Michigan Medical Malpractice Laws

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 in Michigan 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;

2. The applicable standard of care;

3. Breach of that standard of care by the defendant;

4. Injury; and

5. 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;

2. It must be caused by an agency or instrumentality within the exclusive control of the defendant;

3. 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;

2. The applicable standard of practice or care alleged by the claimant;

3. The manner in which it is claimed that the applicable standard of practice or care was breached by the health professional or health facility;

4. The alleged action that should have been taken to achieve compliance with the alleged standard of practice or care;

5. 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

6. 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;

2. The 182-day notice period has expired as to the foregoing health professionals or health facilities;

3. The claimant has commenced an action alleging medical malpractice against one or more of the foregoing health professionals or health facilities; and

4. 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;

2. The standard of practice or care that the defendant claims to be applicable to the action and that the defendant complied with that standard;

3. The manner in which it is claimed by the defendant that there was compliance with the applicable standard of practice or care; and

4. 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 §600.2912b.  MCL §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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