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Hospital sanctioned for hiding facts of patient injury; presenting false "accident" defense

Today the Court of Appeals relased its unanimous opinion upholding the award of $53,000.00 in sanctions against Munson Medical Center and its attorney.  The Court of Appeals affirmed the trial judge's award of sanctions after the lower court was forced to declare a mistrial because of the knowingly false defense presented by Munson.

The issue arose in a suit by a patient whose arm was burned by electrocautery during surgery.  The underlying case has since been settled by the hospital.  The hospital had presented a defense suggesting that the most likely cause of the burn on the patient's arm was an "accidental unholstering" of the instrument, even though  hospital representatives knew and recorded that the instrument had never been holstered.  One of the employees in the operating room had made contemporaneous hand-written notes describing how the burn occurred and these notes were filed in the risk management file, however, the facts were not placed in the patient chart.  All of the surgical participants then testified that they knew nothing about how the incident occurred and did not recall any investigation.  The Court found that the facts belonged in the patient chart; that the testimony of the hospital witnesses was patently false; and that it was not ethical for the hospital and its attorney to present an "accidental" defense when they were aware of risk management records demonstrating a contradictory explanation.  Both courts stressed the fact that while hospitals can hide "peer review" investigations into potential breaches of the standard of care, the submission of treatment-related facts to peer review does not confer a right of peer review privacy on the facts, themselves.  And in any event, it is a breach of ethics to present a claim or a defense which a litigant knows to be untrue.

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