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Malpractice victim can disprove doctor's testimony supporting allegedly negligent nurses

James Ykimoff sued W.A. Foote Hospital and his doctor, David Eggert, M.D., claiming they were responsible for the permanent leg injuries he suffered after surgery.  Eggert was dismissed from the case after the Court ruled that Ykimoff could not admit into evidence contemporaneous statements by the nursing staff to his family, claiming that the nurses encountered difficulty in reaching Eggert when they began to identify evidence of post-surgical complications.  (The court held that these statements were "hearsay" and not competent evidence.)  Without this testimony, Ykimoff's surgical expert did not see any basis in the medical chart to blame Eggert for the poor outcome, and Ykimoff was limited to the claim that the nurses did not act reasonably in notifying Eggert of Ykimoff's deteriorating condition. 

Eggert claimed that no matter what the nurses told him, he would not have responded any differently or any faster than he did, and on that basis, the Hospital argued that Ykimoff's outcome would not have been any better if the nursing staff had complied with Ykimoff's expert's explanation of the standard of care.  The jury rejected this testimony and argument and awarded compensation of nearly 1.5 million dollars to Ykimoff. 

W.A. Foote appealed, arguing that the verdict should be thrown out:  it claimed yet again that since the doctor testified he would not responded any quicker, even if the standard of care required it, Ykimoff could not prove that a nursing breach of the standard of care had harmed him. The Hospital's position was that even if the nursing staff had made timely reports to Eggert, the doctor would have ignored the information and failed to prevent the developing complications.

Ykimoff's experts had testified that the nurses should have reported his deteriorating condition to the surgeon more than an 2 hours before they did, and that with timely intervention, his near-paralysis would have been avoided.  Obviously, the jury accepted this evidence and agreed with it.  Even though Eggert agreed that many of the unreported symptoms were indicative of a developing clot, and even though he operated on an emergent basis when he learned of Ykimoff's condition, he claimed that he would not have operated earlier if he had been apprised of the earlier symptoms. 

The three appellate judges could not agree on the basis for a decision, but all agreed that under the circumstances, the jury was free to disregard Eggert's fairly incredible claims that he would not have acted as Ykimoff's experts predicted if he received timely notice of Ykimoff's deteriorating condition.  The judges refused to apply the holding from a prior decision in Martin v. Ledingham, where the Court had immunized nurses from a negligence claim bsaed upon the treating doctor's helpful speculation about what he would have done.

Judge Gleicher filed a scathing concurrence, rejecting Judge Bandstra's claim that a treating doctor's testimony warrants unusual deference.  She noted that under long-standing Michigan decisions, a jury is free to weigh the credibility and dismiss the testimony of any witness, and that under the circumstances, there was ample question about the veracity and objectivity of the (co-defendant) doctor's testimony in support of his hospital and co-workers.

Thompson O’Neil, P.C.
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