Court rejects malpractice insurer's claim that stroke victim's lawsuit should be summarily dismissedRose DeMario's family sued Christopher Nichols, D.O., and Oakwood Hospital, claiming that she should have been admitted for a work-up after an ER visit on January 11, 2005. The family maintained that given her presentation, the standard of care required Rose's doctors to admit her to investigate her symptoms. They allege that if Rose had been admitted for a work-up relating to TIAs (transient ischemic attacks) and stroke, Rose would not have suffered a fatal stroke the following week. The family argues that a proper work-up would have identified Rose's acute vascular insufficiency condition, allowed for timely treatment, and saved her life.
The Defendants' insurer argued that Rose's family's case should be dismissed because the insurer claimed the family could not prove that Rose had a probability of a better outcome if the condition had been identified and treated properly. The Court of Appeals rejected summary disposition based on this argument, noting that under recent cases decided almost unanimously by the Michigan Supreme Court, a malpractice victim who suffers injury after an incident of alleged malpractice is not claiming a "lost opportunity" for a better outcome; the victim is alleging a traditional malpractice claim of damage caused by professional negligence.
"Lost opportunity" claims are more in the nature of an alleged negligent failure to interrupt a condition that has already been set in motion and caused damage [although some judges would conclude that the entire "lost opportunity" doctrine is a semantic illusion--since victims must prove a probability of damage caused by the missed chance]. In any event, the family will have the opportunity to present their expert testimony to a jury for decision--and the Defendants will have the same opportunity to present evidence that the care was appropriate or that the outcome was not avoidable.