Abbott Nicholson Attorneys Win Appeal in Key Evidentiary Dispute

Posted Apr. 24th 2020

Abbott Nicholson attorneys partner Lori Barker and associate Alyssa Dechow recently prevailed in a Michigan Court of Appeals decision regarding a key evidentiary matter in the defense of a medical malpractice claim against a nursing home client.  Specifically, the Court of Appeals found the nursing home’s internal standing order requiring a nurse to notify a physician in a specific circumstance does not support a claim of ordinary negligence based on an alleged failure to comply with the order, as the standing order and the action it prompts is outside the realm of a juror’s common knowledge and experience.   The Court also found that the standing order could not be used to establish standard of care in plaintiff’s medical malpractice claim because it was not applicable outside the confines of the Defendant nursing home and therefore was not representative of the applicable community standard of care.  As the standing order is irrelevant to the standard of care or any other required element of plaintiff’s medical malpractice claim, it is inadmissible under MRE 402, even in conjunction with expert testimony.

A copy of the entire Court opinion can be found here.

Lori Barker and Alyssa Dechow are members of Abbott Nicholson’s Medical Defense and Risk Management practice.  They are located at the firm’s Troy, Michigan office and can be contacted at 313.566.2500.