Slick tactics secure dismissal of malpractice claim against Northern Michigan Hospital
A woman named Sherri Martin sued Northern Michigan Hospital and a group of doctors alleging that she suffered serious complications as a result of poor care by doctors and nurses after surgery. For some reason not explained in the reported opinion, the claim against the doctors was voluntarily dismissed by Martin's attorneys: from the context, it appears that Martin's attorneys became convinced that her poor care resulted only from inadequate communication from the post-op nurses to the surgeons.
After the case against the doctors was dismissed, the Hospital asked the court to dismiss the claims pending against its nurses. To support its request, the Hospital's attorneys filed affidavits signed by the treating doctors, alleging that better communication from the nurses would not have changed the care they provided. Martin's attorneys countered with testimony from a doctor and a nurse alleging that the standard of care required "earlier and better reports" from the nursing staff, and testimony from a qualified expert doctor who claimed that with earlier and better reports, the standard of care would have required the [former defendant] doctors to provide a different course of treatment.
On the basis of this evidence, the local judge dismissed Martin's claim, holding that she could not prove that the alleged nursing malpractice "caused" her poor outcome, because allegedly the doctors would have provided the same care in any event. Martin's attorneys pointed out on appeal that the doctors were hardly disinterested witnesses, and that a jury should weigh their testimony, and their substantial bias, against the testimony of Martin's expert, and decide which expert's testimony should be believed. Presumably, Martin's attorneys pointed out that the doctors' loyalty to their own hospital and staff, and their animosity toward the folks who had sued them, might well color their predictions regarding how they would have reacted to better communication from the nursing staff.
Nevertheless, the Court of Appeals upheld the dismissal of Martin's claim, holding that her expert was engaged in improper speculation because his hypothetical case assumed the "real" doctors [the Court's perjorative comparison, not ours] would have done something other than what their affidavits claimed, in order to comply with the standard of care. The panel held that dismissal was warranted because Martin failed to provide "any affirmative cause in fact proof", which we would suggest is simply not true: whether accurate or credible, the apparently qualified doctor who testified for Martin testified that in his opinion the doctors would have comported with the standard of care if properly advised---and avoided the resulting complications. That is credible "speculation" which can reasonably be compared with the "real" doctors' speculation with regard to what they "would have done" under different circumstances.
The result in this case appears to us to be a combination of hard work behind-the-scenes by the insurers and their attorneys, and gullibility in the judiciary. If anything, the "real" doctors (being former defendants who were just sued by this individual, and who work with the remaining defendants on a daily basis) have no more credibility in this situation than a qualified "outside" doctor, and probably even less.