The State of Michigan Court of Appeals (“Michigan Appellate Court”) recently affirmed in an unreported opinion that the trial judge in a Michigan medical malpractice case properly allowed testimony about the plaintiff driving drunk during a motor vehicle accident in 1997 in a recent medical malpractice trial against his primary care physician for failing to refer him to an ENT and failing to properly diagnose his medical condition that allegedly led to his permanent conductive hearing loss in his left ear.
The plaintiff suffered a skull fracture, permanent sensorineural hearing loss in his right ear, and mild hearing loss in his left ear as a result of a motor vehicle accident in 1997, at which time he was admittedly driving while intoxicated. The Michigan medical malpractice defendant raised the affirmative defense of comparative negligence due to the plaintiff’s drunk-driving accident in which he suffered hearing loss. The plaintiff argued that the trial court abused its discretion by allowing the defendant to admit evidence that the plaintiff was intoxicated at the time of the 1997 accident, contending that the evidence that he was driving intoxicated at the time of that accident was not relevant to his medical malpractice claims and was more prejudicial than probative.
The trial judge precluded the medical malpractice defendant from presenting evidence or argument, directly or indirectly, that the plaintiff had ever been arrested, charged, or convicted of an alcohol-related offense, but nonetheless concluded that the plaintiff’s fault for the 1997 motor vehicle accident by reason of driving while intoxicated was relevant to the jury’s consideration of “the nature of the conduct” of each person at fault under MCL 600.6304(2), and was not more prejudicial than probative.
The Michigan Appellate Court stated that had the jury found that the medical malpractice defendant was negligent in his treatment of the plaintiff’s left ear, the jury would be required to determine what proportion of the injury to the plaintiff’s left ear was the result of his own negligence in order to determine comparative fault. Even if the plaintiff is to be believed that he suffered no damage to his left ear in the 1997 accident, the plaintiff alleged that the impact of his injury to his left ear was made more severe because of the damage to his right ear. To the extent that the plaintiff’s injury to his right ear made more drastic his injury to his left ear, the Michigan Appellate Court stated that the jury would need to consider the plaintiff’s comparative negligence in causing the injury to his right ear when apportioning damages for any negligence on the part of the medical malpractice defendant.
The Michigan Appellate Court stated that MCL 600.6304(2) plainly provides that, in determining the fault attributed to each party, the jury “shall consider . . . the nature of the conduct of each person.” The Michigan Appellate Court stated that had the jury found the medical malpractice defendant negligent, the jury would have been required to consider evidence of the plaintiff’s drunk driving as the nature of the conduct comprising his comparative fault. Accordingly, the Michigan Appellate Court held that evidence of the plaintiff’s drunk driving was clearly relevant to this dispute under MRE 401 and the trial court did not err by refusing to exclude this evidence under MRE 402.
Source Otway v. Jafari, COA No. 329542
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