Patient Needs Jaw Surgery, Doctors Do Brain Surgery Instead and Kills Patient: Family Gets NOTHING Due to Medical Malpractice Cap

Cases, Medical Malpractice Mistakes, Surgery, Wrongful Death

An awful miscarriage of justice has occurred in Michigan regarding the State’s medical malpractice cap and a massive lawyer mistake.  An elderly patient was in need of jaw surgery and sent into a surgical center for this procedure.  However, her name got mixed up with another patient and they performed a craniotomy instead which includes removing part of the skull!  Because of thus unnecessary brain surgery, the patient DIED.

Since Michigan has a medical malpractice cap, the lawyer sued it as a regular negligence case which has no damages cap (unlimited) because it was a “wrong patient” surgery, not necessary due to a medical error in skill.  Any potential medical malpractice claim was dismissed in the lower court, as the lawyer and family proceeded on ordinary negligence.

After hearing the mistake, which the surgical team and hospital ADMITTED it made the blunder which killed the patient, the jury awarded $20 million!  A great result!

But for only a little bit.

The surgical team and hospital, apparently thinking that they can just admit to killed a patient through horrible malpractice and get away with it, appealed the result.  The defendants argued that it was actually medical malpractice, NOT ordinary negligence, and the victim’s family cannot proceed under negligence which has no damages cap.

The appeals court AGREED with the defendants, arguing that it should have been a medical malpractice case with the damages cap and NOT a normal negligence case!  Since the medical malpractice claim had been dismissed, and the appeals court finding that the negligence case should be dismissed, the $20 million was vacated and the case over!  The victim gets NOTHING.

How on earth could this happen?!

In New York, this is why the Legislature allows alternative pleading—meaning you can attempt to prove two different causes of action that may go against each other, but at trial prove one or allow the jury to accept one or the other.  In a case like this both negligence and medical malpractice (a subset of negligence) should have been alleged and argued all the way through.

The lawyer gambled to avoid the medical malpractice cap on damages by only doing a negligence case, which is very risky and clearly failed.  It is likely that a legal malpractice claim is appropriate.

But it is also unjust that the courts in Michigan would let this stand!  In New York, judgment, decisions, orders, or any combination (commonly it is a decision and order, or a decision/order/judgment), can be vacated in the interests of justice as may be deemed just and fair.  This is pursuant to common law authority interpreting the Legislature’s CPLR Rule 5015.

The fact that a family who had their loved one KILLED by medical malpractice is completely unjust in this situation, and all because of the medical malpractice cap and how a lawyer wanted to avoid it.

But what do you think?  I would love to hear from you!  Leave a comment or I also welcome your phone call on my toll-free cell at 1-866-889-6882 or you can drop me an e-mail at  You are always welcome to request my FREE book, The Seven Deadly Mistakes of Malpractice Victims, at the home page of my website at