Medical malpractice claim dismissed when court is forced to interpret conflicting tort "reform" rules
In yet one more of the many appellate disputes arising out of the tort "reform" efforts of the 1980s and 1990s, Willie Driver's malpractice claim against Cardiovascular Clinical Associates, P.C. [CAC] was dismissed on a technicality. After he was diagnosed with colon cancer, Driver sued his doctor, Mansoor Naini, M.D., for failing to refer him for a colonoscopy. Naini then filed a pleading blaming CAC for the error. Relying on the statute of limitations provision that allows an injury victim 90 days to file suit after a claim of third-party fault is filed by the Defendant, Driver's attorneys filed an Amended Complaint attempting to join CAC. Attorneys for the Defendants objected, however, because Driver did not serve his Notice of Intent to sue on CAC--only its partner/employee, Naini.
The trial court refused to honor CAC's objection, but on appeal the Court of Appeals reversed. It held that there was an unavoidable conflict between the provisions dealing with third-party fault and the Notice of Intent requirements in medical malpractice. It applied the medical malpractice provisions, as the more specific set of rules, to Driver's situation and dismissed his claim as untimely.
If we were to go back and count, it is likely that at least one-third of the malpractice claims that have been filed in Michigan during the past fifteen years have been decided against the victim not on the merits, but rather on the basis of one technical interpretation or another. It is a sorry excuse for a system of justice and sounds much more like the definition of justice that is applied in the courts of Communist China.
As an aside, the judges did not consider Driver's argument that the dismissal should be "without prejudice" (in other words, not "permanent and binding") because he did not raise that issue in the lower court---where his case wasn't dismissed at all.