Schedule a Consultation | Toll Free: 1-800-678-1307
Trial lawyers specializing in personal injury and civil litigation

Engler Majority fly-specks Notice of Intent and dismisses claim

A medical malpractice claimant is required to file a Notice of Intent--before filing suit or engaging in discovery--explaining why he or she thinks there is malpractice by the Defendant.  In Boodt v. Borgess, the widow of a malpractice victim filed an extensive Notice that the Engler Majority admitted "may conceivably have apprised [Defendant] of the nature and gravamen of plaintiff's allegations".   Plaintiff alleged that the defendant surgeon perforated the decedent's bowel, and "failed to timely recognize the perforation and stop the anticoagulation and order an echocardiogram".  Plaintiff alleged that defendant's negligence caused decedent's death, but accoding to the Engler Majority, did not explain the "manner in which [defendant's failure] was the proximate cause of the injury claimed".....

Because Plaintiff did not--in the earliest notice--"connect the dots" and inform her deceased husband's surgeon that his failure to recognize a bowel perforation (and to respond to it so that her husband did not "bleed out" ) caused her husband to "bleed out" and die, her claim was dismissed.  Because the Defendant did not raise the issue of the adequacy of the Notice of Intent until after the statute of limitations had run, she could not re-file the case with an amended notice.

The court had  previously held that since the required Notice of Intent must be drafted pre-suit, pre-discovery, and for the most part pre-investigation, "the claimant is not required to craft her notice with omniscience".  It is a travesty of justice that a widow's claim can be permanently dismissed on the basis of a technicality, where the deciding Justices essentially concede that her claim fairly defines the issues, in advance, to a defendant having superior knowledge and resources, and who has suffered no prejudice from what the Court considers to be inartful wording.  Only a nincompoop could fail to understand that failing to recognize a perforated artery, failing to stop blood thinners, and failing to repair it would essentially cause the patient to bleed to death, suffering life-threatening hypotension and hypoxia.

Persons looking to the Michigan Supreme Court for justice have once again been disappointed.  The decision of the Court of Appeals was reversed and Mrs. Boodt will not have her day in court.  On the other hand, Justice Taylor's big-money campaign contributors once again got what they paid for.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
Fax: 231-929-7262