Medical malpractice claim dismissed after late recognition of doctor at fault

In an all-to-common, but still distressing scenario, this week yet another medical malpractice claim was dismissed, not on the merits, but rather through a combination of lack of diligence and defense chicanery.  Hannah Bugaiski had sued Steven Smolinski, MD,  Nancy Labrador, MD, Michael Paul, MD,  and their respective practices, after Smolinski accidentally perforated her rectum during surgery.  She claimed long-term injury and damages in part because her resulting abdominal pain in the Port Huron E.R. was misdiagnosed by Labrador. Labrador's name did not appear anywhere in the medical chart, but the Court rejected the victim's argument that Labrador's identity was concealed, because the victim knew that she was treated by a woman and there was no proof that the hospital purposefully concealed Labrador's identity.

Unfortunately, her attorneys didn't fully recognize Labrador's involvement and didn't join the "moonlighting" resident in the original lawsuit.  Later, Smolinski's attorneys identified her as a "third-party at fault" in formal pleadings.  Smolinski's lawyers falsely claimed they weren't aware of Labrador's participation in Bugaiski's care, in order to avoid the 90-day deadline on joining an at-fault third-party.

The Court granted Smolinski's lawyers the identification of Labrador as a third-party and the victim's lawyers joined her in the lawsuit.  Dr. Paul and his practice were then dismissed.  As soon as she was joined, Labrador's lawyers argued that the statute of limitations as to her was not properly extended, because Smolinski's lawyers falsely claimed they were not aware of her involvement during the first 90 days after suit was filed.  On that basis, the trial court subsequently ruled that the third-party fault pleading filed by Dr. Smolinski was invalid, and therefore it was too late to join Labrador in the case.  Furthermore, since Labrador must now be dismissed for late filing, the various people who might be responsible for her mistakes must also be dismissed--because her dismissal was deemed to be a "decision on the merits."

So, the victim's lawyers initially don't recognize there is fault by a hospital resident who is moonlighting.  They join the guy who accidentally perforated her rectum and the hospital and surgical practices.  The surgical practices falsely represent that they have only recently identified the "at-fault" person, who is then joined in the lawsuit in place of the surgeon.  The Court decides it made a mistake based on a false representation by the surgeon's lawyers, and both the at-fault doctor and her practice are dismissed from the lawsuit--without any true analysis of who provided poor care. 

If Ms. Bugaiski is now somewhat cynical about both medicine and law in Michigan, it would be hard to blame her.