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The Law of Medical Malpractice in Michigan:

A Survey of Basic Considerations

Michigan medical malpractice law is among the most complex legal practice areas. The statutes, case-law, and regulations governing medical malpractice law in Michigan are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Michigan exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer.

Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Michigan by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Michigan medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both non-lawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in Michigan. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through XIII examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Michigan.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in Michigan?
-Required Elements of a Medical Malpractice Claim in Michigan
-Introduction
-The Basic Elements
-Standard of Care
-Non-Physician Defendants
-Causation—Cause in Fact and Proximate Cause
-Exceptions to Expert Witness Requirement

II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in Michigan
-The Discovery Rule
-Introduction
-The Discovery Rule in Michigan
-Exceptions to General Statute of Limitations
-Minors
-Insanity
-Fraudulent Concealment

III. Statute of Repose—Absolute Bar to Recovery
-Introduction
-Statute of Repose in Michigan

IV. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Sovereign Immunity in Michigan
-Good Samaritan Act
-Introduction
-Good Samaritan Act in Michigan

V. Pre-Suit Requirement: 182-Day Notice of Intent

VI. Required Elements of a Medical Malpractice Complaint

VII. Affidavit of Merit

VIII. Medical Expert Witnesses
-Introduction
-Qualifying as Expert Medical Witness in Michigan
-Expert Witness Testimony at Affidavit of Merit Stage and Trial Stage
-Qualifying as a Specialist Expert Witness
-Admissibility of Expert Testimony About Scientific Principles and Discoveries
-Introduction
-Admissibility of Scientific Principles and Discoveries in Michigan

IX. Comparative Negligence

X. Limitations on Non-economic Damages

XI. Limitations on Attorney Fees
-Contingent Fee Arrangement
-Limitations on Attorney Fees in Michigan

XII. Apologies and Sympathetic Gestures

XIII. Mandatory Mediation Panel

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in Michigan?

Medical malpractice is a specific type of professional negligence by a healthcare provider.  In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice.  When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

According to the Michigan Supreme Court, medical malpractice can occur only within the course of a professional relationship, and claims based on medical malpractice necessarily raise questions involving medical judgment.  Bryant v. Oakpointe Villa Nursing Centre, 684 N.W.2d 864, 871 (Mich. 2004).  That is in contrast to claims based on ordinary negligence where the issues involved are within the common knowledge and experience of the ordinary person, i.e., the trier of fact.  Id.  In Bryant, the Supreme Court instructed:

[A] court must ask two fundamental questions in determining whether a claim sounds in ordinary negligence or medical malpractice:

  • whether the claim pertains to an action that occurred within the course of a professional relationship; and
  • whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience.

If both of these questions are answered in the affirmative, the action is subject to the procedural and substantive requirements that govern medical malpractice actions.  Id.

The Supreme Court approvingly cited the Michigan Court of Appeals’ definition of medical malpractice in which the Court of Appeals held:

[M]edical malpractice … has been defined as the failure of a member of the medical profession, employed to treat a case professionally, to fulfill the duty to exercise that degree of skill, care and diligence exercised by members of the same profession, practicing in the same or similar locality, in light of the present state of medical science.  Id. at 872 (quoting Adkins v. Annapolis Hospital, 116 Mich App 558, 564 (1982)).

Under Michigan law, whether a particular claim is for ordinary negligence or medical malpractice is an extremely significant distinction.  The procedural requirements and standards of proof governing medical malpractice claims are far more demanding and complex than those for ordinary negligence.  Accordingly, how a claim is ultimately characterized will have an enormous effect on the commencement, prosecution, and resolution of the claim. A plaintiff cannot avoid the more onerous medical malpractice claims process and governing laws by simply labeling his or her claim something other than a medical malpractice claim when commencing an action.  Wilson v. Stilwill, 411 Mich 587 (1981).

Required Elements of a Medical Malpractice Claim in Michigan

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Michigan law.  Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation.  Some degree of risk is inherent in most medical procedures.  The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment.  The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment.  While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

Michigan medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury.  The negligence must be the actual cause in fact as well as the proximate cause of the patient’s injury.  The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior.  That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

The Basic Elements

The basic elements of a compensable medical malpractice claim are discussed below, and the burden is on the plaintiff to prove each of the elements.  The standard of care, breach thereof, causation, and injury elements are codified inMichigan Compiled Laws (“MCL”)§600.2912a, and legal duty as a required element of a medical malpractice claim has been unequivocally established by the Michigan Supreme Court.Bryant v. Oakpointe Villa Nursing Centre, 684 N.W.2d 864 (Mich. 2004).  “Duty is essentially a question of whether the relationship between the actor and the injured person gives rise to any legal obligation on the actor’s part for the benefit of the injured person.”  Moning v. Alfono, 400 Mich 425, 438-439 (1977).In general terms, the basic elements of a Michigan medical malpractice claim are:

  1. Duty;
  1. The applicable standard of care;
  1. Breach of that standard of care by the defendant;
  1. Injury; and
  1. Proximate causation between the alleged breach and the injury. MCL §600.2912a, Locke v. Pachtman, 446 Mich 216, 222 (1994), and Schultz v. Consumers Power Co., 443 Mich 445, 449 (1993).

MCL §600.2912a states:

[I]n an action alleging malpractice, the plaintiff has the burden of proving that in light of the state of the art existing at the time of the alleged malpractice:

  • The defendant, if a general practitioner, failed to provide the plaintiff the recognized standard of acceptable professional practice or care in the community in which the defendant practices or in a similar community, and that as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.
  • The defendant, if a specialist, failed to provide the recognized standard of practice or care within that specialty as reasonably applied in light of the facilities available in the community or other facilities reasonably available under the circumstances, and as a proximate result of the defendant failing to provide that standard, the plaintiff suffered an injury.

Standard of Care

In medical malpractice cases, expert testimony is almost always required to establish the applicable standard of care and “to educate the jury and the court regarding matters not within their common purview.”  Locke, 446 Mich at 223.  The Michigan Supreme Court explained the expert testimony requirement as follows:

In a case involving professional service, the ordinary layman is not equipped by common knowledge and experience to judge of the skill and competence of that service and determine whether it squares with the standard of such professional practice in the community. For that, the aid of expert testimony from those learned in the profession involved is required.  Lince v. Monson, 363 Mich 135, 140 (1961).

The applicable standard of care is “the degree of diligence and skill which is ordinarily possessed by the average of the members of the profession in similar localities.”  Rytkonen v. Lojacono, 269 Mich 270, 274 (1934).  The defendant is not held to “the peculiar skill or methods of practice used in famous medical institutions.  Nor is the treatment another physician would have used under the circumstances the test.”  Id.

Any expert witness who seeks to provide opinion testimony must first demonstrate his or her knowledge of the applicable standard of care.  Bahr v. Harper-Grace Hospitals, 448 Mich 135, 141 (1995).  This determination cannot be made by simply comparing the practice area of the expert witness with that of the defendant and conclude that the expert witness is not qualified if their practice areas do not match. Siirila v. Barrios, 398 Mich 576, 590 (1976).  Rather, the standard is whether the prospective expert witness actually knows the relevant standard of care applicable to the defendant under the circumstances in the case.  Id. The expert witness’ knowledge of the applicable standard of care can be established by demonstrating he or she possesses the necessary learning, training, skill, or practical experience to enable the expert to competently provide such testimony.  Moore v. Lederle Laboratories, 392 Mich 289, 295-296 (1974).

The standard of care for general practitioners is subject to the locality rule, which holds the relevant standard of care is that which applies “in the community in which the defendant practices or in a similar community….”  MCL §600.2912a(1)(a). “An expert familiar with the standard of care in a community may testify concerning the standard of care in that community, although he has not practiced in the community.”  Bahr, 448 Mich at 141.

However, the locality rule plays no role in determining the applicable standard of care for specialists.  Siirila, 398 Mich at 598.  The Michigan Supreme Court announced that “geographical conditions or circumstances control neither the standard of a specialist’s care nor the competence of an expert’s testimony.”  Naccarato v. Grob, 384 Mich 248, 253-254 (1970).  Furthermore, the statute governing the standard of care for specialists makes no reference to “the community in which the defendant practices or similar community” as it does for general practitioners.  MCL §600.2912a(1)(b).  According to the Supreme Court, a “specialist is not measured by a local rule but by a national standard because: ‘The reliance of the public upon the skills of a specialist and the wealth and sources of his knowledge are not limited to the geographic area in which he practices.’”  Francisco v. Parchment Clinic, 407 Mich 325, 328 (1979) (quoting Naccarato, 384 Mich at 253-254).

Notably, the Michigan Supreme Court has ruled that “a specialist may testify as to the standard of care of a general practitioner as long as the witness is knowledgeable about the general practitioner’s standard of care.”  Siirila, 398 Michat 597.  According to the Court, the rule is whether the prospective witness has “knowledge of the standard of care about which he or she is testifying.”  Id. at 593.Since specialists and general practitioners are both medical doctors, a specialist can be qualified to testify about the standard of care of a general practitioner.  Id.As with any expert medical witness opinion testimony, the weight to be given to such testimony is a matter for the jury.  Harvey v. Silber, 300 Mich 510, 517 (1942).

Non-Physician Defendants

The standard of care contained in MCL §600.2912a applies only to healthcare professionals who engage in the “practice of medicine” as defined in MCL §600.17001(1) or are “medical practitioners.”Cox v. Board of Hospital Managers for City of Flint, 651 N.W.2d 356, 365-366 (Mich. 2002).  In Cox, the Michigan Supreme Court held that the standard of care in MCL §600.2912a is not applicable to nurses.  Id. at 367.  The reason is because nurses “do not engage in the practice of medicine.”  Id. at 365.  Instead, nurses engage in the “practice of nursing” as defined in MCL §333.17201(1), which is separate and distinct from the practice of medicine in MCL §600.17001(1).  Id. at 366.

The Supreme Court in Cox made it very clear that the MCL §600.2912a standard of care applies only to a “medical practitioner” or a person “engaged in the practice of medicine.”  Id. at 365.  The broader implication of the Cox decision is that the same analysis will be applied when determining the applicable standard of care for other non-physician healthcare providers.

Healthcare providers who are not subject to the standard of care contained in MCL §600.2912a, such as nurses, are subject to the standard of care at common law.  Id. at 366.  According to the Michigan Supreme Court, the common law standard of care is “the skill and care ordinarily possessed and exercised by practitioners of the profession in the same or similar localities.”  Id. at 366-367.  That is the standard of care for nurses and other healthcare providers who do not qualify for coverage under MCL §600.2912a.  The applicable standard of care in a particular case involving a nurse or other healthcare provider not subject to MCL §600.2912a must be established by expert testimony.  Wiley v. Henry Ford Cottage Hospital, 257 Mich App 488, 492 (2003).

Causation—Cause in Fact and Proximate Cause

Under Michigan law, proof of causation requires both cause in fact and proximate (or legal cause).  Haliw v. City of Sterling Heights, 627 N.W.2d 581, 588(Mich. 2001).  Cause in fact requires that the harmful result would not have occurred but for the defendant’s negligent conduct.  Skinner v. Square D Co., 445 Mich 153, 163 (1994).  On the other hand, proximate cause generally “involves examining the foreseeability of consequences, and whether a defendant should be held legally responsible for such consequences.”  Id.According to the Michigan Supreme Court, a “plaintiff must adequately establish cause in fact in order for legal cause or ‘proximate cause’ to become a relevant issue.”  Id.

For cause in fact, the plaintiff is required to present substantial evidence from which a jury may conclude that it is more likely than not, but for the defendant’s negligence, the plaintiff would not have been injured.  Skinner, 445 Mich at 164-165.  The Michigan Supreme Court provided this guidance on the issue of cause in fact:

Generally, an act or omission is a cause in fact of an injury only if the injury could not have occurred without (or “but for”) that act or omission.  While a plaintiff need not prove that an act or omission was the sole catalyst for his injuries, he must introduce evidence permitting the jury to conclude that the act or omission was a cause.

It is important to bear in mind that a plaintiff cannot satisfy this burden by showing only that the defendant may have caused his injuries. Our case law requires more than a mere possibility or a plausible explanation.  Rather, a plaintiff establishes that the defendant’s conduct was a cause in fact of his injuries only if he “set[s] forth specific facts that would support a reasonable inference of a logical sequence of cause and effect.”  A valid theory of causation, therefore, must be based on facts in evidence.  And while “‘[t]he evidence need not negate all other possible causes,’” this Court has consistently required that the evidence” ‘exclude other reasonable hypotheses with a fair amount of certainty.’” [emphasis in original]Craig ex rel. Craig v. Oakwood Hospital, 684 N.W.2d 296, 310 (Mich. 2004) (internal citations omitted).

Proximate cause can be a confusing and nebulous concept[1].  The Michigan Supreme Court described it as “a term of art involving both cause in fact and legal cause.”  Skinner, 445 Mich at 162-163.  Proximate cause encompasses foreseeability of the consequences of the defendant’s negligence as well as public policy considerations. Moning v. Alfono, 400 Mich 425 (1977).According to the Supreme Court, in “order to be a proximate cause, the negligent conduct must have been a cause of the plaintiff’s injury and the plaintiff’s injury must have been a natural and probable result of the negligent conduct.”  O’Neal v. St. John Hospital & Medical Center, 791 N.W.2d 853, 858 (Mich. 2010).  It is well-established under Michigan law that “there can be more than one proximate cause contributing to an injury.”  Id.“When a number of factors contribute to produce an injury, one actor’s negligence will not be considered a proximate cause of the harm unless it was a substantial factor in producing the injury.”  Brisboy v. Fibreboard Corp., 429 Mich 540, 547 (1988).

Proximate cause must be established by a preponderance of the evidence.  Craig, 684 N.W.2d at 309.  The Michigan Supreme Court’s established standard of proof for proximate cause is codified in MCL §600.2912a(2), which states: “In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants.”  Whether proximate cause has been established in a case is ordinarily for the jury to decide; however, if public policy issues are present or reasonable minds could not differ, then the issue is a matter of law for the court.  Moll v. Abbott Laboratories, 444 Mich 1, 14 (1993).

Exceptions to Expert Witness Requirement

There are exceptions to the general requirement that expert witness testimony is need to establish the basic elements of a medical malpractice case.  Locke v. Pachtman, 446 Mich 216, 230 (1994).  One exception is “where the lack of professional care is so manifest that it would be within the common knowledge and experience of the ordinary layman that the conduct was careless and not conformable to the standards of professional practice and care employed in the community.”Lince v. Monson, 363 Mich 135, 141 (1961).  For instance, where a needle was left inside the plaintiff’s body following an appendectomy, the Michigan Supreme Court concluded that no expert witness testimony was required to establish the applicable standard of care and breach thereof since the facts involved were not “beyond the knowledge of laymen.”  LeFaive v. Asselin, 262 Mich 443, 446 (1933).

The doctrine of res ipsa loquitur is another exception.  In 1987, the Michigan Supreme Court explicitly recognized the doctrine of res ipsa loquitur as applying to medical malpractice claims.  Jones v. Porretta, 428 Mich 132, 150 (1987).  The Court announced: “We, therefore, acknowledge the Michigan version of res ipsa loquitur which entitles a plaintiff to a permissible inference of negligence from circumstantial evidence.”  Id.Res ipsa loquitur is Latin for “the thing speaks for itself.”The doctrine of res ipsa loquitur is permitted in medical malpractice cases as a very narrow exception to the requirement of expert testimony, so if the conditions for its application are satisfied, the case may proceed to the jury without the need for expert witness testimony to establish the required elements.Woodard v. Custer, 702 N.W. 522, 525 (Mich. 2005).

The classic example is when the wrong limb is amputated, e.g., right leg amputated instead of the left one, resulting in the loss of both legs since the left one must still be amputated as originally planned.  Undoubtedly, the wrong limb does not get amputated without someone being negligent, and it does not require expert witness testimony to educate jurors that negligence occurred.

In order for the doctrine to apply in a Michigan medical malpractice case, the plaintiff must meet the following conditions set forth by the Supreme Court in Jones:

  1. The event must be of a kind which ordinarily does not occur in the absence of someone’s negligence;
  1. It must be caused by an agency or instrumentality within the exclusive control of the defendant;
  1. It must not have been due to any voluntary action or contribution on the part of the plaintiff; and

Evidence of the true explanation of the event must be more readily accessible to the defendant than to the plaintiff. Id. at 150-151.

[1] A full discussion and analysis of the many nuances, principles, and tests associated with proximate cause are well beyond the scope of this article.  To begin a thorough examination of proximate cause, start by reading the Michigan Supreme Court cases O’Neal v. St. John Hospital & Medical Center, 791 N.W.2d 853 (Mich. 2010) (interpreting MCL §600.2912a), Craig ex rel. Craig v. Oakwood Hospital, 684 N.W.2d 296 (Mich. 2004), Haliw v. City of Sterling Heights, 627 N.W.2d 581, (Mich. 2001), and Skinner v. Square D Co., 445 Mich 153 (1994), together with their progeny.

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Michigan

The period in which a plaintiff has to commence a medical malpractice action is governed by an intricate series of interconnected statutes and applicable case law.  The general statute of limitations is contained in MCL §600.5805(1) and (6), which requires medical malpractice actions be brought within two years from the date the claim accrued.  A claim based on medical malpractice “accrues at the time of the act or omission that is the basis for the claim of medical malpractice.”  MCL §600.5838a(1).  Therefore, under the general statute of limitations for medical malpractice, an action must be commenced within two years from the date of the alleged negligence by the healthcare provider.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule.  In general, the Discovery Rule is an exception to the general statute of limitations.  It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision.  The rationale underlying the Discovery Rule is to prevent the statute of limitations from barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Michigan

Michigan has codified the Discovery Rule with respect to medical malpractice claims in MCL §5838a(2).  It provides that a claim based on medical malpractice must be commenced within the two-year general limitations period “or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later.”  Michigan’s Discovery Rule permits the plaintiff to bring an action after the general two-year limitations period has expired but within six months of actually or constructively discovering the injury.

“The burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition, or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim is on the plaintiff.”Id.Discovery of the injury by itself is not sufficient to trigger the running of the six-month limitations period.  Moll v. Abbott Laboratories, 444 Mich 1, 23-24 (1993).  Rather, once the plaintiff is aware of both the injury “and its possible cause,” the plaintiff is then aware of a possible cause of action, and the six-month limitations period begins to run.  Id.  The “possible cause of action” standard applies to medical malpractice cases.  Solowy v. Oakwood Hospital Corporation, 561 N.W.2d 843, 847 (Mich. 1997).

In general, a medical malpractice action that is not commenced within the time period prescribed by either the general limitations period or the Discovery Rule is barred.  Id.Dismissal of an action based upon the expiration of the applicable limitations period pursuant to Michigan Court Rules (“MCR”)2.116(C)(7) “operates as an adjudication on the merits” under MCR 2.504(B)(3).Al-Shimmari v. Detroit Medical Center, 731 N.W.2d 29, 37-38 (Mich. 2007).  The result is that the claim can never be brought again against the defendant.  Furthermore, the Michigan Supreme Court held that any remaining defendants named in the action cannot be held vicariously liable for the actions of the defendant against whom the action had been dismissed.  Id. at 38.

The third interconnected statutory provision governing the period in which a plaintiff may commence an action is the statute of repose contained in MCL §5838a(2), which states no claim may be brought six years after the date of the alleged negligence (see Section III of this article for discussion of the statute of repose).

Exceptions to General Statute of Limitations

Michigan law contains several statutory provisions that can extend or toll the general two-yearstatute of limitations for medical malpractice claims.

Minors

There are a number of different rules and limitations periods for minors.  First, if a plaintiff was younger than eight years old when the claim accrued, he or she must file a complaint before his or her tenth birthday or before the general two-year period of limitations expires, whichever is later.  MCL §600.5851(7).  Second, if the plaintiff was eight years of age or older when the claim accrued, then the standard two-year limitation period applies.  Id.Finally, if the plaintiff was younger than thirteen years old when the claim accrued and the claim involves injury to the plaintiff’s reproductive system, then the plaintiff must file a complaint before his or her fifteenth birthday or before the general two-year period of limitations expires, whichever is later.  MCL §600.5851(8).

The Discovery Rule applies to medical malpractice actions involving minors.  MCL §600.5838a(2).  However, the limitations periods governing the commencement of actions involving minors in MCL §600.5851(7) and (8) are not subject to the six-year statute of repose.  Id.

Insanity

The general two-year statute of limitations is tolled if the plaintiff is insane at the time the claim accrues.  MCL §600.5851(1).  The statute provides that the plaintiff “shall have 1 year after the disability is removed … [to] bring the action although the period of limitations has run.”  The Michigan Supreme Court held that the insanity tolling provision of  MCL §600.5851(1) applies to medical malpractice claims.  Vega v. Lakeland Hospital at Niles and St. Joseph, Inc., 736 N.W.2d 561, 565 (Mich. 2007).  The term ‘insane’ is defined as “a condition of mental derangement such as to prevent the sufferer from comprehending rights he or she is otherwise bound to know and is not dependent on whether or not the person has been judicially declared to be insane.”  MCL §600.5851(2).  To toll the statute of limitations, the plaintiff must be insane at the time the claim accrues; if the insanity comes into existence after the date of accrual, the limitations period is not tolled.  MCL §600.5851(3).

Fraudulent Concealment

The general two-year statute of limitations is tolled if “a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of” the prospective plaintiff.  MCL §600.5855.  If the defendant engaged in fraudulent concealment, the plaintiff may commence an action within two years after he or she discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim.  Id.

In order to establish fraudulent concealment, the law requires:

To prove fraudulent concealment, plaintiff must show that a person who is or may be liable for the claim engaged in some arrangement or contrivance of an affirmative character that was designed to prevent subsequent discovery of the existence of the claim or identity of the person liable for the claim.  Plaintiff must specifically plead the acts or misrepresentations that comprised the fraudulent concealment and prove that they were designed to prevent subsequent discovery.  Shember v. University of Michigan Medical, 760 N.W.2d 699, 707 (Mich. 2008) (internal citations omitted).

The foregoing discussion on the statute of limitations represents only a very broad overview of the basic issues in connection with the topic.  The myriad technical rules and nuances governing the period of time in which a medical malpractice claim may be brought are exceptionally complex and potentially confusing (and well beyond the scope of this article) for anyone other than an experienced Michigan medical malpractice attorney.In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact an attorney who specializes in medical malpractice law at the earliest possible opportunity.

III.  Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations.  Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed.  If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them.  The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes.  A statute of limitations is generally triggered when the cause of action accrues.

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued.  In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury.  The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued.  Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or is deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists.  A statute of repose serves as an absolute bar to recovery.  Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations.  The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose.  In fact, even many practicing lawyers do not fully appreciate the critical differences between the two.  This is likely due to the fact that statutes of repose are relatively rare.  Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in Michigan

Medical malpractice claims in Michigan are subject to a six-year statute of repose.  MCL §600.5838a(2) provides that a medical malpractice claim “shall not be commenced later than 6 years after the date of the act or omission that is the basis for the claim.”  The triggering event for the start of the six-year repose period is occurrence of the negligence, which means that the repose period can expire and the claim extinguished even before the patient is aware or has reason to be aware of the injury.  That is the very essence of a statute of repose.

The Discovery Rule does not toll or otherwise extend the six-year repose period.  Burton v. Macha, 846 N.W.2d 419, 422 (Mich. Ct. App. 2014).  The Michigan Court of Appeals noted: “The only exceptions to the running of this six-year statute of repose are those created by the minority saving provisions of MCL §600.5851(7) and (8)[1]—the only two exceptions specifically mentioned in the statute.” [emphasis in original]Id.However, MCL §600.5856 explicitly tolls the statute of repose upon the occurrence of any of the three enumerated conditions.

The Michigan Supreme Court described a statute of repose as a statute barring any suit that is brought after a specified time since the defendant acted.  Frank v. Linkner, No. 151888 (2017).  “A statute of repose prevents a cause of action from ever accruing when the injury is sustained after the designated statutory period has elapsed.  A statute of limitation[s], however, prescribes the time limits in which a party may bring an action that has already accrued.”  Id. (quoting Sills v. Oakland General Hospital, 220 Mich App 303, 308 (1996)).

[1] Subsections (7) and (8) provide special rules for plaintiffs younger than eight and thirteen, respectively, at the time the claim accrues.

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Michigan

Claims against the government in Michigan are governed by the Governmental Immunity Act, MCL §691.1401 to §691.1419.  The general rule under Michigan law is that government agencies, municipalities, and employees are immune from civil liability for negligent acts performed within the scope of a government function.  MCL §691.1407.  Government function is defined as “an activity that is expressly or impliedly mandated or authorized by constitution, statute, local charter or ordinance, or other law.”  MCL §691.1401(b).  The grant of immunity allows government agencies and employees to carry out ministerial acts without the continual threat of legal action as a result of their actions and decisions.

The grant of immunity in the statute explicitly does not apply to a governmental agency or an employee “with respect to providing medical care or treatment to a patient.”  MCL §691.1407(4).  As such, government run hospitals and medical centers along with their employees are subject to medical malpractice actions.  Briggs v. Oakland Co., 276 Mich App 369 (2007).  There is an exception to the medical care exception to governmental immunity embodied in MCL §691.1407(4), which provides that the immunity waiver does not apply to “a hospital owned or operated by the department of community health or a hospital owned or operated by the department of corrections….”

Authorized claims against the government are subject to the various procedures and rules in the Court of Claims Act, MCL §600.6401 to §600.6475.  MCL §691.1410.  For any medical malpractice claim against a government defendant, the plaintiff must file with the clerk of the Court of Claims a Notice of Intention to file a claim or the claim itself within six months of the date of the event giving rise to the cause of action.  MCL §600.6431(3).

Good Samaritan Act

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.  Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation.  As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Act in Michigan

Michigan has a series of Good Samaritan laws contained in MCL §691.1501 to §691.1507.  However, Michigan does not have a general Good Samaritan law applicable to laypeople in emergency situations.  Instead, all of the Good Samaritan statutes in Michigan cover medical personnel, first responders, and specific situations.

For example, MCL §691.1501(1) is representative of the statutory scheme created by the state’s Good Samaritan statutes.  It provides that a “physician, physician’s assistant, registered professional nurse, licensed practical nurse, or licensed EMS provider who in good faith renders emergency care without compensation at the scene of an emergency” is not liable for civil damages as a result of rendering emergency care.

The grant of immunity does not apply if the acts or omissions amount to gross negligence or willful and wanton misconduct.  Id.The definition of gross negligence used by various Michigan statutes that provide limited immunity to certain groups is “conduct so reckless as to demonstrate a substantial lack of concern for whether an injury results.”  Xu v. Gay, N.W.2d 166, 170 (Mich. Ct. App. 2003).

V. Pre-Suit Requirement: 182-Day Notice of Intent

Prior to filing a medical malpractice lawsuit, the plaintiff is required to furnish written Notice of Intent to file a claim to each defendant at least 182 days before commencing the action.  MCL §600.2912b(1) provides: “a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.”  However, if a defendant informs the plaintiff in writing that the defendant does not intend to settle the claim within the applicable notice period, the plaintiff may commence an action against the defendant immediately.  MCL §600.2912b(9).

The Notice must contain the following:

  1. The factual basis for the claim;
  1. The applicable standard of practice or care alleged by the claimant;
  1. The manner in which it is claimed that the applicable standard of practice or care was breached by the health professional or health facility;
  1. The alleged action that should have been taken to achieve compliance with the alleged standard of practice or care;
  1. The manner in which it is alleged the breach of standard of practice or care was the proximate cause of the injury claimed in the notice; and
  1. The names of all health professionals and health facilities the claimant is notifying under the statute in relation to the claim. MCL §600.2912b(4).

The Notice must be mailed to the last known professional business address or residential address of the defendants, and proof of “the mailing constitutes prima facie[1] evidence of compliance with” the Notice requirement.  MCL §600.2912b(2).

The 182-day notice period is shortened to 91 days if all of the following conditions are present:

  1. The claimant has previously filed a 182-day notice against other health professionals or health facilities involved in the claim;
  1. The 182-day notice period has expired as to the foregoing health professionals or health facilities;
  1. The claimant has commenced an action alleging medical malpractice against one or more of the foregoing health professionals or health facilities; and
  1. The claimant did not identify, and could not reasonably have identified a health professional or health facility to which notice must be sent under the statute as a potential party to the action before filing the complaint. MCL §600.2912b(3).

The defendant is required to furnish a written response to the plaintiff within 154 days after receipt of the Notice that contains the following:

  1. The factual basis for the defense to the claim;
  1. The standard of practice or care that the defendant claims to be applicable to the action and that the defendant complied with that standard;
  1. The manner in which it is claimed by the defendant that there was compliance with the applicable standard of practice or care; and
  1. The manner in which the defendant contends that the alleged negligence of the defendant was not the proximate cause of the plaintiff’s injury or alleged damage. MCL §600.2912b(7).

In the event the defendant does not provide the written response required by Subsection (7) within the mandated 154-day period, the plaintiff may commence an action for medical malpractice upon expiration of the 154-day period.  MCL §600.2912b(8).

According to the Michigan Supreme Court, the Notice requirement “encourages settlement of a dispute in lieu of costly litigation, and rigid interpretations of MCL 6002912b do not foster or encourage the statute’s goal of advancing settlement and reducing litigation costs.”  DeCosta v. Gossage, 782 N.W.2d 734, 737 (Mich. 2010).  The Court warned that the statute “does not require dismissal with prejudice[2] because such a result is inconsistent with the statute’s stated purpose.”  Id. at 738.  In addition, “errors or defects in the [Notice] shall be disregarded as long as the ‘substantial rights of the parties’ are not affected.” [emphasis in original] Id. (quoting MCL §600.2301).

The general two-year statute of limitations for medical malpractice actions is tolled during the notice period after the date the Notice is provided in compliance with MCL §600.2912bMCL §600.5856(c) and Roberts v. Mecosta County Hospital, 684 N.W.2d 711, 715 (Mich. 2004).  “[I]t is plaintiff’s burden to establish compliance with §2912b and, in turn, to establish entitlement to application of the notice tolling provision” in MCL §600.5856.  Roberts, 684 N.W.2d at 718.  While strict compliance with the Notice statute is not required, the plaintiff must at least make a good faith effort to satisfy the Notice’s content requirements in MCL §600.2912b(4)Id. at 723.  When a plaintiff fails to make a good faith effort to meet the requirements of the Notice statute, the statute of limitations will not be tolled during the notice period.  Id.

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VI. Required Elements of a Medical Malpractice Complaint

In order to commence a medical malpractice lawsuit in a Michigan state court, the plaintiff must file an initial pleading, referred to as a complaint, with the appropriate court. MCR 2.101(B).  In general, the content, format, and procedures regarding complaints are governed by the Michigan Court Rules Chapter 2. Civil Procedure.  A complaint is one of the six authorized forms of pleading in Michigan courts.  MCR 2.110.  The complaint is a formal allegation by the plaintiff containing his or her claims for judgment by the court.

All allegations must be made in numbered paragraphs.  MCR 2.113 (E)(1).  The content of each paragraph must be limited as far as practicable to a single set of circumstances.  MCR 2.113(E)(2).Each statement of a claim for relief founded on a single transaction or occurrence or on separate transactions or occurrences must be stated in a separately numbered count.  MCR 2.113(E)(3).

MCR 2.111(A)(1) requires that each allegation of a complaint be clear, concise, and direct.  Inconsistent claims are permitted in the complaint.  That is, the plaintiff may “allege two or more statements of fact in the alternative when in doubt about which of the statements is true.”  MCR 2.111(A)(2)(a).  Also, the plaintiff may state as many separate claims as he or she has, “regardless of consistency and whether they are based on legal or equitable grounds or on both.”  MCR 2.111(A)(2)(b).

The complaint must contain a statement of fact upon which the plaintiff relies in stating the cause of action, it must also contain specific allegations sufficient to reasonably inform the defendant of the nature of the claims.  MCR 2.111(B)(1).  The principal function of the complaint is to provide notice of the nature of the claims in order to permit the defendant to take a position.  Stanke v. State Farm Mutual Automobile Insurance Company, 200 Mich App 307, 317 (1993).  Further, the complaint must allege all elements of a cause of action, including the applicable standard of care, breach thereof, nature of the injury, and proximate cause between the alleged breach and the injury.  Locke v. Pachtman, 446 Mich 216, 222 (1994).  “In medical malpractice actions, a plaintiff must allege, with reasonable definiteness and certainty, every fact necessary to constitute a cause of action.”  Weymers v. Khera, 563 N.W.2d 647, 655 (Mich. 1997).

The complaint must contain a demand for judgment for the relief that the plaintiff seeks.  MCR 2.111(B)(2).  For medical malpractice claims, the complaint may not specify an award amount sought, but the complaint should include allegations showing that the claim is within the jurisdiction of the court.  Id.  Finally, “[r]elief in the alternative or relief of several different types may be demanded.”  Id.

The complaint must be legibly printed in English.  MCR 2.113(B).  The title of the action must include the names of all the parties, with the plaintiff’s name placed first.  MCR 2.113(D)(1).  The first part of the complaint must contain a caption with the following information:

  1. the name of the court;
  1. the names of the parties or the title of the action;
  1. the case number, including a prefix of the year filed and a two-letter suffix for the case-type code from a list provided by the State Court Administrator;
  1. the identification of the pleading;
  1. the name, business address, telephone number, and state bar number of the pleading attorney;
  1. the name, address, and telephone number of a pleading party appearing without an attorney; and
  1. the name and state bar number of each other attorney who has appeared in the action. MCR 2.113(C)(1).

The caption of the complaint must also contain either (1) or (2) below as a statement of the attorney for the plaintiff or of the plaintiff if appearing without an attorney.

  1. There is no other pending or resolved civil action arising out of the transaction or occurrence alleged in the complaint.
  1. A civil action between these parties or other parties arising out of the transaction or occurrence alleged in the complaint has been previously filed in [this court] / [_____ Court], where it was given docket number _____ and was assigned to Judge _____. The action [remains] / [is no longer] pending.  MCR 2.113(C)(2).

VII. Affidavit of Merit

When commencing a medical malpractice action, the plaintiff is required to file an Affidavit of Merit along with the complaint.  MCL §600.2912d(1).  The Affidavit must be signed by a health professional whom the plaintiff’s attorney reasonably believes meets the requirements for an expert witness under MCL §600.2169 (see Section VIII in this article).  The Affidavit must certify that the health professional has reviewed the Notice of Intent and all medical records provided to him or her regarding the allegations contained in the Notice and shall contain a statement of each of the following:

  1. The applicable standard of practice or care;
  1. The health professional’s opinion that the applicable standard of practice or care was breached by the defendant;
  1. The actions that should have been taken or omitted by the defendant in order to have complied with the applicable standard of practice or care; and
  1. The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the Notice. MCL §600.2912d(1).

According to the Michigan Supreme Court, “when an affidavit is filed, it is presumed valid.”  Saffian v. Simmons, 477 Mich 8, 13 (2007).  The Court explained:

Therefore, a complaint and affidavit of merit toll the period of limitations until the validity of the affidavit is successfully challenged in ‘subsequent judicial proceedings.’  Only a successful challenge will cause the affidavit to lose its presumption of validity and cause the period of limitations to resume running.

Thus, if the defendant believes that an affidavit is deficient, the defendant must challenge the affidavit.  If that challenge is successful, the proper remedy is dismissal without prejudice.  Plaintiff would then have whatever time remains in the period of limitations within which to file a complaint accompanied by a conforming affidavit of merit.  Kirkaldy v. Rim, 734 N.W.2d 201, 203 (Mich. 2007) (internal citations omitted).

The Michigan Supreme Court held that a medical malpractice complaint that wholly omits to file the required Affidavit “is ineffective, and does not work a tolling of the applicable period of limitation.”  Scarsella v. Pollak, 607 N.W.2d 711, 715 (Mich. 2000).  The Court added that its “holding does not extend to a situation in which a court subsequently determines that a timely filed affidavit is inadequate or defective.”  Id.The Supreme Court has also held that “dismissal without prejudice would be the appropriate sanction for plaintiff’s failure to comply with” the Affidavit requirement.  Dorris v. Detroit Osteopathic Hospital, 594 N.W.2d 455, 466 (Mich. 1999).

The trial court may grant an additional 28 days to file the Affidavit upon a motion for good cause shown.  MCL §2912d(2).  Also, if the defendant fails to grant the plaintiff access to all medical records in his or her possession related to the claim as required by MCL §600.2912b(5) within 56 day after receipt of the Notice of Intent, the Affidavit may be filed up to 91 days after the complaint is filed.  MCL §2912d(3).

[1] Prima facie is Latin for “at first look” or “on its face.”  Basically, in a legal context, it means that sufficient evidence to establish a basic fact or initial burden of proof has been proffered, but it can be rebutted.

[2] Dismissing a claim with prejudice means that it is dismissed permanently, and the claim can never be brought again.

VIII. Medical Expert Witnesses

Introduction

In medical malpractice cases, expert witnesses are nearly always required.  The medical issues and related facts are generally far too complex for non-medical professionals to understand without the aid of expert medical witnesses.  As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization.  Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

Qualifying as Expert Medical Witness in Michigan

The starting point in determining whether a prospective expert medical witness is qualified to provide opinion testimony is MCL §600.2169, which sets forth the basic necessary qualifications. MCL §600.2169(1) mandates that an expert witness seeking to testify on the appropriate standard of care must be licensed as a health professional in either Michigan or another state and meet the following criteria:

  1. If the defendant is a specialist, the witness must specialize in the same specialty at the time of the alleged negligence. If the specialist is board certified, the witness must also be board certified in the same specialty.
  1. The expert must have devoted the majority of his or her professional time during the year prior to the alleged negligence in either or both of the following:
  • Active clinical practice of the same health profession as the defendant, and if defendant is a specialist, active in the same practice specialty.
  • Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as defendant, and if defendant is a specialist, in the same specialty.
  1. If the defendant is a general practitioner, the expert must have devoted the majority of his or her professional time during the year prior to the alleged negligence in either or both of the following:
  • Active clinical practice as a general practitioner.
  • Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession as defendant.

MCL §600.2169(2) requires trial courts to evaluate, at a minimum, all of the following:

  1. The educational and professional training of the expert witness;
  1. The area of specialization of the expert witness
  1. The length of time the expert witness has been engaged in the active clinical practice or instruction of the health profession or the specialty; and
  1. The relevancy of the expert witness’ testimony.

The trial court has the responsibility as the initial interpreter of the statute to determine whether a prospective expert witness is qualified to offer testimony.  Grossman v. Brown, 685 N.W.2d 198, 202 (Mich. 2004).  The party offering an expert witness must demonstrate that the witness possesses the necessary learning, knowledge, skill, or practical experience to enable him or her competently to provide the intended testimony.  Siirila v. Barrios, 398 Mich 576, 591 (1976).  Once the trial court determines that an expert witness is qualified to offer testimony, any alleged limitations in the expert’s qualifications asserted by the defendant pertain to the weight to be given to the testimony by the trier of fact, not its admissibility.  McPeak v. McPeak, 593 N.W.2d 180, 185 (Mich. Ct. App. 1999).

In determining whether an expert is qualified, the trial court has broad discretion in making its decision.  MCL §600.2169(3) expressly states that the requirements for qualification contained in the statute do not limit the court’s authority to disqualify an expert witness on other grounds.  The Michigan Supreme Court acknowledged that the trial court may disqualify an expert witness on grounds other than those found in MCL §600.2169, stating “even when a proffered expert meets the criteria contained in §2169(1), the expert is subject to further scrutiny under §2169(2), §2169(3), §2955, and MRE 702.”  Woodard v. Custer, 719 N.W.2d 842, 858 (Mich. 2006).  Additionally, abuse of discretion is the standard for review with respect to the trial court’s determination on an expert witness’ qualification to provide testimony.  Id. at 849.  The trial court abuses its discretion only when its decision is not a reasonable and principled outcome.  Maldonado v. Ford Motor Co., 476 Mich 372, 388 (2006).

Expert Witness Testimony at Affidavit of Merit Stage and Trial Stage

In Grossman, the Michigan Supreme Court clarified that in a medical malpractice action the plaintiff must obtain a medical expert witness’ opinion at two different stages of the litigation, each subject to a different standard for usage.  Grossman, 685 N.W.2d at 201.  First, at the Affidavit of Merit stage, the complaint must be accompanied by an Affidavit signed by an expert whom the plaintiff’s attorney reasonably believes meets the statutory requirements.  Second, at the trial stage, the expert must actually meet the statutory requirements.  Id.

The Court stated “while at the affidavit-of-merit stage a plaintiff’s attorney need only ‘reasonably believe’ the expert is qualified, at trial the standard is more demanding because the statute states that a witness ‘shall not give testimony’ unless the expert ‘meets the [listed] criteria….”  Id.  The rationale for the different standards is based on the fact discovery takes place after the Affidavit of Merit stage but before the trial stage.  Id. at 202.  Once discovery has taken place, the plaintiff’s attorney can “ascertain the qualifications of the defendant physician….”  Id.

Qualifying as a Specialist Expert Witness

The Michigan Supreme Court made it clear that the expert witness must match specialty and board certification as the defendant, but that does not mean the expert must match all specialties and board certifications of the defendant.  Id.at 850.  That is, if the defendant specializes in multiple specialties or holds multiple board certifications, the expert need only match the defendant with respect to the relevant standard of care or other subject matter of the testimony, not on specialties and certifications that are not the subject of the expert’s testimony.  Id.But if the defendant practices a sub-specialty within that particular specialty, then the expert must also specialize in that sub-specialty.  Id. at 851.

However, if a specialist was practicing outside his or her specialty, then the area in which the specialist was practicing at the time of the alleged malpractice is the most relevant for the case.  In Reeves v. Carson City Hospital, 274 Mich App 622 (2007), the defendant was a board-certified specialist in family medicine but was practicing outside that specialty in emergency medicine at the time of the incident giving rise to the medical malpractice claim.  The plaintiff’s expert witness was board certified in emergency medicine but not in family medicine.  The Court held that the defendant was qualified to provide opinion testimony against the defendant because at the time of the alleged malpractice the defendant was practicing emergency medicine, which was the most relevant specialty and standard of care in the case.  Id. at 628.

The statute does not define what the term ‘board certified’ means for purposes of expert witness qualification.  The Supreme Court thus provided the following definition for purposes of the statute: “we conclude that to be ‘board certified’ within the meaning of §2169(1)(a) means to have received certification from an official group of persons who direct or supervise the practice of medicine that provides evidence of one’s medical qualifications.”  Id. at 852.  As such, a certificate of special qualifications constitutes a board certificate for purposes of the statute.  Id. at 853.  According to the Court, to constitute board certification, the certificate does not have to be in one of the 24 primary medical specialties recognized by the American Board of Medical Specialties or the 18 primary specialties recognized by the American Osteopathic Association.  Id.

Admissibility of Expert Testimony About Scientific Principles and Discoveries

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries.  Simply put, courts must guard against allowing so-called junk science into evidence.  To achieve that objective, the overwhelming majority of states[1] follow one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”  Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle.  The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Scientific Principles and Discoveries in Michigan

Michigan uses the Daubert standard.  MCR 702 and Gilbert v. Daimler Chrysler Corp., 685 N.W.2d 391, 408-409 (Mich. 2004).  The proponent of the evidence has the burden of establishing both relevance and admissibility.  People v. Crawford, 458 Mich. 376, 388 (1998).

The starting point for admissibility analysis of expert witness opinion testimony regarding scientific principles and discoveries is MCL §600.2955 and MCR 702.  Scientific opinion by an otherwise qualified expert is only admissible if the trial court determines that the opinion is reliable and will assist the trier of fact. MCL §600.2955 provides a list of seven factors for courts to consider when determining admissibility.  The statute adds that a “novel methodology or form of scientific evidence may be admitted into evidence only if its proponent establishes that it has achieved general scientific acceptance among” experts in the field.  MCL §600.2955(2).  The statute also instructs that its provisions “are in addition to, and do not otherwise affect, the criteria for expert testimony provided in section 2169,”i.e., expert witness qualifications specifically for medical malpractice cases. MCL §600.2955(3).

MCR 702 provides:

If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

The Michigan Supreme Court described the trial court’s role as that of a gatekeeper to ensure that any expert testimony admitted at trial is reliable.  Gilbert, 685 N.W.2d at 408.  The trial court has a “fundamental duty of ensuring that all expert opinion testimony—regardless of whether the testimony is based on ‘novel’ science—is reliable.”  [emphasis in original] Id. at 409.  In addition, the gatekeeper role applies to all stages of the expert analysis, “not just of the data underlying expert testimony, but also of the manner in which the expert interprets and extrapolates from those data.”  Id.The Court was particularly concerned about causation, instructing that “[c]areful vetting of all aspects of expert testimony is especially important when an expert provides testimony about causation.”  Id.

IX. Comparative Negligence

Michigan is a pure comparative negligence state.  The Michigan Supreme Court first adopted the doctrine in the 1970 case Placek v. City of Sterling Heights, 405 Mich 638, 662 (1979), in which the Court announced “we now adopt the pure form of comparative negligence.”  Pure comparative fault has been codified in MCL §600.2958[2].Under the doctrine of pure comparative fault, the plaintiff can be 99% at fault and still be entitled to recover a damage award.The doctrine requires liability to be determined and allocated among the plaintiff and defendants (and non-parties to the lawsuit if applicable) in direct proportion to each person’s percentage of fault by the trier of fact.  MCL §600.2957(1).  In assessing percentages of fault, the trier of fact must consider the fault of each person, regardless of whether the person is, or could have been, named as a party to the action.  Id. However, “[a]ssessments of percentages of fault for non-parties are used only to accurately determine the fault of named parties.  If fault is assessed against a non-party, a finding of fault does not subject the non-party to liability in that action and shall not be introduced as evidence of liability in another action.”MCL §600.2957(3).

Under the pure comparative fault doctrine, the plaintiff’s own fault in contributing to his or her injury is not a bar to recovery; instead, the plaintiff’s share of fault simply reduces the recoverable amount of damages to which the plaintiff is entitled.The trial court is required to reduce the plaintiff’s damage award by the percentage of fault allocated to him or her by the trier of fact.  MCL §600.2959.

For example, if the trier of fact determines that the plaintiff is 60% at fault in contributing to his or her injuries, the plaintiff’s total damage award will be reduced by 60%.  As a result, the maximum amount the plaintiff can receive is 40% of the total monetary recovery.  Thus, if the total monetary recovery is $100,000, the plaintiff is entitled to only 40% of that amount or $40,000.  Notice that the plaintiff in this example is actually deemed to be at greater fault than the defendant or defendants.  Nevertheless, in a pure comparative fault system, that is not a bar to recovery.

Note, however, that Michigan’s version of pure comparative fault has an unusual exception.  If the plaintiff’s allocated percentage of fault is greater than the aggregate fault of all other parties, whether or not parties to the lawsuit, the plaintiff is completely barred from recovering non-economic damages.  MCL §600.2959.  The plaintiff is still entitled to recover economic damages reduced by the allocated percentage of fault attributed to the plaintiff.  Id.Accordingly, in the above example, if any of that $100,000 damage award were attributable to non-economic damages, the plaintiff’s recovery would be further reduced.

X. Limitations on Non-economic Damages

Michigan law imposes limitations on damages for non-economic loss that may be recovered in a medical malpractice case.  MCL §600.1483(1).  The statute contains two caps on non-economic damages, viz., a general cap and an increased cap applicable to specific enumerated conditions. The statute states: “In a claim for damages alleging medical malpractice by or against a person or party, the total amount of damages for non-economic loss recoverable by all plaintiffs, resulting from the medical malpractice of all defendants, shall not exceed $280,000….”  Id.

This is the general cap on recoverable non-economic damages based upon a claim of medical malpractice.  Michigan’s limitation on non-economic damages is quite restrictive.  Notice that the limit applies to all plaintiffs against all defendants on a per case basis, not per plaintiff or per defendant.

The general cap on non-economic damages is subject to statutory exceptions that, when applicable, increase the limitation amount to $500,000 (as of the provision’s effective date on April 1, 1994, but both the exceptions cap and the general cap are subject to annual adjustments, see below).  MCL §600.1483(1).  The exceptions cap on non-economic damages applies in cases where, as a result of the negligence of one or more of the defendants, any of the following conditions exist:

  • The plaintiff is hemiplegic, paraplegic, or quadriplegic resulting in a total permanent functional loss of one or more limbs cause by one or more of the following:
  • Injury to the brain.
    • Injury to the spinal cord.
      • The plaintiff has permanently impaired cognitive capacity rendering him or her incapable of making independent, responsible life decisions and permanently incapable of independently performing the activities of normal, daily living.
      • There has been permanent loss of or damage to a reproductive organ resulting in the inability to procreate. MCL §600.1483(1)(a)-(c).

For purposes of the statute, the term ‘non-economic loss’ “means damages or loss due to pain, suffering, inconvenience, physical impairment, or physical disfigurement, loss of society and companionship … loss of consortium, or other non-economic loss.”  MCL §600.1483(3).  The statute requires that damages in medical malpractice cases must be itemized between damages for economic loss and damages for non-economic loss by the trier of fact.  MCL §600.1483(2).

MCL §600.1483 does not define what constitutes economic loss.  However, the Michigan Court of Appeals has turned to the definition provided in MCL §600.2945(c) “in order to determine whether a claim for damages in a medical malpractice action should be characterized as one for economic or non-economic losses.”  Thorn v. Mercy Memorial Hospital Corporation, 281 Mich App 644, 664-665 (2008).  Whether a loss is characterized as economic or non-economic is crucial since recovery of economic damages is not subject to limitation. MCL §600.2945(c) defines economic losses as “objectively verifiable pecuniary damages such as medical expenses, rehabilitation services, custodial care, loss of wages, loss of future earnings, burial costs, loss of use of property, costs of repair or replacement of property, costs of obtaining substitute domestic services, loss of employment, or other objectively verifiable monetary losses.”

Both the general cap and the exceptions cap are subject to annual adjustments for inflation.  MCL §600.1483(4) provides that:

the state treasurer shall adjust the limitations on damages for non-economic loss set forth in subsection (1) by amounts determined by the state treasurer at the end of each calendar year to reflect the cumulative annual percentage change in the consumer price index. As used in this subsection, “consumer price index” means the most comprehensive index of consumer prices available for this state from the bureau of labor statistics of the United States department of labor.

The State of Michigan Department of Treasury published the 2017 limitation amounts for non-economic damages under MCL §600.1483 on January 25, 2017[3].  For 2017, the general limitation amount is $445,500, and the exceptions limitation amount is $795,500.  Under the statute, the State Treasurer is required to calculate the applicable limitations amounts for each year.

The parties to a medical malpractice lawsuit as well as the court are prohibited by statute from advising the jury about the limitations on non-economic damages contained in MCL §600.1483. According to MCL §600.6304(5), the “jury shall not be advised by the court or by counsel for either party of the limitations set forth in section 1483 or any other provision of section 1483.”  Since the jury is not notified of the limitations, it is free to award damages for whatever amount that it considers fair and equitable.  Jenkins v. Patel, 684 N.W.2d 346, 354 (Mich. 2004).  The trial judge is required to review the verdict to determine whether the limitation on non-economic damages applies in the case.  MCL §600.6098(1).  If necessary, the trial judge is required to reduce the award for non-economic damages in accordance with the applicable cap in MCL §600.1483.  MCL §600.6304(5).

Prior to 2004, it was an open question whether the non-economic damage caps contained in MCL §600.1483 were applicable to wrongful death actions based upon a claim of medical malpractice.  The Michigan Supreme Court answered the question in the Jenkins case.  The Court ruled: “We conclude that the medical malpractice non-economic damages cap does apply to wrongful death actions where the underlying claim is medical malpractice.”  Jenkins, 684 N.W.2d at 354-355.

XI. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases.  That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award.  If there is no recovery, then the attorney does not receive any payment as a legal fee.  Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources.  Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option.  Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive.  Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee.  Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions.  Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Michigan

Under Michigan law, contingent fee arrangements in medical malpractice actions are governed by Rule 8.121 of the Michigan Rules of Court.  It limits the “maximum allowable fee for” medical malpractice claims to one-third of the amount recovered.  Rule 8.121(B).  The one-third maximum contingent fee is calculated on “the net sum recovered after deducting from the amount recovered all disbursements properly chargeable to the enforcement of the claim or prosecution of the action.”  Rule 8.121(C)(1).

Any contingent fee in excess of the maximum fee allowable under Rule 8.121(B) “shall be deemed to be the charging of a ‘clearly excessive fee’ in violation” of Rule 1.5(a) of the Michigan Rules of Professional ConductRule 8.121(A).Of course, an attorney may enter into a contingent fee arrangement for less than the maximum allowed.  Rule 8.121(D).

Any contingent fee arrangement entered into between a client and attorney must be in writing with a copy provided to the client.  Rule 8.121(F).

XII. Apologies and Gestures of Sympathy

Forty-two states have some form of apologies or sympathetic gestures statute (commonly referred to as “I’m Sorry” laws) that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit.  This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

Michigan Governor Rick Snyder signed Public Act 21 of 2011 into law on April 19, 2011, which enacted Michigan’s “I’m Sorry” law contained in MCL §600.2155.It is designed to allow healthcare providers to speak openly with patients and their families about undesirable outcomes without fear that expressions of compassion, apology, or sentiments of a similar nature will be used against them in potential civil lawsuits.

The statute shields healthcare providers who communicate benevolent gestures by making them inadmissible as evidence of liability in an action for medical malpractice.  It reads:

A statement, writing, or action that expresses sympathy, compassion, commiseration, or a general sense of benevolence relating to the pain, suffering, or death of an individual and that is made to that individual or to the individual’s family is inadmissible as evidence of an admission of liability in an action for medical malpractice. MCL §600.2155(1).

The term ‘family’ is defined as “spouse, parent, grandparent, stepmother, stepfather, child, adopted child, grandchild, brother, sister, half brother, half sister, father-in-law, or mother-in-law.”  MCL §600.2155(3).  Notice that, among others, aunt, uncle, and cousin are not included in the statutory definition of family.

There is an important exception to the general rule shielding certain communications from being admissible as evidence.  Statements “of fault, negligence, or culpable conduct that is part of or made in addition to a statement, writing, or action” that is otherwise protected by the statute are admissible as evidence as an admission of liability in an action for medical malpractice.  MCL §600.2155(b).

XIII. Mandatory Mediation Panel

All medical malpractice actions are subject to a mandatory review before a mediation panel.  MCL §600.4903(1).  The action shall be referred to mediation by written order “not less than 91 days after the filing of the answer or answers.”  MCL §600.4903(2).  The procedures and rules governing the mediation are set forth in MCL §600.4901 to MCL §600.4923.

Within 14 days after the mediation hearing, the panel is required to make an evaluation in writing.  MCL §600.4915(1).  If all parties accept the panel’s evaluation, judgment will be entered in that amount, which shall include all fees, costs, and interest to the date of judgment.  MCL §600.4919(1).

If the panel unanimously determines that a complete action or defense is frivolous, the panel is required to notify the party of that determination.  MCL §600.4915(2).If the action goes to trial, the party advised of having a frivolous claim or defense is required to post a $5,000 bond for each party against whom the action or defense was determined to be frivolous.  Id.  If judgment is ultimately entered against the party posting bond, it shall be used to pay all reasonable costs incurred by the other parties.  Id.

[1]In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard.  For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.

[2] Note that the courts tend to use the term ‘comparative negligence’ while the statutes use the terms ‘contributory fault’ and ‘comparative fault.’  Despite the terminology used in the statutes, the substance is that of the pure comparative negligence doctrine.

[3] State of Michigan Department of Treasury. (2017). Limitation on Non-economic Damages and Product Liability Determination on Economic Damages.  Lansing, Michigan.  Nick A. Khouri, State Treasurer.

Available at: https://www.michigan.gov/documents/treasury/Notice_NoneconomicLimitation__012317_550389_7.pdf