Michigan high court again split 4-3 on malpractice

By David N. Goodman

Associated Press Writer

DETROIT (AP) -- For the second time in as many days, a divided Michigan Supreme Court took action last Thursday favoring people with medical malpractice claims.

The three-member Republican minority sharply criticized the decision to reverse the state Court of Appeals and let a claim proceed against a physician's assistant accused of misdiagnosing a boy's bone infection.

In a suit, Sara Griesbach said she took her son Patrick, then 13, to Walled Lake Medical Center for pain in his right leg on July 2, 2002. Physician's assistant Robert R. Ross examined the teen, ordered tests and prescribed Tylenol, the suit said.

The mother brought her son back the next day and Ross prescribed Tylenol with codeine but didn't diagnose a bone infection, the suit said. It said Patrick Griesbach later underwent emergency surgery on his hip and sustained irreversible cartilage damage.

The family filed a complaint against the clinic and Dr. Frank L. Fenton, who was not present at the examinations. The family later dropped the claim against Fenton and sued Ross, winning damages in a jury trial.

Ross appealed, saying the suit was filed after the two-year statute of limitations. The state Court of Appeals agreed and overturned the verdict.

In its decision released last Thursday, the state Supreme Court reversed the appeals court decision and ordered an Oakland County judge to consider the case in light of two 2009 state Supreme Court decisions extending the time period for filing suit in certain circumstances.

"The record reveals disputed facts regarding whether the notice of intent provided sufficient and timely notice" to Ross, Justice Diane Hathaway wrote.

Republican Elizabeth Weaver voted with Hathaway and the court's other two Democrats.

Dissenting Justice Stephen Markman said the court was taking on powers that belong to the Legislature. The court majority's attitude "ought to be deeply troubling to citizens of this state concerned about representative government," he wrote.

Justice Maura Corrigan wrote in her dissent that it is "precisely the new majority's goal" to let people with malpractice claims ignore deadlines set down in law.

Last Wednesday, the same 4-3 majority issued an order creating new deadlines for health care providers being sued for malpractice. The order means those accused of malpractice must challenge a notice of intent to sue within 63 days.

A number of damage cases have been decided by similar votes since Hathaway defeated Republican Clifford Taylor in the November 2008 election.

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On the Net:

Supreme Court decision in Griesbach v Ross: http://j.mp/92yqGL

New malpractice rule: http://j.mp/aVCSyA

Published: Mon, Feb 22, 2010