Appeals Court: Death was presented as case of negligence when it should have been argued as medical malpractice
By Ed White
Associated Press
BELLEVILLE, Mich. (AP) — An 81-year-old woman with a sore jaw died just weeks after a breathtaking mistake: Doctors at a Detroit-area hospital performed brain surgery on her because of a records mix-up.
A jury awarded $20 million to Bimla Nayyar’s estate, but family members won’t see a dime. The verdict won by Geoffrey Fieger’s law firm was thrown out on very technical grounds that had nothing to do with the incredible blunder in 2012 at Oakwood Hospital in Dearborn.
For a second time, the Michigan Supreme Court has declined to intervene. Chief Justice Stephen Markman last week agreed that a crucial appeals court decision should stand, but he still called the case a “medical and legal dereliction, resulting in an extraordinary miscarriage of justice.”
Nayyar was admitted to Oakwood for a procedure to realign her dislocated jaw. But instead of fixing her jaw, doctors performed a craniotomy, which involved the temporary removal of a bone flap in her brain. Hospital staff later discovered that the Belleville woman didn’t need brain surgery — her name was on the wrong medical record.
Nayyar died two months later. A jury in 2015 said the surgery was the proximate cause of her death and awarded her estate $20 million. But the huge verdict didn’t stick.
The Michigan Court of Appeals overturned it, saying Nayyar’s death was presented as a case of negligence when it should have been argued as medical malpractice with a cap on any financial award. The court noted that the first of two judges overseeing the litigation had ruled out a negligence claim.
Nayyar’s lawyers pleaded with the state Supreme Court to reverse the decision. They said the hospital had already admitted that the surgery was a devastating error.
“This court would have to suspend all concepts of fair play, justice and truth to ignore the gross injustice that has occurred here,” Fieger and co-counsel said in a filing. “For God’s sake, do something about it.”
Oakwood’s lawyers, however, said Fieger made errors with an “all or nothing ... bad bet” on a negligence claim.
The Supreme Court twice declined to take the case, the last order coming on Feb. 7. The vote by six justices was unanimous. Justice Kurtis Wilder didn’t participate.
Nayyar’s family “now has no negligence claim and no medical malpractice claim,” Markman, the chief justice, wrote, “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.”
Fieger, perhaps Michigan’s best-known personal injury lawyer, didn’t return a message seeking comment from The Associated Press.
Nelson Miller, associate dean at WMU-Cooley Law School, said Nayyar’s estate probably could have won at least $800,000 under a capped medical malpractice claim. But the case now is over.
Fieger is a “remarkable advocate. I’m not surprised he was the one who won such a large verdict,” said Miller, a lawyer who has been on both sides of personal injury cases. “But the risks should have been readily apparent.”
