Estate of Edgar Brown can file a new malpractice action against Dr. Peter Barrett
This week the Court of Appeals upheld the lower court's ruling that Brown's Estate can file a new death claim against the doctor whom the family claims was responsible for Brown's death. This culminated the third trip to the Court of Appeals following Brown's 2001 death. The family argues that Barrett should not have sent Brown home from the Hospital after Brown fell from the roof of his home and suffered multiple injuries. The family argued that his death resulted from pneumonia caused by the combination of his injuries and the insertion of a chest tube to inflate his lungs, and that his discharge was premature and unsafe. He died in an ambulance on his way back to the hospital one day after discharge.The insurer for Barrett attacked the sufficiency of the Notice of Intent the family filed and also attacked the qualifications of the surgeon who signed the Estate's Affidavit of Merit. It also argued that the Affidavit of Merit inadequately explained the nature of the family's complaints against Barrett. Finally, it argued the the Estate improperly could not re-file its Complaint because the statute of limitations had run while the Estate's procedural filings (the Notice (NOI) and the Affidavit (AOM) were deficient.
Over the past several years, other issues have been sorted out in favor of the Brown family and this month, the Court of Appeals confirmed that the family's statute of limitations was "tolled" while the case was originally pending--even if the Affidavit of Merit turned out to be inadequate. The Court held that looking at the Notice of Intent in its entirety, it was clearly adequate to apprise the Defendant of the nature of the family's claim. "...the notice of intent could have been better, but was sufficient..." since it clearly explained to the defendant and his insurer that Brown "was suffering from diagnosable life-threatening conditons that inevitably became fatal because defendant simply failed to do anything about those conditions."
The Court also rejected the Defendant's claims that the family's case could not be re-filed because their Affidavit of Merit should have been signed by a surgeon who was a thoracic surgery sub-specialist. The Court noted that the Plaintiff's AOM was signed by a General Surgeon, and that the Defendant is a General Surgeon with additional sub-certfication in thoracic medicine. Since the over-all care of Brown (including his ruptured spleen, for example) was a matter of General Surgery, and since the claims against Barrett "did not require specialized testimony about thoracic medicine" the AOM need not have been signed by a thoracic surgeon. "Not all specialties and board certificates must match" provided the Plaintiff's expert specializes or is certified in the subfields that are relevant to the specialty engaged in at the time of the malpractice.