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Court holds doctor committed no malpractice on date of unwarranted surgery

Insurance defense attorneys were gloating in this week's January, 2012, Lawyer's Weekly over the dismissal of a medical malpractice claim alleging inappropriate eye surgery.  The woman patient sued her eye doctor alleging that he never should have performed the cataract surgery that damaged her eye.  The Defendants argued that the doctor's alleged error occurred weeks before surgery, when he recommended and scheduled the surgery, and that since suit was not filed within two years of the date surgery was first recommended, the claim was not timely.  The woman's attorneys argued that performing the unnecessary surgery was a negligent act in any event, and therefore suit based on the inappropropriate surgery could be brought within two years of the surgical date.

Relying on the "continuing wrong" doctrine which Michigan's Republican justices have expanded to its utmost limitations, the court concluded that the malpractice victim's claim, however meritorious, needed to be filed within two years of the first diagnostic error committed by the doctor.  As a result, the doctor is immune from liability for any related errors he committed after the first error--if the first error wasn't sued upon within two years.  (Thus, if the surgery had been delayed for two years, and the victim had no damages in that two year interim, the two-year statute would expire before the actual injury had occurred...)   Michigan:  a great place to practice medicine; not a great place to be malpracticed upon.

Thompson O’Neil, P.C.
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