$20 million Med-Mal judgment tossed for Legal Malpractice, Judge recommends ‘further action’

Today’s story involves both the unfortunate death of a person and the mistaken loss of their $20 million judgment.

There’s medical malpractice, there’s legal malpractice, there’s even the rare “judgment notwithstanding the verdict” where a judge overturns a jury’s rendered verdict, something that does not happen every day.

And, I believe the judge who offered his separate concurring opinion did so to try and explain how this could happen to an earnest plaintiff with a good case.

The plaintiff is the husband of a deceased woman who went to the hospital for treatment of a dislocated jaw but ended up with brain surgery instead.

The hospital had mistakenly swapped her x-rays, somehow putting her in queue for the wrong operation. The brain surgery was fatal, hence the estate, her husband, was suing.

Why sue? It seems like an open and shut case. Why didn’t the hospital simply pay some amount of money instead of forcing the plaintiff to court?

Well, sometimes, it’s the defendant. Sometimes, a hospital or its insurance company might have a policy requiring court cases to be filed or defended in order to minimize their costs or risks. If a plaintiff screws up, the defendant might save thousands to millions of dollars.

And, sometimes, the plaintiff wants more money than the defendant is offering in settlement. And sometimes, it’s a combination of the two.

In many places, there are caps or maximums on the amount of money damages available for medical malpractice claims. In order to get around those maximums, some clever attorneys will use a different law, such as the law of negligence, as an alternative.

With that little bit of case history in mind, let’s turn now to the two-page concurring opinion of Chief Justice Markman of the Michigan Supreme Court.

“On order of the Court, Plaintiff’s motion for reconsideration of this Court’s order is considered, and it is DENIED, because it does not appear that the order was entered erroneously.

“This case involves a remarkable confluence of what appears to be both medical and legal dereliction, resulting in an extraordinary miscarriage of justice.

“Concerning the legal aspect, plaintiff’s counsel, instead of pleading ordinary negligence and medical malpractice in the alternative as counselled by caselaw, pleaded ordinary negligence (in which damages are uncapped) instead of medical malpractice (in which damages are capped).

“Defendant moved for summary judgment at trial, contending that plaintiff’s claims sounded exclusively in medical malpractice, not ordinary negligence, and that plaintiff had failed to comply with the statutory notice and pleading requirements applicable to medical malpractice claims.

“The trial court granted this motion and the parties agreed to an order that dismissed plaintiff’s ordinary negligence claim with prejudice, but stated that plaintiff was not precluded from bringing a medical malpractice claim.” “with prejudice” means that those claims are extinguished and cannot be filed or adjudicated again.

“Plaintiff did not appeal the trial court’s order but instead refiled the lawsuit as a medical malpractice action, and defendant conceded negligence so that the case proceeded to a jury only on the issues of causation and damages.

“At this second trial, plaintiff’s counsel sought again to raise the (uncapped) ordinary negligence claim, and the trial court [this time] allowed plaintiff to amend the complaint to assert ordinary negligence.

“During the course of the trial, plaintiff’s attorneys repeatedly asserted that the claim being litigated was one for ordinary negligence, and they convinced the second trial court to enter a judgment that was unmoored from the statutory cap on damages applicable to a medical malpractice action.

“The jury eventually awarded damages of $20 million in a judgment for ordinary negligence. Defendant then moved for a judgment notwithstanding the verdict, arguing that the verdict was precluded by principles of collateral estoppel because it was predicated on ordinary negligence, a claim that had been dismissed with prejudice by the first trial court.”

Collateral estoppel is what we call it when an issue or claim is barred or precluded, here by the dismissal with prejudice of the negligence claim in the first case.

“This motion [for judgment notwithstanding the verdict] was denied by the second trial court, and defendant appealed. On appeal, the Court of Appeals granted defendant’s motion, concluding that the second trial court’s order allowing the amendment of the complaint to include a claim of ordinary negligence constituted an impermissible collateral attack on the first trial court’s order dismissing the ordinary negligence claim.

“The Court of Appeals also held that plaintiff was precluded by collateral estoppel from raising the ordinary negligence claim in the second lawsuit because it had been fully litigated and disposed of by the unappealed final order in the first lawsuit.

“As a result, the Court of Appeals held that only the theory of medical malpractice remained available to plaintiff in the second lawsuit. The Court said that “where plaintiff unequivocally proceeded in this action under an ordinary negligence theory and the jury awarded damages under that theory, defendant was entitled to judgment notwithstanding the verdict[.]

“To summarize, plaintiff now has no negligence claim and no medical malpractice claim, all despite the fact that (a) defendant-hospital openly admitted negligence, (b) a jury determined that this negligence constituted the proximate cause of plaintiff’s death, and (c) a jury awarded plaintiff a $20 million verdict.

“I concur in this Court’s denial of plaintiff’s motion for reconsideration because the Court of Appeals correctly held that plaintiff’s prior agreement to the dismissal of his negligence claim with prejudice precluded any recovery on that claim at a subsequent trial under the collateral attack rule and collateral estoppel.

“Yet the decedent’s husband’s plaintive inquiry nonetheless resonates loudly: “How is [this] possible in a just and fair world . . . ?” There is no satisfactory answer, in my judgment, only that further review of this matter might well be pursued in an appropriate action.”

At first, I was like “Damn, the judge is recomending that the plaintiff sue his lawyer.”

And then, I was like, “Damn, the judge is recommending that the plaintiff sue his lawyer!”

And that seems to be what’s really happening here. The judge feels bad for this poor widower and the loss of his case and he’s reaching out to the man through the concurring opinion to tell him that he’s got to sue his own attorney if he wants a chance at recovering any money.

The amount of money is probably still only the amount possible under Michigan’s medical malpractice caps, which appears to be approximately $440,000.

The hospital, it seems, is completely off the hook.

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Coming up soon are videos on the zombiegoboom and apocalypse case as well as a review of the PhantomLord twitch ban lawsuit, and many more.

Let me know what you think of this story in the comments below. I am your favorite copyright attorney, Leonard French, and I’ll see you in the next video.

Chief Justice Markman Concurring Opinion