Negligence Law Section
Issue No. 2 January 2011
Message from the Chair
David E. Christensen
David E. Christensen

What Is Coming In 2011?

David E. Christensen
Gursten, Koltonow, Gursten, Christensen & Raitt PC

Is everything old new again? After November's Republican electoral sweep of the legislature, the Governor's office and the Supreme Court races, negligence lawyers are asking this age-old question. After a brief two-year hiatus from a decade of a Republican control of the Supreme Court, a new GOP majority is in control. Justice Young was re-elected and the newest Justice, Mary Beth Kelly will join the Court in 2011. This column represents my very simple opinion. The Negligence Section Council consists of equal numbers of defense and plaintiff attorneys. The Council only speaks after deliberating and voting, and if there is not overwhelming agreement on an issue, we do not speak. The Negligence Section positions are expressed mainly in amicus briefs and testimony before the legislature on pending bills. In my many years serving on the Council, nearly every vote has been unanimous, or nearly unanimous. But the following is simply my humble opinion on the potential for this new Supreme Court.

Read More

Doctors Drunk with Fatigue

Norman D. Tucker
Sommers Schwartz PC

Norman D. Tucker
Norman D. Tucker

In 1999, the Institute of Medicine (IOM) estimated that as many as 98,000 deaths per year are due to medical errors. The frequently used analogy; this is the equivalent of a fully loaded Boeing 747 crashing every working day and killing all on board. Even this analogy failed to incite the public's ire; mistakes happen, we are all human. But what if they knew that too often the 747 pilots were intoxicated?

We have known for years that fatigue impairs mental function. The national disasters attributable to fatigue are well known. Those often cited include: the Chernobyl Nuclear Plant Explosion, the Three-Mile Island nuclear accident, and the Exxon Valdez oil spill, just to name a few.

To guard against the well recognized hazards of fatigue, many occupations requiring high levels of mental alertness have severely restricted weekly and per shift work hours. Medicine, however, literally and figuratively, is still at the bottom of this list.

Read More

Amy Tripp Advertisement as of 01/2011
Amy Tripp

Author of the Special Needs Chapter of ICLE's Advising the Older Client or Client with a Disability, Fourth Edition and selected as a Rising Star in both 2008 and 2009 by Super Lawyers Magazine.

Case Update
Documents Shared With Potential Third-Party Litigation-Financing Companies Not Protected By Attorney-Client Privilege

Tracey M. Bobo
Collins, Einhorn, Farrell & Ulanoff PC

Tracey M. Bobo
Tracey M. Bobo

Third-party litigation-financing companies are the "new, new thing" in the U.S. legal community. The concept, which first established itself in Australia in the 1990s, is relatively simple. Litigation is expensive. A plaintiff cannot afford to bring what looks to be a meritorious claim, so a third party provides funding for the suit (i.e., attorney fees, court fees, expert fees, etc.) and takes a percentage of any recovery. If the party doesn't recover, it does not repay the funding company and the company walks away empty-handed. Such financing arrangements have spread to Europe and are currently gaining steam in the United States. For example, two U.K.-based investment companies are actively pursuing opportunities to fund multi-million-dollar U.S. commercial litigation cases.

Read More

SB858: Immunity for Some is Justice for None

Stephen Goethel & Chad Engelhardt
Moran, Raimi, Goethel, Karnani PC

Stephen Goethel and Chad Engelhardt
Stephen Goethel and Chad Engelhardt

An emergency room physician fails to diagnose hallmark symptoms of oncoming stroke, fails to administer TPA leaving the patient in a vegetative state that could have been prevented. A radiologist misreads a chest CT, and a patient dies from a ruptured aortic aneurism that could have been repaired. An obstetrician fails to check his patient's fetal monitor, and leaves a laboring woman whose baby is in distress to get lunch from the hospital cafeteria. The baby is born with profound brain damage. A surgeon perforates a bowel during an appendectomy surgery, and closes the patient without recognizing the injury he caused; the patient develops sepsis and dies. If current legislative efforts are successful, all of the above physicians could be immune from liability for these and related acts; leaving the victims, their families, other health care professionals and ultimately the tax payers to bear responsibility for the medical neglect.

Read More

Insurance Coverage Advisor
Hal O. Carroll
Hal O. Carroll

Occurrences and the Intentional Act Exclusion
Hal O. Carroll
Vandeveer Garzia PC

Liability insurance is intended to cover accidents, not intentional injuries, and the usual policy form contains, as its first exclusion, an exclusion for intentional acts. The usual language of the intentional act exclusion is: "'Bodily injury' or 'property damage' expected or intended from the standpoint of the insured." This is one of the ways that an insurer addresses the problem of "moral hazard." Moral hazard is the risk that an insured will more likely engage risky or even intentional misbehavior simply because insurance is there to pay the loss.

Obviously the boundary between intentional and unintentional injuries is often vague, as the litigation surrounding the exception to the Worker Disability Compensation Act's exclusive remedy provision where "an injury was certain to occur"1 demonstrates.

Read More

SBM Negligence Law Section Seminar

New Orleans, May 5-8, 2011

New Orleans Jazz & Heritage Festival

Presented by SBM Negligence Law Section Seminar in conjunction with Michigan Association for Justice

Package includes:

  • Roundtrip air on Delta Airlines
  • 4 days and 3 nights at the Wonderful Omni Royal Orleans Hotel located in the heart of the French Quarter
  • Hotel tax
  • Thursday evening Welcome Cocktail Party
  • Informative Saturday Morning Seminar with Breakfast
IN THIS ISSUE
Chair's Message
Doctors Drunk with Fatigue
Financial Document Protection
Insurance Coverage Advisor
Executive Committee
Legal Update
Council Member Profile

State Bar of Michigan Negligence Council

CHAIR
David E. Christensen
Christensen & Raitt PC

VICE CHAIR
Paul J. Manion
Rutledge, Manion, Rabaut,
Terry & Thomas PC

SECRETARY
Thomas W. Waun
Waun & Parillo PLLC

TREASURER
Steven B. Galbraith
Galbraith, Gordon & Penzien PC

COUNCIL
Jody L. Aaron
McKeen & Associates PC

Mark Bernstein
The Bernstein Law Firm

Ronald F. DeNardis
DeNardis McCandless & Miller

Jennifer M. Grieco
Neuman Anderson PC

Michael R. Janes
Martin, Bacon & Martin PC

Ven Johnson
Fieger Fieger Kenney Johnson
& Giroux PC

David Mittleman
Church Wyble PC

Gerald V. Padilla
Padilla-Kostopoulos

Anne L. Randall
Portnay & Roth PC

Michael J. Sullivan
Collins, Einhorn, Farrell & Ulanoff PC

EX OFFICIO
Jose' T. Brown
Cline, Cline & Griffin PC

COMMISSIONER LIAISON
Brian D. Einhorn
Collins, Einhorn, Farrell & Ulanoff PC

LOBBYIST
Todd N. Tennis, Lansing

EDITORS
Anne L. Randall
Michael J. Sullivan

EXECUTIVE DIRECTOR
Madelyne Lawry

2009-2010 Session Ends in Stalemate

Todd Tennis
Captiol Services, Inc.

Todd Tennis

In terms of state legislative action on civil law, the past two years may have well not even happened in Michigan. Bills were introduced by various legislators aiming to expand or rescind various aspects of tort law in Michigan, but no major changes managed to make it to the Governor's desk. For example, the House passed legislation to rescind civil legal immunity for pharmaceutical manufacturers, while the Senate voted out bills to limit the statute of limitations on malpractice for architects. Neither issue made any headway in the opposite chamber.

Read More

Council Member Profile

Anne L. Randall

Anne L. Randall
Portnoy & Roth PC

Born and raised in Metro-Detroit, all of Anne's education took place in Michigan. Her motivation for becoming a lawyer stems from many healthy debates around her childhood family table. Anne has been in practice for 26 years—the last 14 of which she has dedicated to Portnoy & Roth PC Their practice revolves around defense of hospitals in medical malpractice actions, health professional licensing and contractual issues. Her greatest reward is knowing that she has helped a health professional navigate the frightening and stressful legal process.
Read More About Anne

Contact Us
Negligence Law Section
PO Box 66
Grand Ledge MI 48837
E-mail: neglawsection@comcast.net