This month, a Michigan Supreme Court threw out a $20 million verdict awarded to the Estate of an 81 year old woman who died after a surgeon operated on her brain by mistake and without consent. The family of the victim suffered two tragedies - death, and a zero for a recovery all caused by the carelessness of a hospital and an attorney. The patient was supposed to be treated for a dislocated jaw but due to a screw up involving the x-rays of another patient who needed immediate brain surgery, the patient who came for surgery on her jaw wound up having five holes drilled into her head with a portion of her skull removed. The patient died due to complications from the mistaken brain surgery.The hospital conceded it was negligent but denied any malpractice. Should be an easy case to win?

The patient's Estate brought suit under a negligence theory, which has no cap on the recovery as opposed to a malpractice theory which does - in Michigan. Early on the negligence claim was dismissed by a Judge who advised that the case could only be pursued on a malpractice theory. Rather than appeal the erroneous decision, the Estate's attorney's stipulated to the dismissal of the negligence claim in exchange for the right to file an amended complaint under a malpractice theory. When the case came to trial the attorney's for the Estate persuaded the trial Court to (wrongly) allow them to amend the complaint a second time to reassert the negligence theory, despite their having stipulated to its dismissal. The jury found in favor of the Estate on the negligence theory only and awarded $20 million. When the verdict was challenged on appeal by the hospital, the appellate Courts of Michigan agreed that as a result of legal errors by the Estate's attorneys and the trial Court--the Estate gets nothing!

The Chief Justice of the Michigan Supreme Court summarized the tragedy: "This case involves a remarkable confluence of what appears to be both medical and legal dereliction resulting in an extraordinary miscarriage of justice." The only possible remedy for the family to pursue would be a legal malpractice suit based on the attorney's stipulation to the dismissal of the negligence theory and foregoing an appeal. However, you would still have to prove that the appeal would have been successful. Nayyar v Oakwood Hospital and Medical Center