Two judges wipe out girl's malpractice verdict on claim of technical flaw in Notice
Sixteen year-old Heather Swanson suffered a ruptured aorta when doctors at Port Huron Hospital removed an ovarian cyst. Her parents filed suit on her behalf, alleging that she suffers continuing digestive problems and a permanent abdominal scar as a result of the surgeon's negligence. Swanson's claim was that as her doctor initiated the laparascopic surgery, the doctor, Jeannie L. Rowe, D.O., failed to adequately locate and isolate the abdominal aorta and failed to penetrate the abdomen in a manner that avoided puncturing the aorta. A jury agreed and awarded her a modest verdict for compensation.
Two judges of the Court of Appeals overturned the verdict and awarded the doctors taxable costs, not because Swanson had not proved her case, but rather because her pre-suit, pre-discovery Notice of Intent did not adequately apprise the professionals involved of how their alleged negligence caused her injury. Inconceivably, the majority opinion contains this claim: "nowhere did she state how the defendants were negligent other than by breaching the enumerated standards of care." This is pitiful: the only way a doctor CAN be negligent is by "breaching the...standards of care" and Swanson had, obviously, "enumerated" those breaches in the Notice and then proved them.
The majority continued, "there is no indication in the notice...how defendants caused or could have avoided the injury" even though the opinion quotes the Notice as stating that the surgeons should have identified the location of abdominal structures, including the aorta, and entered the abdomen at the proper angle so as to have avoided it.
The judges who signed this opinion and denied this young girl's modest verdict--granted after an appropriate trial and supported by expert testimony under the supervision of an experienced trial judge--should be embarrassed. One judge on the panel, Judge Peter O'Connell, a moderate jurist who repeatedly stands out for his independent and thoughtful judgment, dissented from the majority's decision and would have affirmed the jury's verdict.