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Defendant's attempt to avoid a second trial in malpractice wrongful death claim is denied

The Estate of Sherida Stanley sued Krishna Jain, M.D. after the 34-year old bled to death following Jain's failed attempts to establish a temporary catheter.  The woman suffered from kidney disease and required dialysis.  She developed peritonitis and doctors at Borgess Medical Center decided that her peritoneal catheter should be temporarily replaced with a catheter in her neck. 

Dr. Jain was consulted and made three attempts to establish the catheter.  He believed he was successful on the third attempt and sent the patient off to radiology to confirm that the catheter was patent.  The radiologist called him back into the case moments later, pointing out that the catheter was not in the blood vessel and an internal bleed had occurred.  A chest tube was inserted and 1200 cc of fluid was drawn out of Stanley's chest.

Jain ordered four units of blood for Stanley, however, only one matching unit could be located. He also ordered an evaluation by a cardiothoracic surgeon, in case Stanley needed a thoracotomy.  The physicians decided that Stanley was "clinically stable" in the ICU so no other actions were taken.  Approximately two hours later, while a nurse was suctioning Stanley's endotracheal tube, Stanley began coughing and 800 cc of fresh blood filled her chest tube.  CPR was instituted, she was taken to surgery and died on the table.  On pathology exam, it was found that she had small tears in the areas where the catheterization attempts were located and that she had bled to death.  The family sued Dr. Jain.

After an eight day trial, the jury could not reach a verdict so a mis-trial was declared.  The Defendant then asked the Court to hold that the plaintiff could not prove causation through a "qualified expert" and sought dismissal of the case.  In support of this motion, the Defendants filed affidavits by the cardiothoracic surgeons at Borgess, apparently claiming that they would not have performed surgery on Stanley, regardless of Jain's actions, meaning that she would have died from the vessel tears regardless of Jain's negligence in responding to them.  The Court ruled that since the family didn't list a cardiothoracic surgeon to testify, the case should be dismissed.

On appeal, the higher court unanimously rejected this outcome.  First, it noted that the Michigan Supreme Court had previously rejected the argument that a defendant doctor's associates could create a conclusive defense by claiming that they would not have taken action, regardless of the merits of plaintiff's claims.   The Court of Appeals panel held that since the Defendant's late and inappropriate motion raised a new defense, it was not inappropriate for the plaintiff to identify a new expert to respond to this new causation defense.  It also held that under the pertinent statute, a witness testifying with regard to causation was not required to meet the qualifications of the specialty practice most involved in causation proofs.  The latter requirement applies only to standard of care testimony offered by or against a party. Since the cardiothoracic surgeons were not parties, a witness describing what "would have happened" if Stanley's problems had been timely addressed did not need to share their precise qualifications.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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