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Court reinstates improperly dismissed malpractice action filed prematurely by Conservator

John Zappia, M.D. and others were sued by Carrie Bacon arising out of negligent administration of anti-seizure medication.  She had not filed for a Guardianship or Conservatorship, however, after filing suit, her boyfriend petitioned the Probate Court to deem her incompetent.  When the Court concluded that she did, in fact, need a Guardian and Conservator, the malpractice defendants asked the Court to dismiss her case because it wasn't filed by her Conservator.  The Oakland County Circuit Judge promptly did summarily dismiss the case.

The Conservator appealed, noting that Bacon was not deemed incompetent and had no Conservator when the action was filed, and therefore the Judge's dismissal was inappropriate.  The Court of Appeals agreed and reinstated the case.  The higher court pointed out that since Bacon had never been ruled incompetent at the time the malpractice action arose, it was completely inappropriate to suggest that her legal action could not be filed without a conservator.  The malpractice defendants' devious technical defense was rejected, although it did result in increased delay and expense to the victim and the court. 

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