FBMJ Client Prevails in Dismissal of Medical Malpractice Action
The Michigan Court of Appeals (COA) recently sided with arguments made by FBMJ attorneys, Anthony Pignotti and Randall Juip, resulting in a victory for their client. In an unpublished opinion issued by a panel of the Court of Appeals on August 13, 2019, the Court unanimously reversed the trial court’s partial denial of summary disposition and remanded the case to the trial court for entry of an order granting summary disposition in full in favor of their client, a general surgeon. While the Plaintiff had an opportunity to appeal the Court of Appeals’ decision to the Michigan Supreme Court, the period in which to do so has expired. The final paperwork dismissing the case in its entirety has been submitted to the trial court for entry.
The case involved a patient who presented to the emergency department with complaints of nausea, vomiting, diarrhea, difficulty urinating, and a distended abdomen over the prior 3-4 days. Tests were performed in the emergency department, and an evaluation indicated that the patient suffered from systemic inflammatory response syndrome (SIRS), small bowel obstruction, and a ruptured appendix.
The patient claimed that the general surgeon was consulted regarding his condition, but that he did not conduct a personal review of the patient’s symptoms. The patient also claimed that the general surgeon did not meet with him until the next morning. The patient ultimately claimed that surgery was not performed until 18 hours after his admission to the hospital. The patient claimed that the general surgeon committed medical malpractice by failing to perform surgery within six to eight hours of final diagnosis, thereby causing Plaintiff to develop SIRS, a need for permanent dialysis, and a need for prolonged dialysis.
The patient retained only two experts, both of which were general surgeons. While the patient’s two general surgery experts both offered opinions regarding standard of care, neither expert could definitively link the patient’s alleged injuries to his kidneys and his resulting need for permanent dialysis to the alleged breaches of the standard of care. Furthermore, when questioned, both experts opined that they would defer to a nephrologist with respect to matters pertaining to the patient’s renal function and need for dialysis. The patient did not retain a nephrology expert, but FBMJ did. The FBMJ nephrology expert opined that the patient was already in septic shock and suffered permanent and irreversible kidney damage prior to presenting to the emergency department. Accordingly, there was nothing that could have been done to prevent those injuries.
Based upon the deposition testimony of the experts, FBMJ moved for summary disposition arguing that Plaintiff’s medical malpractice action failed as a matter of law because the patient did not put forth expert testimony to support his position that the general surgeon caused his alleged injuries and damages. The trial court granted summary disposition in part with respect to the issues of whether the general surgeon caused the patient to develop SIRS and the need for permanent dialysis, but denied summary disposition in party with respect to the patient’s need for prolonged dialysis.
Application for leave to appeal the partial denial of summary disposition was promptly filed, and the Court of Appeals accepted that application.
Court of Appeals’ Decision
On August 13, 2019, a panel of the Michigan Court of Appeals issued a unanimous unpublished opinion reversing the trial court’s denial of partial summary disposition and remanding the matter to the trial court for entry of an order granting full summary disposition and dismissing the case in its entirety.
The Court of Appeals found that the patient failed to demonstrate a causal link between the general surgeon’s actions and the patient’s need for prolonged dialysis. While the patient’s two general surgery experts were of the opinion that the alleged delay in treatment between the patient’s admission to the emergency department and the performance of surgery caused damage to the patient, the Court of Appeals found that when questioned about the degree of kidney injury suffered by the patient and whether it was reversible, both general surgery experts indicated that they would defer to a nephrologist with respect to those issues. The sole nephrology expert, who was retained by FBMJ on behalf of the general surgeon, opined that the patient’s prior history of kidney disease coupled with the symptoms that the patient presented with at the emergency department demonstrated that there were no other measures that could be taken to reverse the damage that had already been done to the patient’s kidneys. Accordingly, the Court of Appeals found that the patient failed to meet his burden of demonstrating that he required prolonged dialysis as a result of the surgeon’s alleged breach of the standard of care and that the trial court erred in denying summary disposition with respect to that claim.