Legal Question in Medical Malpractice in Michigan
Right Eye Removed - Wrong Diagnosis-Informed Consent
March 14th, 2005 Husband had right eye removed by Opthmalmolgist for Ocular Melanoma. Rare Disease.
Nov. 2005 we were told it was not Ocular Melanoma but a Nevus. There is no treatment for Nevus.
Settled Case with Optometrist in 2006 for not dilating my husbands eyes and not finding tumor sooner. Long Story.
Attorney not interested in pursuing the Opth that removed my husbands eye as this is a Set Off case. Hired an attorney to write letter of intent. Intend to file complaint pro se as to Informed Consent. Statue of limitations August 9th 2007. I know, alot of attorneys would say a case based on informed consent is no case. Had my husband been informed that there was a possibility that this was not OM he would have decided on another course of treatment.
Question.
Since this is based on informed consent and is obvious to the lay person I understand that I do not need an expert witness to testify. How do I file a claim without a letter of merit by an expert witness in this situation?
Washinaw County.
1 Answer from Attorneys
Re: Right Eye Removed - Wrong Diagnosis-Informed Consent
If the claim is medical malpractice then you will need a medical expert. If the claim is ordinary negligence then the jury can readily determine the reasonableness of conduct without expert guidance. If the inadequacy is obvious to a lay person, then no expert testimony is required. Paul v Lee, 455 Mich 204 (1997). The answer boils down to whether medical judgment was involved and there is a strong argument that informed consent involves medical judgment.
However, you cannot file a claim without an Affidavit of Merit by a health professional reasonably believed to meet the requirements for an expert witness under MCL 600.2169. EVEN IF THE NATURE OF THE NEGLIGENCE WOULD BE WITHIN THE JURY'S UNDERSTANDING. Dube v St. John Hosp. & Med. Center (Unpublished, May 16, 2006).
If your affidavit does not conform to the statute, it will not commence the action or toll the statute of limitations. You need to find an expert to sign an Affidavit of Merit. Later in the case, he may not be needed, but he is needed to properly commence the action.
(Please do not rely on this communication which does not create an attorney-client relationship and which is intended merely as a discussion of legal principles and is not to be relied upon.)
If you have further questions or concerns, or desire more specific information, please contact me at www.lawrefs.com.
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