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Court of Appeals addresses adequacy of 14 page Notice of Intent

In Esselman v. Garden City Hospital, the Court of Appeals was again required to address a group of medical defendants' claims that the wrongful death claim against them should be dismissed because they weren't adequately apprised of the nature of the allegations against them.  The majority of the judges on the panel deciding the case agreed with the trial judge that the decedent's family's notice of intent (NOI) was adequate.  Champion of the wealthy and well-connected, Henry Saad, disagreed and would have dismissed the claim.

David Esselman was admitted to Garden City with gall bladder symptoms on September 26, 2003.  His condition did not improve and he gradually became feverish.  By September 29 at 8 a.m., he was running a fever of 103 degrees and was scheduled for surgery to remove his diseased gall bladder.  He did not survive the surgery.  According to the death certificate, he died of gangrenous cholecystitis [a diseased gall bladder] and sepsis, with a duration of more than 24 hours.

On September 26 of 2005, the family filed their 14 page NOI.  The Court of Appeals described the NOI as containing a "length[y] factual recitation of [the hospitalization] including detailed discussions of the treatment provided by various individuals as well as the acts and errors of the individual defendants."  It also contained a two-page recitation (paragraphs a-m) of the breaches of the standard of care, however, it did not particularize these breaches to individual named defendants.  After the waiting period had passed, on March 28, 2006, the family filed their malpractice complaint with four Affidavits of Merit from qualified specialists and nurses.

The Defendants argued that the NOI wasn't specific enough to provide them with adequate notice of the Plaintiff's complaints, and they cited several decisions by the appellate courts which have apparently applied a very high standard of proof to these pre-suit notices.  The lower court rejected the Defendants' arguments that they weren't adequately informed, pre-suit, by laypersons, of their respective mistakes, and the Court of Appeals agreed.  It noted that the Defendants enjoyed complete access to the medical chart.  The majority judges pointed out that the Defendants were elevating "form over substance" and quoted an earlier holding that it "strains credulity to conclude" that the Defendants would not understand the nature of the plaintiff's suit.

Henry Saad, though, filed an 8 page dissent, arguing that the NOI was inadequate because it wouldn't allow the Defendants enough information to attempt to settle the claim pre-suit.  He even went so far as to quibble over the Defendants' access to the medical records, even though they must be attached to the NOI and by statute the providers receiving and NOI have unfettered access to the patients' chart and other treaters.

Most absurd was Saad's suggestion that if the 14 page NOI were just a little more individualized by provider, the Defendants would understand the nature of the claims against them and suit could be avoided by a negotiated settlement.  This argument is either pathetically naive or dishonest.  It is common knowledge that insurers NEVER use this NOI period to attempt to resolve claims, and to suggest otherwise is disingenuous to a point of intellectual dishonesty.  If judges really wanted to encourage settlement and to discourage meaningless delay and litigation, they would stop rewarding malpractice insurers who utitilize obtructionist tactics that are not intended to resolve claims but which rather seek to derive artificial, technical advantage by creating loopholes and traps. 

Cases should be decided on their merits, and specialized procedures should assist and inform in that endeavor. If a "highly detailed" NOI has been filed and four specialists have filed supporting Affidavits of Merit, the case should be about the medicine involved, not the nuances of legal draftmanship.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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