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Detroit Medical Malpractice Law Blog

Settling a medical malpractice case: work with experienced counsel to protect yourself

Readers may remember that not long after the death of comedian Joan Rivers, stories started popping up in the headlines that her family was accusing a New York clinic where she received treatment of negligence in caring for her. Rivers died about a week after an appointment at Yorkville Endoscopy in Manhattan.

During the procedure, Rivers had apparently had a spasm of her vocal chords which made it difficult for her to breath. This caused her body to not receive enough oxygen, and her brain subsequently shut down. In the family’s medical malpractice filing, the family claimed that the clinic failed to obtain Rivers’ consent to perform certain procedures, though the clinic denied the accusations.

Surgical retention and other errors can be costly: work with experienced legal counsel

Mistakes can happen in any medical or surgical procedure, and even the most skilled of physicians don’t perform perfectly with every patient. Sometimes mistakes have little to no long-term effect, and are nothing to worry about. In other cases, the long-term effects are significant. In some cases, the short-term consequences are significant but the problem can be fixed at a cost.

One common type of surgical error is to leave behind surgical items in a patient’s body. This type of error, sometimes called surgical retention, occurs in about one in every 5,500 surgeries and results in annual costs around $2.4 billion. Most often the item left behind is a sponge, but other instruments and items can be left behind as well.

Rules of evidence and physician statements of fault, P.2

In our last post, we began speaking a bit about the rules of evidence in medical malpractice cases. Our discussion is specifically about physician admissions of fault and their place in medical malpractice cases. As we’ve noted, Michigan law prevents medical malpractice plaintiffs from using a physician’s sympathetic communications against him or her in court.

The law does not prevent admissions of fault from being used against a physician in court, and we’ve already mentioned a couple ways such statements could be admitted at trial under the rules of evidence. Another possible opening for the admission of such statements is a hearsay exception pertaining to medical treatment and diagnosis statements. 

Rules of evidence and physician statements of fault

In our last post, we looked very briefly at a Michigan law which protects sympathetic physician communications from being used in court. Such statements are not necessarily critical for proving medical negligence, though, and the law does not protect physician admissions of fault or negligence from being used against them in medical malpractice litigation.

Evidentiary issues in medical malpractice cases are governed by established rules of evidence. These rules dictate what type of evidence may be admitted in court and what types of evidence may not be admitted. Physician admissions of fault could potentially be admitted under various evidentiary classifications. 

Physician admissions of guilt in medical malpractice litigation

Last time, we mentioned that Michigan is among a group of state that have passed measures to protect physicians from having their apologies used against them in medical malpractice litigation. In this post, we wanted to say a bit more about this law and how it can affect an injured patient’s ability to build a strong case for negligence.

The core protection of the law is that certain types of physician communications to a patient are not admissible in order to prove liability. Specifically, the following types of communication are, under the law, not considered admissions of liability: statements, writings, or actions made to a patient or his or her family which express sympathy, compassion, commiseration, or benevolence regarding the patient’s pain, suffer, or death. 

Med mal litigation not automatic, but patients shouldn’t sell themselves short

A recent CNN article took a look at what is becoming an increasingly important issue in the medical profession—the power of physician apologies when mistakes have been made. It has been known for some time that adding a touch of transparency and sincerity can go a long way in managing medical malpractice litigation, and 36 states currently have laws promoting physician apologies.

Michigan is among the states which have passed measures which prevent physician apologies from being used in court. Such measures are, of course, for the benefit of patients, but it has also been shown that hospitals can benefit through swifter resolution of cases. The key, according to proponents, is that patients are less likely to become litigious when they feel a physician is being honest with them.

Regulating the medical profession: malpractice litigation and physician discipline, P.2

In our previous post, we began looking at medical malpractice as one important form of regulation of the medical industry. Malpractice litigation provides regulation of the medical profession through—or with reference to—the court system, even when cases settle outside the adversarial process.

While it is important for injured patients to understand their options when it comes to medical malpractice litigation, it is also important to understand that medical malpractice is often a costly and time-consuming undertaking, and that the potential payoff may not be worth the investment. In cases where it is not, however, an injured patient can still help bring about some justice and obtain some closure by contributing to the physician discipline process.

Regulating the medical profession: malpractice litigation and physician discipline, P.1

The medical profession is a highly regulated one, and for good reasons. Licensed physicians bear a major responsibility to their patients, and regulation and oversight helps ensure—or, at least, is supposed to—that the individuals in the profession are deemed to be generally competent and trustworthy.

Two important ways medical professionals are regulated is through licensing and tort litigation. Medical malpractice litigation, of course, is a cause of action in which a patient claims that a licensed physician breached an established duty of care and thereby caused harm to the patient. In order to successfully pursue a medical malpractice claim, a patient must be able to present relevant and reliable evidence defining the specific standard of care, the breach of that standard of care, and which demonstrates a sufficient causal link between that breach and the harm done to the patient.

Looking at the basics of the medical malpractice statute of limitations

Pursuing a medical malpractice claim is generally a large undertaking involving a lot of leg work and a lot of coordination. Not only are there evidentiary and legal issues that need to be fully explored and considered, there are procedural and technical issues that have to be dealt with and coordinated as well.

One important element of this coordination is to ensure that a medical malpractice claim is filed before the statute of limitations runs. As we pointed out in our last post, there are some disagreements on exactly how state law should be applied in certain circumstances, but the basics are laid out fairly clearly. 

Family able to pursue malpractice case after appeal on statute of limitations issue

Earlier this month, a Michigan Appeals Court ruled that the family of a deceased man who had a surgical sponge left inside of his body, near his heart, for eight years, is able to sue the doctor and the hospital where the surgery occurred.

The man apparently had surgery at Covenant HealthCare in Saginaw in 2003, and sued the hospital in 2012, after the sponge was found. The suit was dismissed on the grounds that the statute of limitations had already run, though the attorney representing his family—he died in 2015—argued that the statute of limitations did not apply in the case.