Late-discovered cleft palate patient's medical malpractice claim dismissed
Sydney Adams struggled with ear infections, hearing difficulty, and various other ear, nose and throat maladies throughout her early childhood. She was apparently seen at the North Oakland Ear, Nose and Throat Centers by Carl Shermetaro, D.O., and Bashar Succar, M.D., on many occasions between 2003 and 2008. Her desperate parents finally saw a third ENT expert in October of 2008, and he diagnosed a bifid uvula and ultimately a cleft palate which was then operated upon by a specialist, Jugpal Armeja. Sydney's mother then brought a medical malpractice lawsuit against the two doctors who had failed to diagnose the condition which had been present since birth.
Relying on a standard of care expert who confirmed a violation, and Dr. Armeja's notes that confirmed his opinions about causation issues, the child's mother claimed that the delay in diagnosing and treating Sydney resulted in long-term damages including hyper-nasality, speech defects, prolonged treatment, hearing problems and emotional issues, along with other issues. The Defendants sought summary disposition, arguing that Sydney's attorneys had not created a question of fact with regard to causation.
Unfortunately for Sydney, the Oakland County Circuit Judge granted summary disposition, and she suffered the same fate as a majority of malpractice claimants who find their cases on appeal. The higher court denigrated the proofs offered by her doctors and ruled that her case could be summarily dismissed, despite the fact that an ENT offered the opinion that Sydney would require "intensive therapy" that might not be enough to correct her compensatory behaviors, and despite Dr. Arneja's notes confirming that:
1. "[O]ur preference would have been to repair this at approximately 1-2 years of age..."
2. "[U[ffortunately we are operating on Sydney late..."
3. "...after many speech patterns have been well established..."
4. "This results in outcomes that are difficult to predict regarding speech and hypernasality...intensive therapy [and] secondary surgicaly procedures might clearly be requisite.
5. [T]he ideal time to perform VPI surgery is between three to four years of age before speech patterns become very difficult to correct.
Despite this evidence and confirmation by another specialist that the Defendants violated the standard of care in not timely detecting the problem (she was first seen by a Defendant at 13 months!) Sydney will not get the chance to have a jury decide whether she was a victim of malpractice. Whether this is a failure of her attorneys or of a judicial system biased in favor of doctors and their insurers, will never be known. It certainly appears to us, however, that there was ample evidence to survive a summary dismissal of her case--and taxation of costs in favor of the doctors' insurers! Talk about adding insult to injury...