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

Malpractice claimant gets "homered;" substance of claim is dismissed

Ruth Aldrich took over her husband's medical malpractice claim after he died from an unrelated cause.  Her husband, Steven, had sued Robert Genovese, M.D., and Rodney Diehl, D.O., for malpractice in failing to respond properly to a morbidly prolonged erection (i.e., as everyone post-Viagra advertising now knows, this condition is called "priapism" and should not continue for more than four hours). Adrich had been admitted  to Mid Michigan Medical Center for chest pain and first noticed the erection around 5:00 a.m.  It was not relieved for about 36 hours.

Aldrich did not inform his doctors of the condition until around 9:00 a.m., at which time his nitroglycerine drip was discontinued.  Dr. Diehl performed a cardiac catheterization at 10:50, and later testified that he was unaware of the continuing priapism during that procedure, despite the fact that the chart reflected the condition was observed by nurses preparing Aldrich to be cathed.  In fact, nothing further was done in response to the condition until about 8:00 pm when Diehl ordered a cold compress.  That was ineffective and a urologist was contacted by hospital staff at 9:30.  The urologist, Dr. Richard Mills, performed an aspiration procedure which was ineffective, and finally placed a shunt in the penis, surgically, at 4:30 p.m. the following day.  Aldrich never regained sexual function after that procedure.

In a complicated set of rulings, the appellate court first reversed the trial court's holding that the Notice of Intent and multiple physician Affidavits of Merit filed by the plaintiff family were inadequate.  The court held that the trial judge's conclusion that the latter pleadings did not meet statutory requirements was simply wrong.  It refused to recuse the judge from the case, however, in response to the Estate's argument that he enjoyed too many ties with Mid-Michigan Medical Center. The judges did not believe that his previous law firm's representation of the Center within the previous two years, or a handful of additional ties, were sufficient to create an appearance of bias.

The Appellate Court then moved to the Defendants' claim that the Estate could not prove that any negligence of the Defendants caused Steven's permanent sexual dysfunction.  Initially, the Estate had relied upon the treating urologist, Dr. Mills, to prove that earlier intervention would preserve Steven's function if action was taken within "6 to 8 hours."  Mills' deposition was confusing, however, and the trial court had refused to dismiss the plaintiff's case on causation grounds.  The Defense attorneys then approached the local doctor ex parte, (i.e., without notice to the Estates' attorneys) and persuaded him to execute an affidavit "clarifying" his opinon to state that he would have needed to intervene within one hour in order to preserve sexual function.  The trial court expressed concern that a HIPAA violation of patient confidentiality had occurred, refused to dismiss the case on Mills' "clarified" opinion, and allowed the Estate to add a new expert to respond to Mills' "clarified" opinion.

On appeal, the reviewing judges held that each of the latter decisions was an abuse of the wide discretion available to the lower court judge.  They refused to follow a prior Federal decision confirming a HIPAA violation under these circumstances, and ruled that it was an abuse of discretion for the judge to allow the Plaintiffs a new expert, since the local urologist had only "clarified" his opinion in response to pressure from the Defendants' attorneys.  Since the Estate now had no expert testimony to prove that delay caused Steven's sexual dysfunction, his claim for related damages was dismissed.  The Estate is allowed to continue the claim for the pain and suffered he endured as a result of the delay, however, the essence of the lawsuit had been eviscerated by the Court's ruling.

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