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Court dismisses malpractice claim because dead woman's expert was "speculating" about potential to survive

Melissa Walker underwent bariatric surgery in 2000.  In 2008, her doctor, Brenda Zook, M.D., determined that Walker was malnourished after a prolonged period of diarrhea.  Zook sent Walker to a bariatric surgeon to assess whether her gastric bypass needed to be reversed.   The surgeon concluded that Walker's problem was a lack of protein in her diet, rather than the need to reverse the bypass.  Zook hospitalized Walker for sevreal days, but then released her, telling her to return to the Emergency Room "if she got worse."  She made two return trips to the E.R., seeking to be admitted, however, she wasn't admitted and died of septic shock on the morning of the second E.R. visit.  Here family sued Dr. Zook claiming, in essence, that Zook should have insisted on a reversal of the bariatric surgery.

Walker's family presented the testimony of a similarly credentialed physician who testified that Zook should have insisted on the performance of the reversal, given Walker's persistent condition.  The Court held that since Walker and the surgeon would have been required to agree with the decision for surgery, it was idle speculation by the doctor to opine that Walker would have undergone reversal and survived.

It seems to us that the real problem here is not speculation by the family's expert, but rather the failure to concisely present the issues:  Zook could reasonably rely on the surgical opinion of the bariatric surgeon, however, if Walker's condition was severe enough, Zook--as the supervising physician--owed a duty to take further action:  Under the law, if that action would PROBABLY have resulted in life-saving surgery, Zook's negligent failure to act was a cause of the death.

Regardless of how the case is analyzed, it stands as another example of a bad outcome and the unnecessary death of a relatively young woman, probably contributed to by medical negligence, for which Michigan law provides no remedy.

Thompson O’Neil, P.C.
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