Malpractice insurer's "sandbagging" of injured person's attorney is only partially successful
This week the Court of Appeals reversed a decision by a Wexford County jury and returned a medical malpractice case to the trial court for re-trial. We'll see if the highly-partisan Supreme Court's Republican majority allows that decision to stand. In the interim, the Court's explanation of the events that transpired in Estate of Johnson v. Robert F. Kowalski and Trinity Health Michigan, dba Mercy Hosptial Cadillac, is enlightening.
Barbara Johnson was badly bit in the face by one of her horses. Despite severe bleeding, she was able to call an ambulance that transported her to the ER at Cadillac Mercy. She was initially stable in the ER, but later uncontrolled bleeding led to her death.
In the ER, the attending physician, Dr. Robert F. Kowalski, summoned the assistance of an Ear, Nose and Throat specialist and an anesthesiologist. Some time after the latter specialists were consulted, Johnson's bleeding caused her to suffocate and suffer a heart attack. She was revived, but extensive brain damage led to her death five days later. In evaluating the situation, the Johnson family's attorneys attempted to discern whether the other specialists were consulted promptly and whether Kowalski should have entubated Johnson [to assure an airway unobstructed by blood] before he left to attend another ER patient.
The medical record implied that the anesthesiologist was not summoned to the case until after Mrs. Johnson became unstable and when it was too late for him to effect an airway (either by entubation or by a cricothyroidotomy--an airway in the throat created by scalpel). The family attorney put both the ER doctor and the Anesthesiologist, Dr. Charles Urse, on notice of a potential claim. Through communications with Urse's insurer, the family attorney was "sandbagged" into believing that Dr. Urse did not arrive at the patient's bedside until after Mrs. Johnson's bleeding destabilized. To forestall a suit against Urse, the claims adjuster drafted an Affidavit for Urse's signature that purported to confirm that his terse consultation in the chart accurately related the pertinent facts--and documented that Urse did not see the patient while she was stable.
On the basis of this affidavit, Johnson's family did not sue Urse. Nevertheless, when he was called to testify in the case against Kowalski, Urse testified that he was at the bedside of the patient, deliberating treatment options with the other doctors, before Mrs. Johnson's bleeding destabilized. This implied to the jury that the ER doctor had timely sought consultation from appropriate specialists.
The sandbagged Plaintiff's attorney then attempted to admit Urse's affidavit and his insurer's correspondence deflecting suit, in order to demonstrate to the jury that Urse was now lying to protect Kowalski. The trial judge refused to admit the affidavit or the insurer's correspondence, despite Urse's claim that he knew nothing about the context of the preparation of the Affidavit. After the jury ruled against the Johnsons, their attorney appealed.
The Court of Appeals issued a unanimous opinion reversing the lower court and providing for a re-trial of the case. It concluded that since a reasonable juror could decide that Urse's trial statements were inconsistent with the statements made to avoid a suit against himself, the judge erred in refusing to admit these statements--solely for the purpose of assessing Urse's credibility. Even if the case is re-tried, however, the family will still have been "sandbagged" [the Court of Appeals' term, not ours]. The jury may still find that Urse is now telling the truth about when he was consulted, the condition of the patient when he arrived at her bedside, and that he may have been negligent in failing to promptly intubate the patient. In that case, he will have avoided a trial on the merits of the claim against him by deflecting responsibility during the investigation stage.