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Supreme Court overturns Saad mistake; reinstates verdict against doctor

On July 28, the Michigan Supreme Court overturned a Court of Appeals decision that had denied a jury verdict to Kelly Sue Symons.  Symons had sued Dr. Robert Prodinger and his P.A., Dale Russell, after the P.A. failed to diagnose her husband's heart attack.  A jury in Calhoun County entered a wrongful death verdict in favor of Symons after the P.A. failed to diagnose Symons' husband properly and he died the following day. 

Prodinger's attorneys had stipulated that Prodinger was the P.A.'s supervising doctor, but after Prodinger was held responsible for Symon's death, Prodinger appealed, arguing that its concession of respondeat superior did not obviate the victim's duty to plead vicarious liability.  In other words, through the trial, Prodinger's counsel acknowledged that the P.A. was acting under Prodinger's license and that Prodinger was responsible for his negligence by statute, but when the jury found malpractice, Prodinger's attorneys claimed that the victim's family did not alert Prodinger to his accountability for P.A. Russell's error.

While describing this appellate argument out loud makes it sound ludicrous, Judge Henry Saad and another Court of Appeals judge would have honored the defense.  They ruled that despite the statutory provision holding the supervising doctor responsible for the P.A.'s error, and despite the defense attorney's trial stipulation, the verdict should have been overturned because the victim's family did not adequately describe the doctor's duty in the family's pleadings.

On appeal, the Supreme Court rejected Saad's opinion. Without dissent, the high Court held that Prodinger could not stipulate to a verdict instruction that held Prodinger responsible for the P.A.'s negligence, and then appeal that point of law after losing the case.  The Supreme Court adopted Justice Markey's dissent, which had noted that a party cannot try an issue by express or implied consent, and then seek a "second bite of the apple" if it loses. 

The dissent also disparaged Prodinger's argument that a doctor couldn't be held responsible for a P.A.'s error if both worked for a professional corporation.  The dissenting judge noted that such an interpretation of the health care providers' responsibilities would essentially eliminate the statutory duty of supervision which is inherent in the Michigan law allowing P.A.s to practice under the license of a physician.  The Court of Appeals judges agreed that in determining the threshold qualifications of an expert witness in a malpractice case, P.A.s do not "specialize" as doctors do, and that they are held to the same standard of care as the physician who is supervising their work.

Thompson O’Neil, P.C.
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