Rare malpractice win is upheld--even by Judge Kirsten Kelly
Karen Swanson sued Dr. Kimberly A. Pummill and Grand Blanc Plastic Surgery, after Pummill botched her breast surgery, resulting in deformities that apparently included a partial mastectomy and loss of a nipple. The surgery was apparently conducted so poorly that even the subsequent treater confirmed a breach of the standard of care (although his opinion on that subject was not admitted in the trial because Swanson's attorney had not identified him as an expert witness on standard of care). The jury awarded Swanson just over $300,000.00--nearly the maximum she would be allowed under the malpractice "cap" and the doctor's insurer appealed.The Court of Appeals panel, including Judge Kirsten Kelly who could count the opinions she has authored in favor of victims on one hand, found no merit in any of the "errors" the doctor's insurer claimed. The primary error alleged was the trial judge's ruling that Swanson's attorney could impeach one of Pummill's experts about whether she, personally, had been sued 5, 8 or even 10 times, previously. In her deposition the expert, Dr. Lauran Bryan, had admitted being sued for incompetent breast surgery only "about 5" times, while the Defense attorney subsequently admitted she had been sued at least 8 times. [Just the fact that this is who the defense would select as an expert witness tells you something about the strength of the defense case.]
The appellate court ruled that "merely being named in an unrelated malpractice suit" is not grounds for cross-examination, failing to tell the truth about the number of suits raises an issue of credibility. Furthermore, when the Defense ultimately failed to call Bryan as an expert, the issue was rendered moot.