Important Appellate Decisions

Michigan Medical Malpractice and and Insurance Defense Attorneys

At the Western Michigan law firm of Aardema Whitelaw, PLLC, our insurance defense attorneys won appeals on many medical malpractice and negligence cases for insurance companies all over Michigan.

We have had numerous cases lead to significant published and unpublished opinions. Here are links to some of our most important appellate decisions:

• Burton v. Reed City Hospital Corp., et al.
  The Supreme Court ruled that a complaint alleging medical malpractice that is filed before the expiration of the notice of intent period provided by MCL 600.2912b does not toll the statute of limitations.
• Ensink v. Mecosta County General Hospital, et al.
  The Court of Appeals ruled the trial court erred in concluding that plaintiff sufficiently demonstrated that it was more probable than not that the failure to administer t-PA caused plaintiff the loss of a greater than 50% opportunity to achieve a better result pursuant to MCL 600.2912a(2) and Fulton.  A poll of the Court of Appeals judges on whether to convene a conflict panel regarding the Fulton decision was evenly divided and, therefore, it was not convened.
• Kuper v. Metropolitan Hospital, et al.
  The trial court and Court of Appeals dismissed plaintiff's case because plaintiff failed to establish causation pursuant to MCL 600.2912a and Fulton.  Plaintiff must prove that defendant's alleged negligence caused the probability of survival to decrease by fifty or more percentage points.  Plaintiff argued, on the benefit of hindsight, that the Fulton rule was satisfied because the fact that the decedent died means that his survival probability was zero.  The court concluded that this contradicted the testimony of plaintiff's own expert who established, at worse, decedent's probability of survival dropped from 90% to 58%.
• Ousley v. McLaren, et al.
  In this wrongful death/medical malpractice case, the Court of Appeals indicated that MCL 600.5852 is a savings provision and that the notice of intent tolling provision of MCL 600.5856(d) does not apply to it. The court further concluded that the Waltz v Wyse opinion is to be applied retroactively because it did not overrule clear and uncontradicted case law.
• Young v. Spectrum Health
  This decision applied the rule the Supreme Court promulgated in the Roberts case by indicating that plaintiff is required to comply with MCL 600.2912b(4)(e) and MCL 600.2912d(1)(d) by describing the manner in which the alleged breach of the standard of care was the proximate cause of the injury claimed in the notice of intent and affidavit of merit.  The plaintiff can not simply provide conclusionary statements indicating that plaintiff suffered damages as a result of the alleged breach of the standard of care.  Plaintiff must describe, with that degree of specificity which will put the potential defendants on notice, how the alleged breach caused the injury or damages.
• Ward v. Rooney-Gandy
  Plaintiff filed the wrong affidavit of merit with his complaint.  Because a grossly non-conforming affidavit does not toll the period of limitations, plaintiff's claim was time barred.  The Court of Appeals invoked the doctrine of equitable tolling to save the case, but the Supreme Court reversed the Court of Appeals decision and stated that equitable tolling does not apply because plaintiff's mistake was the product of negligent failure to preserve her rights.
• Westfall v. McCririe, et al.
  Plaintiffs filed their complaint against defendants 156 days after providing defendants with the notice of intent, arguing that the shortened notice period contained in MCL 600.2912b(8) applied to this case.  However, plaintiffs did receive a 154-day written response within the appropriate time period from defendants but argued that the response failed to satisfy the detailed requirements of MCL 600.2912b(7).  The court ruled that on its face the 154 day response did not appear to be grossly non-conforming and that the language of the statute does not permit a plaintiff to unilaterally determine whether a defendant's response satisfies the detailed requirements of MCL 600.2912b(7).
• Gardner v. Flood
• Gray v. Luebke, et al