Court upholds malpractice verdict over insurer's frivolous defenses

Tim Egeler sued Bradford Wylie, M.D. and Chelsea Area Primary Care, PLLC, after Wylie prescribed an antibiotic for Egeler's wife that is contraindicated.  His wife suffered from myasthenia gravis, and the antibiotic Ketek contains a clear product warning, advising doctors not to prescribe for M.G. patients:  the warning alerts doctors to the potential for a life-threatening respiratory collapse.

Within a half hour after taking the antibiotic Wylie prescribed, Dorothy Egeler collapsed and suffered severe anoxic brain injury before she was revived.  Nine days later she was removed from life support and passed away.  The doctor's insurer denied that the respiratory collapse was related, claiming that her death was coincidental.  The jury didn't buy that and awarded that ultimately resulted in a judgment of more than $800,000.00.  The Defendant appealed arguing several claims of error:  the Court of Appeals unanimously dismissed the claims and upheld the judgment, with minor adjustments.

The insurer first objected to the court's order denying the Defendants the right to present expert witnesses other than the Defendant, to support the defense claim that Dorothy's respiratory collapse wasn't caused by the inappropriate antibiotic.  The court noted that the Defendants never served a written response to the victims' Notice of Intent, as required, and that their Affidavits of Meritorious Defense were "grossly deficient".  The Defendants also refused to provide the victim's family with proper explanation of their affirmative defenses in the discovery phase of the litigation.  Under the circumstances, the judges concluded that it was not an abuse of discretion for the lower court to limit the Defendants' retainer of expert witnesses.

The insurer also argued that the lower malpractice non-economic damage cap ($280,000.00) should be applied because Dorothy was on a ventilator from the time of her collapse until she died:  based on Young v. Nandi, the Defendants argued that the victims could not prove that Dorothy's brain damage [a threshold condition for recovery of the larger damage amount] was permanent. The Court of Appeals rejected this argument, noting the overwhelming evidence of permanent, catastrophic brain injury.

The insurer also objected to how the Court applied the non-economic cap on damages to the facts of the Egeler verdict, arguing the computations should have reduced the jury's verdict below the current cap level.  Again, the Court dismissed these arguments, noting that the Court's computations were consistent with existing law in failing to apportion past and future damages and in applying the cap according to the date of the verdict and judgment, rather than the cap as of the date of injury. (In Michigan the caps are adjusted by an annual cost of living factor.)

The Court did reduce the taxable costs awarded and sent the case back for explanation of how the lower court determined the $70,000.00 case evaluation attorney fee award.  Taxable costs awarded after a verdict do not include all of the expenses incurred by the prevailing party.