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Rare victory for substance over form in medical malpractice

In Duvall v. Bronson Methodist Hospital, et al., the Court of Appeals issued a rare defeat to insurance attorneys attempting to dismiss a malpractice claim on the basis of a technicality.  As discussed in previous entries on this site, the appellate courts have previously denied a day in court to malpractice victims in reliance upon hyper-technical grounds,  such as failing to address the Notice of Intent to the doctor's last address (where it was served on the office he closed weeks earlier, and forwarded to his remaining office).  Duvall died of a myocardial infarction ("heart attack") while in the Defendants' care and his family produced affidavits of merit contending that the Defendants were negligent in allowing that to occur.  The family's original suit was dismissed by stipulation of the parties because they believed the technical Notice of Intent might not be adequate.  A new notice was served, and the action was re-filed six months later, after the mandatory "waiting period".  Apparently the original Affidavit of Merit was not re-filed in the second filing, or it was lost by the Court--although it was unquestionably served on the Defendants.  The Defendants persuaded the trial court to dismiss the claim for failing to re-file an original Affidavit with the second lawsuit.  The appellate court reversed, unanimously holding that to dismiss the claim under these circumstances, and thereby deny the family its day in court, would be to elevate form over substance--something the Engler majority of the Supreme Court has repeatedly demonstrated the willingness to do.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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