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Is a malpractice victim's family limited to the evidence they had before they filed suit?

  Two separate panels of the Court of Appeals recently answered this question in the negative, in response to technical procedural motions by malpractice insurers, attempting to limit claims to the evidence that was known to the victim's family prior to discovery being undertaken.

    In King v. Reed and Jackson v. Detroit Medical Center, the Court of Appeals was faced with motions by the defendants' insurers to prevent the victims' families from amending their respective lawsuits to include claims based on evidence that they uncovered during discovery. The two Appeals Court panels rejected this novel argument and reinstated cases that the trial courts had dismissed.

     In King, the victim underwent surgery for a pre-cancerous condition called Barrett's Esophagus; complications ensued and he died within weeks.  The pathology report documented that he did not have either Barrett's Esophagus or high grade dysplasia.  He was an extremely low risk for cancer and probably did not qualify for the extensive and risky surgery.  His family filed suit and during discovery they sought the Court's permission to amend their complaint to allege breaches of the standard of care which they contended occurred during surgery and in post-surgical management.  The trial judge allowed the amendment to include claims of malpractice that the family only learned of while taking depositions of the treaters, but the court later struck those same claims, when the Defendant argued that the family's proofs must be limited by the Affidavit of Merit they filed before discovery when the case was initiated. Based on this limited evidence, the jury entered a verdict in favor of the doctors.

    In Jackson, the family of Beverly Jackson filed suit after she was hospitalized on Christmas Eve and died early on Christmas morning of what the medical examiner called "acute codeine intoxication".  Like the King family, the Jackson family initially filed suit based upon the medical examiner's conclusion that she had been administered too much codeine, however, as discovery went forward, they sought to amend their claims to include an argument that the medical resident and nursing staff were negligent in responding to lab reports at 9 p.m. which demonstrated a "panic level" of blood platelets.   At the same time, and unknown to the victim's family, the Defendants asked a new medical examiner to open Beverly's case. 

     The new medical examiner filed an amended death certificate listing a blood platelet disorder, rather than codeine intoxication, as the cause of death.  The trial court agreed with the insurer's attorneys that the Plaintiff family could not amend its complaint to allege the mismanagement of blood platelets, because that theory was not fully developed in the Plaintiff's original Affidavits of Merit.  The trial court in Jackson dismissed the case entirely.

     Both panels of the Court of Appeals reversed, and the two death cases were reinstated.  The Court of Appeals judges relied heavily upon the fact that it would be unfair to limit the victims' families to the facts they knew before they had even heard the testimony of the people involved, and to prevent them from responding to new arguments raised by the defendants.  The judges also noted that by requiring an initial Affidavit of Merit, authored by a qualified medical specialist and based upon the content of the medical chart, thoroughly protects the defendant and the legal system from frivolous claims, even if subsequent discovery discloses that the original chart was incomplete or mistaken in some respects.  Thus the purpose of requiring an Affidavit of Merit initially is fully satisfied if the victim is allowed to file a subsequent amendment to conform to the evidence.

     The Court of Appeals' decisions in King and Jackson seem so reasonable and unobjectionable, one wonders why these cases reached the appellate level to begin with:  who could reasonably claim that a victim's family should be limited to theories incorporated in an allegedly mistaken Death Certificate, before they even had the opportunity to investigate the death?  Nevertheless, these cases will probably be appealed to the Supreme Court, where insurers know they will have a receptive ear with the four Engler appointees who control outcomes.  It would not be the first time in the past five years--indeed in the past ten days--that the "gang of four" chose to recognize and enforce a seemingly grossly-unfair legal argument that had previously been derided and scoffed at by all experienced lawyers.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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