Jeffrey S. Cook Medical Malpractice Law Blog on Lawyers.com

Medical Malpractice Trial Lawyers Sheldon Erlich and Jeffrey Cook from Erlich, Rosen, Bartnick & Cook, P.C., received a $1,637,000 binding arbitration award in a medical malpractice claim involving both an OB/GYN as well as the nursing staff at a Detroit area hospital. As reported in both the Michigan Lawyers Weekly million dollar awards and The Michigan Trial Reporter this case was newsworthy not only for the amount of the award but the underlying multiple negligent actions of the defendants.

The case arose when the Plaintiff, a 44 year old healthy woman, was admitted to the hospital for routine removal of a benign fibroid tumor. During the surgery the OB/GYN surgeon found that the Plaintiff had a substantial amount of scar tissue which necessitated surgery to be performed around her bowel area. Rather than call in the available General Surgeon to perform this difficult part of the procedure the OB/GYN elected to try to perform the entire surgery himself. Unfortunately during the procedure he perforated, or punctured, Plaintiff’s bowel and sewed her up without realizing his mistake and without making any repairs to the perforation.

Plaintiff was discharged two days later with a leaking bowel and developed severe peritonitis which resulted in her being readmitted through the emergency department badly infected. Plaintiff was so sick she developed aspiration pneumonia which then led to cardiac arrest. Her cardiac arrest required several minutes for the hospital staff to reverse and she suffered permanent brain damage from anoxic encephalopathy, or lack of oxygen to her brain, while the hospital staff tried to revive her.

Plaintiff was comatose for approximately three weeks and was in the ICU. To add insult to injury, or in this case more injury to injury, this particular hospital had a nursing protocol in place that mandated all intubated patients in the ICU had to be physically restrained 24 hours a day. This was followed out even though Plaintiff was comatose and posed no threat to remove her breathing tube. As a result Plaintiff was tied down to her bed 24 hours a day completely at the mercy of the nursing staff to reposition her to avoid injuries. The standard of care requires repositioning every two hours to avoid nerve damage but the nurses failed to carry out this mandate.

When Plaintiff awoke from her coma after three weeks she was not only suffering from permanent mental deficits, her dominant right arm and hand had suffered a double crush ulnar nerve injury that left her hand basically useless. She underwent two surgeries on her right hand and fingers which were unsuccessful and now she is left with having to perform her tasks of daily living with her left hand only.

This case underwent a nine day Arbitration Trial with the Arbitrator awarding Plaintiff $933,000 in proven economic damages as well as the maximum high cap amount available under MCL 600.1483 of $704,000 for the Plaintiffs pain and suffering, disabilities, and emotional and cognitive damages.

Because of Michigan’s legislatively dictated maximum allowable recovery for the pain and suffering, disability, emotional damages, and general ruining of an injured person’s life under the Michigan Medical Malpractice Awards Cap the victim of the medical malpractice in this case received only partial justice. Due to the damages cap award found at MCL 600.1483, the negligent physician and hospital responsible for Plaintiff’s life long injuries were able to successfully hide behind the cap maximum and settle the claim for the legislatively mandated reduced amount of $704,000 for Plaintiff’s pain and suffering and disability damages, a number far below the actual damages to the Plaintiff but one arbitrarily dictated by the Michigan Legislature as a favor to the powerful insurance and physician lobbies in Lansing.

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