Subject:  Geoff wants retrial |
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Chris
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Date Posted: 06/14/05 4:49pm
Fieger files for 'do over'
Web-posted Jun 10, 2005
By STEPHEN FRYE
Of The Oakland Press
In a move that has raised the eyebrows of some legal veterans, attorney Geoffrey Fieger wants a new trial in the medical malpractice case involving a baby severely burned at Beaumont Hospital in Royal Oak.
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The flamboyant attorney is asking a judge to dismiss his own case because of a mistake he said he made in filing it in 1999.
Defense lawyers oppose Fieger's move, saying that, after six years of litigation and a seven-week trial, it's too late to start over.
A jury last month rejected Fieger's claims that the hospital was responsible for lung injuries suffered by Nathan Laporte, son of Craig and Shelley Laporte of Macomb Township, whom Fieger represents. The boy was burned in an accident at the hospital. However, jurors found that the lung damage was caused by the child's premature birth and not by the fire.
The attorney wanted more than $250 million, but the Laportes were awarded only $8.2 million, and state law reduced that amount to $571,800.
Fieger's firm has filed two new separate lawsuits - both alleging essentially the same thing as in 1999 - against the hospital.
Also, in a separate motion scheduled to be heard Wednesday by Oakland Circuit Judge Gene Schnelz, Fieger is asking for his first case to be tossed out because of a faulty affidavit of merit used when it was first filed in 1999. The two new cases have been assigned to Oakland County Circuit Judge Deborah Tyner.
Nathan Laporte - born within a set of quadruplets 16 weeks premature - was 11-weeks-old when an oxygen tent in which he was placed during a medical procedure exploded into flames in October of 1997. He is now nearly 8 and requires a wheelchair and ventilator.
Fieger's firm said in the dismissal motion - written by attorney Heather Jefferson - that because the statute of limitations has not yet expired, they should be allowed to use a proper affidavit of merit, a sworn piece of testimony necessary to provide medical information backing up the suit's claims.
In effect, Fieger is asking the court to forget six years of litigation, the seven weeks of trial, and a jury's decision, Beaumont's attorney Keefe Brooks explained in a response motion.
"This motion is beyond frivolous," Brooks wrote. "It is offensive, egregious, abusive and sanctionable."
The legal maneuver might be a first, according to Oakland County Circuit Judge Richard D. Kuhn.
"I've never heard of such a thing after a trial," said the recently retired Kuhn, who presided over cases for 32 years.
The law requires that the affidavit of merit be from a doctor in the same specialty as the doctor accused of medical malpractice. Fieger relied on Dr. Carolyn Crawford, a New Jersey neonatologist. But Beaumont's Dr. Winston Chan is a general surgeon named in the case.
Fieger argues in the motion that his clients have the same rights as the defense, which he said would have pounced upon this issue if he had won a large settlement.
Jefferson wrote that Beaumont "has been lying in the weeds with this defense to unleash it at the most opportune time, i.e., in the event that the jury returned a multi-million dollar verdict."
In the newly filed suits, Fieger relies on Dr. Michael Leitman, a general surgeon, for the affidavit of merit. They also amend the affidavit of merit from Crawford, adding one phrase to the last sentence.
Initially, she testified in her affidavit that the baby suffered "burns to his head, face and arm and other damages."
Now added is: "Including but not limited to exacerbation of his underlying illness and/or medical condition."
During the trial, Fieger argued that the boy's premature lungs - which required a ventilator before the fire occurred - would have healed had it not been for the fire. Hospital experts testified the lungs were already badly damaged, testimony the jurors said they believed.
Brooks blasted Fieger for this move, demanding sanctions that Fieger's firm pay the hospital's continued legal bills.
"It is a waste of the resources of this court and litigants," Brooks said, "and it seeks to obliterate the work of this court, its staff and seven members of this community who patiently and studiously dedicated themselves through seven weeks of trial so the plaintiffs could have their 'day in court.'"
Brooks called the move "a perverse strategy which is an affront to our entire system of justice." He said it is "an appellate parachute," saying it was an error allowed to go unfixed and serve as a trump card and "seeks ... to capitalize on the alleged malpractice of their own attorneys."
In addition, the defense has filed a motion asking that the total $571,800 award - which with back interest is $768,809 - be reduced to zero, citing the nearly $450,000 already paid in nursing care by the hospital, as well as a $750,000 settlement the Laportes received from Aaron Medical Industries.
The hospital's filings indicated that home health care for Nathan cost about $23,000 a month when he was first released from the hospital in 1999. The family now owes more than $2 million in medical bills, Fieger's team has previously said.
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