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

Harsh laws and ineffective advocacy result in dismissal of three victims' cases this week

This week, three injury claims were dismissed, due to a combination of harsh "tort reform" laws and opinions, ineffective representation and perhaps some judicial bias.  The auto injury claims of Donald Trimble and Dena Brewer were dismissed because they did not document that their injuries "impaired their normal life," while the medical malpractice claim of Ofelia Green was dismissed because her treating doctor refused to testify at trial and the court wouldn't admit his records.  All three cases were basically decided on technicalities related to tort "reform" and not on the merits of the victims' right to recovery.

With regard to the auto negligence claims, Trimble and Brewer were both occupants of a car that was rear-ended by a truck owned by Central Transport International.  No one disputed that they were injured or that they had undergone a long course of treatment lasting more than three years.  Nevertheless, the Court noted that simply because "plaintiffs underwent lengthy treatments that are still ongoing as a result of the injuries sustained in this accident does not establish that the injuries affected their abilities to lead their normal lives."  Applying this harsh interpretation, the Court noted that both plaintiffs were previously deemed disabled by SSA standards and had completely failed to produce any evidence of the impact of their injuries on their daily lives.

In the malpractice claim, Ms. Green sued the surgeon who performed her knee replacement, Michael Baghdoian, after a subsequent surgery disclosed that he had installed the prosthesis backwards.  She sued to recover for the complications she suffered as a result of the surgeon's error.  Unfortunately, however, the follow-up treater refused to cooperate in her case or to testify at trial.  Although he gave testimony during discovery, the defendants had limited his deposition to "discovery only" and the Court would not allow it to be read at trial.  Furthermore, because Ms. Green's attorney had not presented the testimony of any custodian or keeper of the doctor's records at trial, the Court refused to admit Ms. Green's records that described the underlying error committed by the Defendant.

Even though Ms. Green had hired another orthopaedic surgeon who testified that Baghdoian had breached the standard of care, the case was dismissed without going to the jury because Green's paid expert's testimony was based on the explicit findings of the subsequent treater, as recorded in his deposition and records. Under current "tort reform" rules, no matter how reliable the latter evidence may be, it must be admitted into evidence at trial, or the testifying expert may not rely upon it.  Green's lawyers raised several exceptions to this "hearsay" rule, but the Court of Appeals ruled that none applied.  Startlingly, the Court also held that the subsequent treating orthopaedic surgeon was not an "expert witness" because he would not address whether a breach of the standard of care had occurred.  By the standards of virtually all prior Michigan decisions, a surgeon's description of what he found during surgery is "expert testimony," since a layperson who not be qualified to offer this testimony.

At any rate, despite having a facially valid and genuine malpractice claim that was clearly documented by two surgeons, Ms. Green was not allowed to secure a jury's evaluation or verdict.  Her attorneys and the judges involved should be ashamed of this triumph of "tort reform" over professionalism and justice.

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