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Court "elevates form over substance;" dismisses malpractice claim on technicality

After 54 year-old Edris Ligons underwent a colonscopy, she started suffering vomiting, diarrhea, chills and fever.  Her husband took her to Crittenton Hospital where she was treated by Dr. Bruce Bauer and the Rochester Emergency Group.  Bauer treated her for gastroenteritis and dehydration and sent her home.  She continued to experience severe pain and returned to the E.R. the following day.  She was admitted with a perforated colon, peritonitis (or infection in her abdomen caused by leakage of bowel contents) and severe sepsis.  She died within the week. Her Estate filed suit against Bauer and his practice, alleging that he didn't do the tests that the standard of care required before dismissing Ligons; and that if Bauer had ordered those tests, Mrs. Ligons would have been timely diagnosed and treated--preventing her death.

The defendants asked the Court to dismiss the claim, arguing that Ligon's voluminous Notice of Intent (NOI), and the Supplement NOI filed weeks later, were inadequate to apprise them of the nature of the Estate's claim.  They also argued that the Affidavits of Merit filed by the Ligon's two reviewing doctors were inadequate.  The Trial Court rejected this claim, but on appeal by the defendants, two Court of Appeals' judges ordered the permanent dismissal of the lawsuit.

The Court of Appeals judges agreed with the lower court that within the 19 paragraphs identified by the plaintiff Estate, there was adequate explanation of the nature of the Estate's claim.  They also agreed that the supplemental NOI tied these allegations together to spell out the family's theory that the one day delay in diagnosis meant the loss of Edris' chance for successful treatment.  Nevertheless, two of the judges agreed the case should be permanently dismissed. 

They ruled that the two Affidavits of Merit filed by the family's doctors were defective because they did not contain the one paragraph from the supplemental NOI confirming the family's argument that the delay caused the perforated colon to lead to a fulminant infection that could no longer be treated successfully.  The dissenting judge disagreed vehemently, noting that the ruling "elevated form over substance."  The dissenting judge pointed out that the two affidavits complied with the legislative gate-keeping goal of assuring that the malpractice claim was meritorious.  Unspoken was the confirmation that the Estate had served upon the defendants and the court pleadings which demonstrated a good-faith effort to place them on notice of the details of a valid professional negligence cause of action. 

The defendants suffered no prejudice from alleged deficiencies that could only be identified through a picayune search for semantic defects, and the Ligon family deserved to have a hearing on the merits of their allegations.  We're betting that the Supreme Court majority will see this case differently on appeal, given that both the NOIs and the Affidavits of Merit meet its more reasonable standard of good faith and fair notice.

Thompson O’Neil, P.C.
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