Order                                                                       Michigan Supreme Court
                                                                                  Lansing, Michigan

  February 7, 2018                                                                  Stephen J. Markman,
                                                                                               Chief Justice

  154603(73)                                                                              Brian K. Zahra
                                                                                  Bridget M. McCormack
                                                                                        David F. Viviano
  RAKESH NAYYAR, Personal Representative                                            Richard H. Bernstein
  of the Estate of BIMLA NAYYAR, Deceased,                                               Kurtis T. Wilder
                 Plaintiff-Appellant,                                              Elizabeth T. Clement,
  v                                                      SC: 154603                                 Justices
                                                         COA: 329135
                                                         Wayne CC: 13-009819-NH
  OAKWOOD HEALTHCARE, INC., d/b/a
  OAKWOOD HOSPITAL & MEDICAL CENTER,
             Defendant-Appellee.
  _________________________________________/

         On 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 erroneously.

         MARKMAN, C.J. (concurring).

         This case involves a remarkable confluence of what appears to be both medical
  and legal dereliction, resulting in an extraordinary miscarriage of justice.

         Concerning 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 conceded negligence.

          Concerning 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
                                                                                                               2

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 No. 329135).

       To 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.

        I 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 satisfactory answer, in my judgment, only that further review of
this matter might well be pursued in an appropriate action.

       WILDER, J., did not participate because he was on the Court of Appeals panel.




                         I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the
                   foregoing is a true and complete copy of the order entered at the direction of the Court.
                               February 7, 2018
       a0123
                                                                             Clerk
