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Court reverses lower court and reinstates malpractice claim originally dismissed as a resulty of defense "gamesmanship."

In Wade v. McCadie, D.O., the plaintiff sued his family doctor and the doctor's practice, alleging that he suffered renal and kidney failure as a result of McCadie's failure to address his chronic hypertension.  Wade made the mandatory statutory request for all of his medical records prior to suit.  He prepared the mandatory Notice of Intent to Sue and also made a repeat demand for his medical billings and other lab reports and information which the Defendant had not provided.  The Defendant did not respond.

Wade's attorneys then filed suit.  They did not, however, file an Affidavit of Merit with their Complaint, relying upon the Defendant's failure to fulfill his statutory duty to provide copies of "all" of Wade's records.  By statute, McCadie's failure to provide the records conferred on Wade an additional 90 days after filing suit in which to file the Affidavit.  In the interim, however, the Defendant's insurer sought summary disposition based on Wade's failure to file the Affidavit.  The defendants argued that Wade's lawyers had all of the records that Wade needed, and the trial judge agreed.

The Court of Appeals reversed the summary disposition of Wade's claim, refusing to reward the defendants' gamesmanship. The majority, which surprisingly included Kirsten Frank Kelly--who virtually always votes with the insurer on personal injury cases--pointed out that the trial judge had "rewarded the defendants for their gamesmanship" and refused to sanction a procedure whereby the defendants could ignore the plain language of the governing statute and simply provide Plaintiffs with those records the defendants deemed "sufficient."  It also rejected the argument that billings are not part of a patient's medical record, pointing out that they corroborate diagnosis codes and treatment dates.

In a sad commentary on his judicial acumen, Judge Patrick Meter would have upheld the outcome.  He would have ignored the plain language of the statute and conferred upon health professionals the right to supply potential claimants only with those records which the Defendant deemed "sufficient."  In the same month, Meter also dissented from another panel of the Court of Appeals which allowed a mistreated dental patient to proffer scientific testimony about the impact of her dentist's accidental poisoning of the patient.  I guess we know what to expect from Meter, as soon as we know whether the parties are well connected to special interest groups.

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