Medical malpractice law and the associated court rules in Michigan went through drastic changes in the early 1990s. Since then, with a few minor changes here and there, things have stayed generally the same. At the forefront of the “tort reform” movement, Michigan has some very aggressive medical malpractice laws on the books, and potential plaintiffs need to understand these laws when considering bringing a medical malpractice case.
In Michigan, medical malpractice cases may be filed within two years of the physician’s act (or failure to act) from which the claim arises. Alternatively, a claim must be filed within six months of when it was discovered, or reasonably should have been discovered, if two years have passed.
All claims must be brought within six years of the act or omission giving rise to the claim, except in cases where the health care provider fraudulently concealed the malpractice or if the injury involves the claimant’s reproductive system.
Minors (those under the age of 18), as well as those deemed insane may also take advantage of certain savings provisions built into Michigan's law on medical malpractice lawsuit deadlines.
Every medical malpractice case in Michigan is initiated by filing a Notice of Intent to File Suit (NOI). The NOI must be in writing and must be served upon the prospective defendant(s) at least 182 days before the actual suit is filed. Serving the NOI pauses the statute of limitations for 182 days. However, if the NOI does not comply with all of the statutory requirements, the 182-day tolling period is void and the claim can be dismissed if it violates the statute of limitations.
Michigan law requires that medical malpractice plaintiffs submit an affidavit of merit signed by a health care professional qualified under MCL 600.2169. To qualify under the statute, the medical expert must be a licensed health care professional practicing or teaching in the same specialty as the defendant. The expert must also have the same board certifications the defendant has (if any). This prevents a family doctor from giving an expert opinion in a brain surgery case.
The affidavit of merit must set forth the applicable standard of care, the opinion that the defendant breached the standard of care, the actions the defendant should have taken to avoid breach, and the way in which the breach caused the plaintiff’s injuries. The defendant or defendants must file an affidavit of meritorious defense, signed by a qualified expert, refuting a plaintiff’s claims.
Michigan capped the maximum amount of non-economic damages available in medical malpractice claims at $280,000.00 in 1993. Since then, the cap has been adjusted for inflation and is now in excess of $440,000.00.
In cases where the plaintiff suffers from permanent paralysis (hemiplegic, paraplegic or quadriplegic) due to an injury to the brain or spinal cord, or where there is permanently impaired cognitive capacity, or where there is a permanent loss of or damage to a reproductive body part, the original cap was set at $500,000.00 and is currently in excess of $790,000.00.
There are no punitive damages in Michigan medical malpractice cases.
Liability in Michigan is a bit of a mixed bag. In general, there is an allocation of fault among both parties and non-parties, and parties found liable are liable for only their percentage of fault. The fault of non-parties may be considered when apportioning fault, and a percentage of fault may also be apportioned to the plaintiff.
In medical malpractice cases, as long as no fault is apportioned to the plaintiff, the liable defendants are on the hook for the entire verdict jointly and severally. This means that the plaintiff may seek to collect the entire verdict from one or all of the parties. If the plaintiff is apportioned some percentage of fault -- a rarity in medical malpractice cases -- the defendants are liable only for their percentage of fault, but any uncollected damages can be reapportioned among the remaining defendants according to their portion of fault after six months.
Consider this example: A plaintiff sues three doctors and secures a verdict of $100,000.00. Each doctor is deemed to be 25% at fault, and the plaintiff is deemed to be 25% at fault. The plaintiff tries to collect the entire $75,000.00 judgment from Doctor A. Doctor A only pays $25,000.00. The plaintiff can then ask the court to re-apportion the remaining $50,000.00 among the remaining defendants in accordance with their percentages of liability. So Doctors B and C could now each be liable for 25% of the remaining judgment, or $12,500.00 each.