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  1. #1
    littlebit67 is offline Junior Member
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    Angry Bunion Surgery Botched!!!!

    What is the name of your state? Michigan
    Recently on April 10th 2008 I had surgery to correct a bunion on my left foot. My family doctor recommended the doctor that I chose so I didn't question her suggestion. During the surgery my podiatrist cut the tendon that raises the big toe upward. After the surgery the toe hung and I could've eventually tripped and broke the toe if it wasn't corrected correctly. The doctor had plans to go on vacation after his scheduled surgeries for that day so I am thinking he was in a hurry. I know this because he told me he was going to Florida as my family and I were just coming back from Disney. The podiatrist didn't consult another doctor and tried to repair his mistake by suturing the tendon himself--most likely to save time. A few days later the tendon ruptured. I went to another doctor (osteopathic) who then did surgery a couple weeks later to repair the tendon and informed my husband that the podiatrist didn't know what he was doing. I have the podiatrist on a tape recorded phone call admitting his mistake. I have another appointment with the osteopathic doctor for a follow-up after surgery appointment this friday and I plan to bring my tape recorder in order to get on tape his diagnosis of the first doctor and personal feelings on the issue. I plan to tape it secretly as he has already been trying to discourage me from any legal actions against the podiatrist. I have already consulted a lawyer but they have NO experience in Malpractice cases. Been doing alot of research on the doctor myself. He has moved his practice 3 times since obtaining his license in 1987. Hmmmm.

    I am a 41 year old mother of four kids ages 17, 11, 9, and 6. I stay home with them as I am not currently working but taking classes towards a nursing degree. I plan to start clinicals in the fall. This whole thing is very unfortunate for me as I am the only one that cooks, cleans, drives kids to events and so forth. I don't have time to be laid up like this! I am so angry!

    Do I have a case ? Any advice would be greatly appreciated!
  2. #2
    lya
    lya is offline Senior Member
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    You should not tape record anything without permission or consent or in secret. Such evidence will not be allowed as proof of anything but your activity.

    Consult with a medmal attorney and leave the investigating and evidence gathering to the attorney.
    Last edited by lya; 05-14-2008 at 09:13 PM. Reason: removed the word "criminal"
  3. #3
    littlebit67 is offline Junior Member
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    tape recording conversations

    I was told, by the attorney that I have been talking to, that taped conversations ARE legal as long as the person doing the taping is involved in the conversations. He said that most people don't know that.
  4. #4
    mommyof4 is offline Senior Member
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    Quote Originally Posted by littlebit67 View Post
    I was told, by the attorney that I have been talking to, that taped conversations ARE legal as long as the person doing the taping is involved in the conversations. He said that most people don't know that.
    Then you need to consult better attorneys.
    Mich. Comp. Laws 750.539c: A private conversation legally cannot be overheard or recorded without the consent of all participants. Illegal eavesdropping can be punished as a felony carrying a jail term of up to two years and a fine of up to $2,000.

    In addition, any individual who divulges information he knows, or reasonably should know, was obtained through illegal eavesdropping is guilty of a felony punishable by imprisonment for up to two years and a fine of up to $2,000. Mich. Comp. Laws 750.539e. Civil liability for actual and punitive damages also are sanctioned. Mich. Comp. Laws 750.539h.

    The eavesdropping statute has been interpreted by one court as applying only to situations in which a third party has intercepted a communication, an interpretation that makes it legal for a participant in a conversation to record that conversation without the permission of other parties. Sullivan v. Gray, 324 N.W.2d 58 (Mich. Ct. App. 1982).

    The state supreme court stated in a July 1999 ruling that a participant in a conversation "may not unilaterally nullify other participants' expectations of privacy by secretly broadcasting the conversation" and that the overriding inquiry should be whether the parties "intended and reasonably expected that the conversation was private." Therefore, it is likely that a recording party may not broadcast a recorded conversation without the consent of all parties. Dickerson v. Raphael, 601 N.W.2d 108 (Mich. 1999).

    Under the Michigan statute, a parent may not vicariously consent to a recording for a minor child. Williams v. Williams, 603 N.W. 2d 114 (Mich. Ct. App. 1999).

    It is a felony to observe, photograph or eavesdrop on a person in a private place without the person's consent. Mich. Comp. Laws 750.539d. A private place is a place where one may reasonably expect to be safe from intrusion or surveillance, but not a place where the public has access. Mich. Comp. Laws 750.539a
    .
  5. #5
    littlebit67 is offline Junior Member
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    Good to know!

    My husband was in the office with me when the clerk for my lawyer told us that taped conversations were legal. I will print out what you sent me and hand it to him personally.
    Thank you!!!!
  6. #6
    mommyof4 is offline Senior Member
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    Quote Originally Posted by littlebit67 View Post
    My husband was in the office with me when the clerk for my lawyer told us that taped conversations were legal. I will print out what you sent me and hand it to him personally.
    Thank you!!!!
    You're welcome.

    I hope you can get this situation resolved.
  7. #7
    lealea1005 is offline Senior Member
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    Quote Originally Posted by littlebit67 View Post
    What is the name of your state? Michigan
    He has moved his practice 3 times since obtaining his license in 1987. Hmmmm.
    What's so "hmmmmmm" about that? Doctors can move their practices for many reasons, none of which are cause for suspicion.

    Good luck with clinicals.
  8. #8
    littlebit67 is offline Junior Member
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    Arrow Update on Phone call Taping!

    I talked to a lawyer online and this is what he told me...

    I reviewed the statutes on the matter.. I found no section that prohibits you from taping if you are in the conversation. The closest is:

    750.539c Eavesdropping upon private conversation.


    Sec. 539c.

    Any person who is present or who is not present during a private conversation and who wilfully uses any device to eavesdrop upon the conversation without the consent of all parties thereto, or who knowingly aids, employs or procures another person to do the same in violation of this section, is guilty of a felony punishable by imprisonment in a state prison for not more than 2 years or by a fine of not more than $2,000.00, or both.

    But that applies to a third person


    I also called the lawyers office that I have been consulting with and they assured me that Michigan law does not prohibit two party taping as long as one person in the conversation is the one doing the taping (which I am). They know this to be a fact because my lawyer called the Michigan state bar association and checked it himself!

    As for LeaLea1005
    Please take that quote off!
    I am not dumb. People like you make people like me want to work harder to prove you wrong!
    Last edited by littlebit67; 05-14-2008 at 04:07 PM. Reason: addition of content
  9. #9
    seniorjudge is offline Senior Member
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    The state supreme court stated in a July 1999 ruling that a participant in a conversation "may not unilaterally nullify other participants' expectations of privacy by secretly broadcasting the conversation" and that the overriding inquiry should be whether the parties "intended and reasonably expected that the conversation was private." Therefore, it is likely that a recording party may not broadcast a recorded conversation without the consent of all parties. Dickerson v. Raphael, 601 N.W.2d 108 (Mich. 1999).


    Ask your lawyer what he thinks about that case and post back.
    There are two rules for success:

    (1) Never tell everything you know.
  10. #10
    las365 is offline Senior Member
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    Legality or illegality aside, a secretly made recording of your doctor giving an opinion that the podiatrist ddn't know what he was doing will be meaningless in a lawsuit. To prevail in a med mal case you will need experts to testify as to failure to meet the standard of care and your resulting damages. Playing a fuzzy recording of an unwilling witness isn't going to cut it.
  11. #11
    lealea1005 is offline Senior Member
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    Quote Originally Posted by littlebit67 View Post

    As for LeaLea1005
    Please take that quote off!
    I am not dumb. People like you make people like me want to work harder to prove you wrong!

    Ummmm.....where, exactly, did I state you were dumb? As a matter of fact, I wished you well with your clinicals.
    Last edited by lealea1005; 05-14-2008 at 04:20 PM.
  12. #12
    littlebit67 is offline Junior Member
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    Wink Reply to Senior Judge

    I appreciate your comments. All I know is what I am told. I wish I had more knowledge in Michigan law and plan to do some reading on this myself since I am laid up with a cast on my foot. Today I ventured out to get a gallon of milk and came home drenched in sweat and slept for two hours as the whole ordeal was exhausting. I have only been home from the hospital one week today. This whole thing was not necessary and could've been prevented if I had a surgeon that took his job seriously. I just want to help my case by getting any information that will be helpful to me. I only want to tell the truth and not fabricate any information. So if I want to tape my doctor on a phonecall admitting his mistake then I believe it is not wrong. Especially since he did not write the mistake on the operative report. I only want the truth!
    It is possible that you are right about the case you mentioned (Dickerson v. Raphael, 601 N.W.2d 108 (Mich. 1999). ). I know that the law can be taken different ways. I am not being malicious at all and believe that certain laws are in place to protect people like me. Unfortunately there are those that use the law to twist its meaning for the sake of their own ventures.
    Thanks!
    Last edited by littlebit67; 05-14-2008 at 04:23 PM. Reason: spelling error
  13. #13
    ecmst12 is offline Senior Member
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    As far as the statute and the case law posted here have indicated, it's not illegal to tape a conversation that you are participating in. But it would be illegal for you to PLAY the tape for anyone other then you and the other person on the tape, without consent of both parties.
  14. #14
    littlebit67 is offline Junior Member
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    QUOTE
    ecmst12
    As far as the statute and the case law posted here have indicated, it's not illegal to tape a conversation that you are participating in. But it would be illegal for you to PLAY the tape for anyone other then you and the other person on the tape, without consent of both parties
    .

    I understand what you are saying but, according to my lawyer the purpose for the tape is to have the information at hand and use it as a bargaining tool? I believe that is what I was told. According to what you are saying it wouldn't do me "any good" to have it and not be able to use it.
  15. #15
    las365 is offline Senior Member
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    I have already consulted a lawyer but they have NO experience in Malpractice cases.
    Is this the lawyer you are taking advice from? Get one who knows how to handle a med mal case. Secretly taping your new doctor and trying to get him to say bad things about the podiatrist, thinking that you are going to get some smoking gun tape you can use to force a settlement is a stupid idea. And it won't work.

    The very first answer you got here:
    Consult with a medmal attorney and leave the investigating and evidence gathering to the attorney.
    was the best advice.

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