Michigan Supreme Court returns additional rationality to medical malpractice pre-suit notice rulesThe Michigan Supreme Court decision in Griesbach v. Ross, Fenton and Walled Lake Medical Center received some media attention this week. A jury granted a verdict in favor of Sara Griesbach, suing on behalf of her minor son, against a Phyisican's Assistant after he mis-treated an infection in the boy's leg. She originally sued the D.O. who supervised the P.A. and Clinic, alleging that in two visits to the Clinic, the boy should have been referred for treatment that would have prevented the progression of an infection that ultmately ruined his hip joint. She had outlined her case in a Notice of Intent and filed a timely lawsuit, however, after the statute of limitations ran against the P.A., the doctor and clinic filed a notice alleging that only the P.A., Ross, was at fault, and that it was too late to sue him. The trial judge rejected this argument and allowed the case to go to the jury. After the jury awarded a verdict in Griesbach's favor, the P.A., Ross, appealed.
In May of 2008, the Court of Appeals threw out the verdict. It held that the Griesbach's family was too late in identifying and suing the P.A., Ross. It held that since the original Notice of Intent did not name the P.A., and instead focused upon the doctor with the legal duty to supervise the P.A.'s work, it could not form the foundation for the malpractice verdict. The family argued that it should receive the benefit of the six-month "discovery" tolling period, because until the doctor alleged that his P.A. had never consulted him about Timothy Griesbach's care, the family could not reasonably have discovered that Ross had broken the law by treating Timothy without consulting his supervising physician. The Court of Appeals rejected this claim, holdling that Griesbachs' "discovery" period started when they suspected they had a claim--not when they suspected that the P.A. was at fault.
This month, the Supreme Court overturned the Court of Appeals' decision and sent the case back to the trial court to assess whether the family's original Notice of Intent adequately apprised Ross of the nature of the claim against him. The remnants of the "Engler Majority"--now a minority--stridently objected to this ruling, arguing that the family had not demonstrated adequate compliance with the technical procedures that constitute the medical malpractice "reforms" intended to reduce the number of malpractice claims filed by victims.
While the attorneys representing the family certainly could have been more aggressive and "inclusive" by alleging malpractice against the P.A. in their original notice, this case helps to demonstrate how activist "reforms" have diverted the attention of the law from common sense principles. It is apparently clear that the Walled Lake Medical Center mis-treated Timothy Griesbach in 2002, causing substantial injuries. The family gave timely notice of their claim, and fully described the basis of the claim, to the Clinic and its insurer. Nevertheless, by alleging a breach of the law by its own employee Physician Assistant--and an illegal failure to supervise the P.A. by its doctor, the Clinic has now delayed the ultimate resolution of the claim for eight years....and counting--and perhaps will be able to avoid paying any compensation to Timothy whatsoever.
At least the Supreme Court's recent ruling represents a small step back toward resolving legitimate cases on their merits and not rewarding "gamesmanship."