Court of Appeals addresses "notice" requirements in medical malpractice

Kelly Sue Rousseau died of a pulmonary embolus.  Her family argued that the young woman should have been prescribed medication to prevent a pulmonary embolus, that the doctor erred in prescribing her a birth control pill that made her more susceptible to an embolus, and that the nurses caring for her did not adequately monitor her condition.  All of the health care providers sought summary disposition, complaining about the alleged lack of specificity in Rousseau's family's Notice of Intent (NOI).

The trial court granted the nurses' motion, finding that the family's general allegations that Rousseau should have been monitored more closely for signs of increased blood pressure or deep vein thrombosis (DVT) were too general, as they did not specify any parameters which the nurses should have met.  It denied the physician's motions, however, holding that the general allegations made by the family were adequate to apprise the doctors of their alleged fault:  the family felt that giving Kelly Sue birth control pills made a DVT and pulmonary embolism (PE) more likely, that a proper blood thinner should have been administered to reduce this risk, and that when the young woman showed signs of DVT and PE, the doctors delayed too long in responding.

This holding is consistent with the Supreme Court's direction regarding the adequacy of a malpractice victim's NOI, but it is still a harsh doctrine.  The purpose of a pre-suit Notice is to advise "potential malpractice defendants of the basis of the claims against them."  When this rule results in the dismissal of a claim not because the [in this case] nurses "did not know the basis of the claims against them", but rather, because the victim did not adequately explain the parameters of that claim, the intent of the notice is not being served. 

Everyone involved in the Rousseau v. Masuga claim knew that the family was alleging the nursing staff did not take adequate precautions to monitor Kelly Sue's degenerating health and to communicate her vital signs and clinical condition to the physicians.  The purpose of a  "notice" had been served:  it should be left to the victim's experts' Affidavits of Merit to document the specifics of the malpractice claim to the expert health care providers (who, quite frankly, should already know those specifics, anyway).