A tale of two kidneys: Michigan Supreme Court orders arguments in med-mal case

By Ed Wesoloski Dolan Media Newswires The Michigan Supreme Court is considering whether to review a case that raises the issue of whether a medical-malpractice plaintiff can be compensated for the loss of a kidney when her other kidney is still functioning. After Marie Huddleston's medical care providers scanned her abdomen, she got a medical report that stated all was normal. As it turned out, everything was not normal. There was a lesion on her kidney. Five years later, another scan revealed that the lesion was much larger. It was cancerous. Huddleston's entire kidney was removed, leaving her with one functioning kidney. Huddleston sued the hospital where the scan was performed, her doctor, and IHC, a medical practice group. She alleged that a timely diagnosis would have saved the bulk of her kidney. Judge Melinda Morris of the Washtenaw County Circuit Court dismissed the case. Morris accepted defense arguments that Huddleston didn't suffer a compensable injury, and in the hospital's case, expert testimony did not establish a breach of the standard of care. In a split decision, Huddleston v Trinity Health Michigan, et al. (majority opinion) (concurring/dissenting opinion), the Michigan Court of Appeals reversed in part, ruling that a jury should decide whether Huddleston was injured. The COA affirmed the hospital's dismissal from the case. The Michigan Supreme Court has ordered oral arguments to determine whether to grant leave to appeal on the issue of compensable injury. In its decision, the COA read Sutter v Biggs, 377 Mich 80 (1966), for the proposition that damages can be awarded for loss of a "reserve" organ. In Sutter, a doctor removed one of a child's ovaries and fallopian tubes without consent. Years later, as an adult, she developed a cyst on her remaining fallopian tube, requiring its removal. The COA majority, in Huddleston, noted that the Sutter Court denied damages for loss of fertility but that the plaintiff "was allowed to recover for the loss of her 'reserve' fallopian tube (being one of two). The Huddleston majority said that "Nature has provided the human body with two kidneys and simply because the body can survive and adapt without one does not negate a doctor's responsibility to timely diagnose disease concerned with one of the pair. The human body also has two lungs, two eyes, two ears and other sets of organs which, it could be argued, are not required to perform in pairs to serve their intended purposes. We are highly concerned, however, with the potential implications in giving a 'pass' to malpractice that occurs in the case of one of a pair of duplicate organs." Dissenting in Huddleston, Judge Michael Talbot stated that testimony from plaintiff's expert established that her damages were speculative, which precludes recovery. The MSC has asked for briefing and arguments concerning whether the COA majority misapplied Sutter. Published: Mon, Apr 15, 2013

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