Malpractice victim's family allowed to re-file death claim

Beth Hoffman sued Dr. Peter Barrett after her relative, Edgar Brown, died from injuries suffered in a fall from a ladder.  Brown had been seen by Barrett in the Emergency Room at Battle Creek Health Systems, where Barrett had diagnosed fractured ribs and a pneumothorax.  Barrett inserted a chest tube to re-inflate Brown's lung and then sent him home 11 days later.  Brown died the day after discharge of complications including an ileus, pulmonary atelectasis, empyema and pleuritis.  The family alleged these conditions should have been diagnosed and treated during the hospitalization.

The trial court concluded that the family's Notice of Intent to sue was adequate, but that the Affidavit accompanying the malpractice complaint was defective.  The Defendant claimed that the Affidavit should have been signed by a cardio-thoracic surgeon, rather than a general surgeon, and therefore that the Affidavit and Complaint were not adequate to prevent the statute of limitations from running.

Because the complaint apparently related to abdominal as well as chest treatment, the Appeals Court concluded that the Affidavit of Merit was adequate to initiate the lawsuit and to toll the statute of limitations--even if the action must be re-filed to correct other flaws.  As a result, the statute of limitations did not expire and Brown's family will be allowed to amend its claims to meet the specific requirements of the malpractice statute.  So, this nine year old 2001 claim may get a fair hearing sometime in the next decade.