Malpractice defenses based on technicalities are dismissed by Court of Appeals

Two cases where medical malpractice insurers sought dismissal based on tecnicalities were recently addressed by panels of the Court of Appeals.  The Court rejected both "loophole" defenses. 

The first case was Doe v. Henke and Ann Arbor Orthopaedic, where the doctor's insurer argued that the alleged victim's previous bankruptcy filing had destroyed the victim's "standing" to pursue a malpractice claim.  While the bankruptcy trustee becomes the "owner" of a valid malpractice claim, in the Doe case, at the time of filing bankruptcy, the victim's potential malpractice claim had been rejected by the investigating attorney.  When a second attorney was willing to pursue the claim under an agreement with the bankruptcy trustee to turn the proceeds over to the bankrupt estate, the Court of Appeals ruled that the doctor's insurer derived no advantage from the bankruptcy filing and could not use it as an excuse for dismissing the claim.

In the second case, Hall v. Mercy Memorial Hospital, the insurer argued that an expert witnesses' change of opinion about the nature of the Defendant's malpractice, reached after his Affidavit of Merit was filed, was grounds for dismissal.  While the Court ruled that the expert's "new" theory of breach of the standard of care could not be pursued, it recognized that a question of fact regarding the existence of malpractice still remained. 

In Hall, a brain tumor had been detected in the patient's ER brain scan, but the abnormality was allegedly not communicated to the patient's treating doctors on a timely basis.  The tumor remained undetected and untreated for several years and ultimately proved fatal.  In essence, the Court held that a genuine issue remained with regard to contradictory evidence over whether the proper doctors were timely notified of the radiologist's conclusions after reviewing the subject scan.  The Plaintiff's expert was not allowed to testify, however, that the radiologist's opinions had to be communicated to the ER or family doctor verbally, as that claim was not included in the original Affidavit of Merit, even though the basis for the claim was available to the expert.  The Court stressed that the foundation for the expert's changed opinion did not arise out of discovery in the case:  it was present at the outset.