Was amputation result of failure to send test results to pt.?

CASE ON POINT: Sessoms v. Bay Regional Medical Center, No. 20516 (Mich. App. 08/22/2006) N.W.2d -MI

CASE FACTS: On July 6, 2002, Eric Sessoms, a then 25 year-old Ohio resident, suffered a broken leg after rolling down a hill while vacationing in Bay City, Michigan. He was admitted to Bay

Regional Medical Center (BMC), where he was diagnosed as having broken his left tibia and fibula. The following day, Dr. Robert Ference, a board certified orthopedic surgeon, performed surgery described as an" intramedullary rodding of the left tibia." Following surgery, Dr. Ference did not return to check the patient's wound, but on July 12, 2002, went on vacation, at which time Dr. Terrence Cherwin, who was also a board certified orthopedic surgeon, took over as the patient's attending physician. On July 13, 2002, at approximately 4:00 a.m., staff at the hospital unwrapped the patient's bandages for the first time. The gauze had healed into the wound and the incision was discolored, weeping, and had a foul odor. At approximately 10:00 a.m., that day, Dr. Cherwin checked on the patient and examined the wound. He ordered bacteriological cultures of the wound for immediate testing. However, the patient requested to be discharged before the test results were obtained. The patient was discharged on the condition that he would go directly to a hospital in Toledo, Ohio. Dr. Cherwin discharged the patient from BMC that day with a prescription for Keflex, an antibiotic. The patient was immediately admitted to St. Vincent's Hospital in Toledo upon his arrival there. The records that BMC gave the patient contained no information about his leg. Staff at St. Vincent's called BMC for additional information. However, additional records faxed to St. Vincent's did not contain any information relevant to the patient's post-surgical condition. On July 17, 2002, the patient was transferred to the Medical College of Ohio (MCO), where he was admitted for emergency surgery and treatment of the infection. On July 15, 2002, BMC received the final results of the bacterial culture that identified the infecting microbe as a strain of acromonas, a dangerous antibiotic-resistant bacterium. This information was not provided to anyone outside of BMC until August 5, 2002, when Dr. Ference wrote a letter to the patient advising him to follow up on his postoperative care. Over the next six months the patient was given intensive antibiotic treatment and underwent 13 surgeries on his leg to clean out the wound. The wound became so large that it would not close. Doctors at MCO attempted to graft the patient' latissimus dorsi muscle over the wound. The graft did not take. The patient's leg had to be amputated to stop the spread of the infection. After filing his notice of intent to file suit, the patient filed suit on June 28, 2004, alleging negligence and medical malpractice against Drs. Ference and Cherwin, and negligence, respondeat superior/agency liability, and Res Ipsa Loquitur (RIL) liability against BMC. Two affidavits of merit accompanied the complaint: one from Dr. Ross Hewitt, an internist specializing in infectious diseases and one from Dr. Eric Muloz, who was board certified in general surgery. Drs. Ference and Cherwin argued that the affidavits of merit filed failed to comply with the applicable law because both defendants were board certified in orthopedic surgery, and neither of the affiants was so certified. BMC argued that it was entitled to summary judgment because the patient failed to allege a claim of direct negligence against it, failed to name any specific agent that was negligent, and failed to allege a prima facie case of res ipsa loquitur. The trial court dismissed the malpractice claims against BMC with respect to the alleged malpractice of its nursing staff and because the patient failed to provide an affidavit of merit from a nurse. The trial court refused to dismiss the claims against BMC for ordinary negligence and RIL. The hospital appealed.

COURT'S OPINION: The Court of Appeals of Michigan held, inter alia, that the trial court abused its discretion in determining that the relevant standard or practice of care was that which applied to "postoperative" care. The court held that the trial court erred in determining that their patient's affidavits of merit met with the requirements of state law and in denying the defendants' motion for summary judgment with regard to the patient's claim against Drs. Ference and Cherwin. Further, the court held that the trial court also erred by refusing to dismiss the patient's negligence claims against BMC because those claims sounded in medical malpractice. Lastly, the court concluded that the trial court erred in refusing to dismiss the patient's claim based on RIL, since the court found RIL inapplicable. Accordingly, the court reversed the judgment of the lower court and remanded the case back to the trial court for entry of summary disposition for the defendants.