Patient's Ectopic Pregnancy Misdiagnosed - Tube Bursts.
ISSUE: In many states before a medical malpractice suit can be brought against a physician, a notice of intent to bring suit must be given. In this extraordinary Michigan case, a patient allegedly failed to give a valid notice. However, the physician involved failed to object to the notice. Was the physician later precluded from objecting to the patient's claim at trial? This was just one of the issues with which the Michigan courts were confronted in this case, involving the failure to diagnose an ectopic pregnancy.
CASE FACTS: Lisa Roberts, pregnant with her first child [sic], presented herself to Barb Davis, PAC, Dr. Michael Atkins, and Dr. Gail DesNoyers at Obstetrics & Gynecology of Big Rapids. A diagnosis of spontaneous abortion was made and a D & C was performed at Mecosta County General Hospital. The patient was sent home at that time, despite Dr. DesNoyers' knowledge of the patient's history of a prior pregnancy [sic]. Over the course of the next few days, the patient continued to experience pain and cramping and on October 7, 1994, was seen at Mecosta County General hospital by Dr. Atkins. The patient was told that the pain she was experiencing was from cramps from a D & C. The patient was sent home. The patient returned to the hospital on October 8, 1994, at which time, it was discovered that she had not had a spontaneous abortion but had an ectopic pregnancy in her left tube which had burst. Emergency surgery was performed and the patient's left tube was removed. The patient had her right tube removed approximately 10 years earlier. The patient is now unable to bear children. As required by Michigan law, the patient filed notice of intent to bring suit against the physicians. None of the physicians or others named in the notice filed any objection to the notice. After waiting the requisite number of days following the filing of her notice of intent, the patient brought suit against the physicians and their professional group. Defendants Atkins, Mecosta, and General Hospital, which was also named as a defendant, moved for summary judgement based on the plaintiffs failure to file a "sufficient notice of intent to file a medical malpractice claim under Michigan law." The trial court ruled that the patient's notice of intent "failed to contain the minimum information required to comply with the law." Specifically, the trial court found that the applicable standard of care was only generally stated and failed to directly address the standard of care specifically applicable to Dr. Atkins as well as the hospital. The patient appealed.
COURT'S OPINION: The Court of Appeals of Michigan held that the defendants waived any alleged deficiencies in the plaintiffs notice of intent by failing to raise such issues before suit was brought. Accordingly, the court reversed the decision of the lower court and remanded the case for trial. The court held, inter alia, that the purpose of the statute requiting notice of intent to sue is to promote settlement and not to give defendants a procedural loophole to avoid claims regardless of merit.
LEGAL COMMENTARY: A defective notice would merely prompt a defendant to respond with an objection. If the plaintiff failed to redraft the notice, the plaintiff would face the possibility of a summary disposition. The court noted that it was merely holding that a claim that is covered by a notice of intent "cannot be dismissed on the basis of an argument that a notice was deficient where an objection was not raised by the defendant before the filing of the complaint." If said procedures are followed, there would be no motive for a plaintiff to file an unduly vague notice of intent, nor, more to the point of this case, would there be a motive for a defendant to reserve his objection to the notice until after a complaint is filed. It is unfortunate that this case, which so adversely impacted the patient's ability to have children went up to the Court of Appeals on a technicality. Laymen often wonder why the law often fails to get right to the heart of a matter. Was one or more of the defendants guilty of medical malpractice in failing to diagnose the patient's ectopic pregnancy? Was that malpractice the direct and proximate cause of the burst of the tube? Was the patient left unable to bear children for the rest of her life? How much should the plaintiff be awarded should there be a finding that one or more of the defendants was guilty of malpractice and that the malpractice was the direct and proximate cause of the injury resulting in the patient's inability to bear children?
Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for nearly 40 years, he concentrates in health care law with the Providence, R.I., firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's Reagan Reports, his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers and Marquis Who's Who in American Law.