RAKESH NAYYAR, Personal Representative of the Estate of BIMLA NAYYAR, Deceased, Plaintiff-Appellant,
OAKWOOD HEALTHCARE, INC., d/b/a OAKWOOD HOSPITAL & MEDICAL CENTER, Defendant-Appellee.
Stephen J. Markman, Chief Justice Brian K. Zahra Bridget M.
McCormack David F. Viviano Richard H. Bernstein Kurtis T.
Wilder Elizabeth T. Clement, Justices
order of the Court, the motion for reconsideration of this
Court's July 14, 2017 order is considered, and it is
DENIED, because it does not appear that the order was entered
Markman, C.J. (concurring).
case involves a remarkable confluence of what appears to be
both medical and legal dereliction, resulting in an
extraordinary miscarriage of justice.
the medical aspect, defendant hospital erroneously placed
Bimla Nayyar's name on another patient's x-ray
records, which led to unnecessary brain surgery being
performed on Nayyar, a patient seeking treatment for a
dislocated jaw. Nayyar died as a result, and defendant later
the legal aspect, plaintiff's counsel, instead of
pleading ordinary negligence and medical malpractice in the
alternative as counselled by Bryant v Oakpointe Villa
Nursing Centre, Inc, 471 Mich. 411, 432-433 (2004),
pleaded ordinary negligence (in which damages are uncapped)
instead of medical malpractice (in which damages are capped).
Defendant moved for summary disposition at trial, contending
that plaintiff's claims sounded exclusively in medical
malpractice, not ordinary negligence, and that plaintiff had
failed to comply with the statutory notice and pleading
requirements applicable to medical malpractice claims. The
trial court granted this motion and the parties negotiated a
stipulated order that dismissed plaintiff's ordinary
negligence claim with prejudice, but stated that plaintiff
was not precluded from bringing a medical malpractice claim.
Plaintiff did not appeal the trial court's order but
instead refiled the lawsuit as a medical malpractice action,
and defendant conceded negligence so that the case proceeded
to a jury only on the issues of causation of death and
damages. At this second trial, plaintiff's counsel sought
again to raise the (uncapped) ordinary negligence
claim, and the trial court allowed plaintiff to amend the
complaint to assert ordinary negligence. During the course of
the trial, plaintiff's attorneys repeatedly asserted that
the claim being litigated was one for ordinary negligence,
and they convinced the second trial court to enter a judgment
that was unmoored from the statutory cap on damages
applicable to a medical malpractice action. The jury
eventually awarded damages of $20 million, necessarily a
judgment for ordinary negligence. Defendant then moved for a
judgment notwithstanding the verdict, arguing that the
verdict was precluded by principles of collateral estoppel
because it was predicated on ordinary negligence, a claim
that had been dismissed with prejudice by the first trial
court. This motion was denied by the second trial court, and
defendant appealed and moved for peremptory reversal of the
second trial court's decision. On appeal, the Court of
Appeals granted defendant's motion, concluding that the
second trial court's order allowing the amendment of the
complaint to include a claim of ordinary negligence
constituted an impermissible collateral attack on the first
trial court's order dismissing the ordinary negligence
claim. The Court of Appeals also held that plaintiff was
precluded by collateral estoppel from raising the ordinary
negligence claim in the second lawsuit because it had been
fully litigated and disposed of by the unappealed final order
in the first lawsuit. As a result, the Court of Appeals held
that only the theory of medical malpractice remained
available to plaintiff in the second lawsuit. The Court also
proceeded to say that "where plaintiff unequivocally
proceeded in this action under an ordinary negligence theory
and the jury awarded damages under that theory, defendant was
entitled to judgment notwithstanding the verdict[.]"
Nayyar Estate v Oakwood Healthcare, unpublished
order of the Court of Appeals, entered July 15, 2016 (Docket
summarize, plaintiff now has no negligence claim and no
medical malpractice claim, all despite the fact that (a)
defendant-hospital openly admitted negligence, (b) a jury
determined that this negligence constituted the proximate
cause of plaintiff's death, and (c) a jury awarded
plaintiff a $20 million verdict.
concur in this Court's denial of plaintiff's motion
for reconsideration because the Court of Appeals correctly
held that plaintiff's prior stipulation to the dismissal
of his negligence claim with prejudice precluded any recovery
on that claim at a subsequent trial under the collateral
attack rule and collateral estoppel. Yet the decedent's
husband's plaintive inquiry nonetheless resonates loudly:
"How is [this] possible in a just and fair world . . .
?" There is no ...