Estate of 2007 stomach surgery patient loses malpractice claim and appeal over procedural rulings in favor of the medical defendants

Vastene Suane Nolen underwent an abdominoplasty and liposuction at William Beaumont Hospital by Dr. Lauran Bryan.  She "recovered fine" and was released the following day, but returned to the ER two days later.  She had suffered a number of pulmonary emboli, which were diagnosed, but no treatment was instituted for more than nine hours after admission. She coded 13 hours after admission and died as a result of a clot detected in the atrium of her heart two hours earlier.  Her family argued that her death was the result of professional negligence.

 The Nolens filed Affidavits of Merit from several specialists. The Defendants secured a ruling from the trial judge that the Plaintiffs could not enter into evidence medical treatises that supported their doctors' claims. As the case developed, some defendants were dismissed and the Court held that the applicable "most relevant" standard of care--and the only surviving claim--would arise from the physicians' response to evidence of pulmonary emboli on admission.  The Nolens asked the Court to allow them to amend their pleadings to make specific the allegation that a STAT echocardiogram should have been ordered, but the Court ruled that the family was bound by its original pre-discovery claims.

After a jury trial, a judgment was entered in favor of the remaining defendants and the famly appealed.  The higher court held that no viable claim had been raised against any Hospital employee, and therefore the Hospital did not belong on the Verdcit form.  The Court also held that while it may have been "improper" for the Defense attorney to read from medical literature during his closing argument--particularly given the motion in limine excluding the plaintiff from using medical literature--the error did not invalidate the verdict because the error was "harmless."

Lastly, the Court rejected the Plaintiff family's claim that Dr. Paul Kvale should not have been allowed to testify about the standard of care.  The Michigan Supreme Court has ruled (in throwing out a victim's expert doctor) that standar of care testimony must come from, and can only come from, a physician practicing the "most relevant specialty."  Even though the court held that "critical care medicine" was the only relevant specialty because that was the context in which the primary treater was involved in the dead woman's care, the judge allowed an expert in pulmonary medicine to testify regarding the standard of care. In order to justify this surprising result, the higher court rejected the trial judge's prior ruling and concluded that the relevant standard of care was "pulmonary medicine." Indeed, the appelate judges "re-wrote history" by concluding that the Plaintiff's critical care expert was not qualifed to testify, but the defedant's expert, who practiced outside what the trial judge deemed the "most relevant specialty" was.