Michigan Medical Malpractice Litigation
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Michigan Medical Malpractice Law
Medical malpractice is a subspecialty of tort law that analyzes the professional conduct of licensed health care practitioners and facilities.
Medical malpractice actions are potentially fraught with landmines and pitfalls for the unwary.
In addition to the complexity of the medical issues that must be learned for a given case, there are procedural and substantive protections afforded to health care professionals that you must be familiar with.
Introduction to Michigan Medical Malpractice Law
The principal plaintiff in a health care malpractice action (or med mal) is the patient injured by the alleged negligent acts of the physician, hospital, or other health care provider. In health care malpractice cases, the duty arises from the provider-patient relationship. See Rogers v Horvath, 65 Mich App 644, 646–647, 237 NW2d 595 (1975).
If the injured party dies, an estate may bring an action under the Wrongful Death Act, MCL 600.2922. The spouse of an injured plaintiff may bring a derivative action for the loss of consortium. In addition, a minor child whose parent was negligently injured by another may file a loss of consortium action. Berger v Weber, 411 Mich 1, 303 NW2d 424 (1981).
The classic health care malpractice case (or med mal) is an action against a health care provider whose negligence in the care and treatment of his or her patient was a proximate cause of the patient’s injuries. A defendant’s liability in those circumstances arises directly from his or her deviation from the standard of care. Malik v William Beaumont Hosp, 168 Mich App 159, 168–169, 423 NW2d 920 (1988).
Hospitals and medical facilities may also be held directly liable for their failure to supervise and monitor the quality of health care that they provide. This corporate liability is predicated on the notion that a hospital is not just a facility renting space for a collection of doctors and nurses; rather, it is a corporation that executes its acts through rules and regulations. A hospital owes a general duty to its patients to provide for their protection and to ensure that they are receiving quality health care. See Paulen v Shinnick, 291 Mich 288, 289 NW 162 (1939).
A hospital may therefore be held directly liable for the negligence of a staff physician or a nurse, by its own negligence in allowing that physician to retain staff privileges, by its failure to formulate and administer prudent nursing care, by its failure to provide and supervise adequate nursing staff, or by its failure to adopt adequate rules and regulations governing the care rendered to its patients. See Davis v O’Brien, 152 Mich App 495, 505, 393 NW2d 914 (1986); Ferguson v Gonyaw, 64 Mich App 685, 236 NW2d 543 (1975); Kakligian v Henry Ford Hosp, 48 Mich App 325, 210 NW2d 463 (1973).
A hospital may be held vicariously liable for the negligent acts of its agents or ostensible agents, including nurses, aides, physician employees, residents, interns, and auxiliary personnel employed by the hospital to render care and treatment to its patients. McClaine v Alger, 150 Mich App 306, 311–313, 388 NW2d 349 (1986).
However, a hospital is generally not vicariously liable for the negligence of a physician who only uses the hospital’s facilities to provide treatment to his or her patients. Grewe v Mount Clemens Gen Hosp, 404 Mich 240, 250, 273 NW2d 429 (1978).
Physicians may be held vicariously liable under either the “captain of the ship” doctrine or the “borrowed servant” doctrine for the acts of residents, nurses, and other providers acting under their direction. This vicarious liability is predicated on the amount of actual supervision or control the physician exerts over the assisting individual or whether that individual was acting pursuant to the physician’s direct orders. In some cases, the control that the physician exercises over a hospital employee may be sufficient to support the conclusion that the hospital employee became the agent of the physician. See Orozco v Henry Ford Hosp, 408 Mich 248, 253, 290 NW2d 363 (1980); Frazier v Hurd, 6 Mich App 317, 320, 149 NW2d 226 (1967), aff’d, 380 Mich 291, 157 NW2d 249 (1968).
The seminal Michigan Supreme Court opinion outlining the distinction between ordinary negligence and medical malpractice is Bryant v Oakpointe Villa Nursing Centre, Inc, 471 Mich 411, 684 NW2d 864 (2004). In Bryant, plaintiff’s decedent died from positional asphyxia after she became wedged between her mattress and the bed rails. The court noted two key characteristics that distinguish a medical malpractice action from a claim of ordinary negligence:
“[M]edical malpractice can occur only ‘within the course of a professional relationship.’”
“[C]laims of medical malpractice necessarily ‘raise questions involving medical judgment.’”
Id. at 422. For a claim to sound in medical malpractice, both prongs of this analysis must be satisfied. Id.
The Bryant court did not issue a broad-sweeping decree regarding which acts constitute medical malpractice and those constituting ordinary negligence. To the contrary, the majority held that an individual analysis of each claim against the facts of that particular case was required:
The fact that an employee of a licensed health care facility was engaging in medical care at the time the alleged negligence occurred means that the plaintiff’s claim may possibly sound in medical malpractice; it does not mean that the plaintiff’s claim certainly sounds in medical malpractice.
… [I]njuries incurred … may or may not implicate professional judgment. The court must examine the particular factual setting of the plaintiff’s claim … .
… That is not to say, however, that all cases concerning failure to train health care employees in the proper monitoring of patients are claims that sound in medical malpractice. The pertinent question remains whether the alleged facts raise questions of medical judgment or questions that are within the common knowledge and experience of the jury. Id. at 421, 427 (emphasis in original).
Michigan Medical Malpractice Statute of Limitations Law
A two-year statute of limitations applies to actions for health care malpractice (commonly called med mal law). MCL 600.5838a; see also MCL 600.5805(5). This period is measured from the date of the act or omission that is the basis for the malpractice action. MCL 600.5838a. There are special rules providing exceptions for persons under disabilities, MCL 600.5851–.5855; minors, MCL 600.5851(7), (8); and plaintiffs who later discover or should have discovered the claim, MCL 600.5838a(2). However, there is a six-year statute of repose beyond which claims may not be brought at all, except in very narrowly defined circumstances. Id.
An exception to the two-year statute of limitations is the statutory malpractice discovery rule. A plaintiff may start a lawsuit after the two-year period has expired if the suit is filed within six months of when the plaintiff discovered or should have discovered the malpractice. Id.
A two-prong test has developed to determine when a malpractice claim is discovered. The courts look to
(1) when the defendant’s act or omission becomes known (when the plaintiff discovers the claim) and
(2) when the plaintiff has reason to believe the medical treatment was either improper or performed in an improper manner (when a reasonable person would have discovered the claim). Levinson v Trotsky, 199 Mich App 110, 500 NW2d 762 (1993).
The statute places the burden of proof on the plaintiff to demonstrate 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.” MCL 600.5838a(2).
The second prong of the discovery rule test is based on a reasonable person analysis, that is, when a reasonable person should have discovered the claim. Levinson.
The court in Levinson “decline[d] to make plaintiff’s subjective beliefs part and parcel of [the] objective standard … because doing so would result in a subjective standard and not an objective ‘reasonable person’ standard.” 199 Mich App at 113. MCL 600.5838a(2) substantially limits the discovery rule with a six-year statute of repose for bringing a medical malpractice claim. The six-year statute of repose applies only to limit the application of the discovery rule. Casey v Henry Ford Health Sys, 235 Mich App 449, 597 NW2d 840 (1999).
Under MCL 600.5851(7), if a medical malpractice (or med mal) claim accrues before a child’s 8th birthday, the claim must be brought on or before the child’s 10th birthday or within the period of limitation set forth in MCL 600.5838a (the standard medical malpractice statute of limitations), whichever is later. Pursuant to the plain language of MCL 600.5851(7), there are three alternative periods of limitation for a medical malpractice claim that accrues before a child reaches his or her 8th birthday:
(1) before the child’s 10th birthday,
(2) two years after the claim accrued, or
(3) six months after the child discovered or should have discovered the claim. Vanslembrouck v Halperin, 277 Mich App 558, 747 NW2d 311, appeal granted, 481 Mich 918, 750 NW2d 591 (2008), leave to appeal denied, 483 Mich 965, 763 NW2d 919 (2009).
Deciding an issue of first impression, the court of appeals in Vanslembrouck held that the 10th birthday provision of MCL 600.5851(7) is a distinct period of limitation rather than a saving provision. Because the provision is a statute of limitations, it is subject to the notice tolling provision in MCL 600.5856(c).
Under MCL 600.5851(8), if a claim involves injury to the child’s reproductive system and the claim accrues before that child’s 13th birthday, the child has until his or her 15th birthday or the period set forth in MCL 600.5838a(2), whichever is later, to file a claim. Claims accruing after a child’s 8th birthday or 13th birthday (if an injury to the reproductive system is involved) are subject to the period of limitation set forth in MCL 600.5838a.
MCL 600.5852 is an important saving provision that operates to toll the statute of limitations in survival-type actions brought under the Wrongful Death Act, MCL 600.2922. Hardy v Maxheimer, 429 Mich 422, 439–441, 416 NW2d 299 (1987). The saving provision applies in cases in which
(1) the malpractice action accrued or was discovered before death and
(2) the person died before the limitation period had run or within 30 days after the period of limitation had run. MCL 600.5852; see also Hardy, 429 Mich at 440; Hawkins v Regional Med Labs, PC, 415 Mich 420, 437, 329 NW2d 729 (1982).
Because MCL 600.5852 is a saving statute and not a statute of limitations, it is only applied to extend the period of limitations and preserve a cause of action when the period of limitations for the underlying claim expired before the personal representative filed suit. When the statute of limitations has not expired, MCL 600.5852 does not apply. Lipman v William Beaumont Hosp, 256 Mich App 483, 664 NW2d 245 (2003).
Michigan Medical Malpractice Presuit Notice Requirements
A plaintiff who intends to bring a health care malpractice (or med mal) action must give written notice of his or her intent to file a claim 182 days before commencing the action. MCL 600.2912b(1). This period may be shortened in some situations specified in MCL 600.2912b. The contents of the notice must follow the requirements of MCL 600.2912b(4).
The minimum notice requirements essentially require a plaintiff to set forth all of the elements of his or her cause of action. The written notice must include the facts providing the basis for the claim, the standard of care or practice alleged to be applicable, and the manner in which that standard was breached by the noticed parties. The notice must also set forth what actions the claimant alleges should have been taken to conform to the standard of care and the manner in which the deviation from the standard of care proximately caused the claimant’s injuries. Furthermore, the claimant must include in the written notice the names of other individuals given notice in relation to this claim. See MCL 600.2912b(4).
Pursuant to MCL 600.5856(c), the statute of limitations will be tolled for a period equal to the notice period if the statute of limitations lapses during the notice period. If the claim would not be barred by the statute of limitations or repose during the applicable notice period, there is no tolling of the statute of limitations.
Michigan Medical Malpractice Expert Witness Law
Under MCL 600.2169, if the defendant is board certified, the expert must also be board certified in the same speciality. To qualify as an expert, a witness must have been a specialist in the same speciality as the defendant at the time of the occurrence at issue and must have devoted more than 50 percent of his or her professional time to the relevant specialty. Id.
At trial, expert testimony is generally required to establish the standard of care and the defendant’s breach of that standard. Lince v Monson, 363 Mich 135, 108 NW2d 845 (1961). The statutory requirements for the expert to qualify as an expert witness and for admissibility of the testimony itself must be adhered to carefully, see MCL 600.2169, .2955, because in most cases, the plaintiff will not be able to prove his or her case without this testimony.
In addition to the qualifications stated in MCL 600.2169 that must be met for expert medical testimony and the requirement of MRE 702 that an expert witness must be qualified by knowledge, skill, experience, training, or education, the legislature has imposed additional requirements on expert testimony. MCL 600.2955(1), (3). The legislature has written foundational evidentiary rules by listing seven factors the court “shall consider” before admitting expert opinions.
The factors, as codfied in MCL 600.2955(1), are
whether the opinion and its basis have been subjected to scientific testing and replication;
whether the opinion and its basis have been subjected to peer review publication;
whether the opinion and its basis are consistent with generally accepted standards governing the application and interpretation of a methodology or technique;
the known or potential error rate of the opinion and its basis;
the degree to which the relevant expert community (individuals who are knowledgeable in the field of study and are gainfully employed applying that knowledge) accepts the opinion and its basis;
whether the basis for the opinion is reliable and whether experts in that field would rely on the same basis to reach the type of opinion being proffered; and
whether experts outside the context of litigation rely on the opinion and its methodology.
Michigan Medical Malpractice Special Pleading Requirements
When the plaintiff files his or her complaint, it must be accompanied by an affidavit of merit that is signed by an expert who is reasonably believed to meet statutorily specified qualifications. MCL 600.2169, .2912d(1). An affidavit of merit must be filed with the complaint in a medical malpractice claim. MCL 600.2912d; MCR 2.112(L).
The affidavit must be signed by a health care professional who is reasonably believed to qualify as an expert and who certifies that he or she reviewed the notice and the provided records. Further, the affidavit must include a statement setting forth each of the following:
(a) The applicable standard of practice or care.
(b) The health professional’s opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice.
(c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care.
(d) 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 (emphasis added). MCR 2.112(L) provides that unless the trial court allows a later challenge for good cause, challenges to notices of intent must be made by motion no later than the defendant’s first responsive pleading. Challenges to affidavits of merit and affidavits of meritorious defense must also be made by motion within 63 days of service of the allegedly defective affidavit. MCR 2.118(D) provides that amended affidavits in medical malpractice cases relate back to the date the original was filed.
A malpractice complaint filed without an affidavit of merit does not toll the statute of limitations, and the filing of an untimely affidavit does not relate back to the filing of the complaint under MCL 600.2912d(2). Scarsella v Pollak, 461 Mich 547, 607 NW2d 711 (2000); Dorris v Detroit Osteopathic Hosp Corp, 460 Mich 26, 594 NW2d 455 (1999).
Michigan Medical Malpractice Law on Affidavits of Meritorious Defense
As with a plaintiff’s affidavit of merit, MCL 600.2912e requires a defendant to file an answer to the complaint within 21 days after the plaintiff’s filing of the affidavit of merit. Amendments effective March 28, 2013, specify that within 91 days of the plaintiff’s serving of the affidavit, the defendant must file its affidavit of meritorious defense. However, if the plaintiff does not allow access to the medical records as required in MCL 600.2912b(5), the defendant may file the affidavit of meritorious defense 91 days after he or she files the answer to the complaint. See also MCR 2.112(L).
A defendant may, instead of answering the complaint, file an affidavit “certifying” that he or she was not involved, either directly or indirectly, in the alleged malpractice. MCL 600.2912c(1). If the affidavit is unopposed, the court must dismiss the affiant from the case without prejudice. Id.; see also MCR 2.116(B)(1).
Michigan Medical Malpractice Cap on Damages
MCL 600.1483(1) places a two-tier cap on noneconomic damages in a malpractice action. There is a general cap for noneconomic damages, which is essentially $280,000 plus an annual adjustment to reflect the consumer price index ($445,500 in 2017).
This general cap represents “the total amount of damages for noneconomic loss recoverable by all plaintiffs, resulting from the medical malpractice of all defendants.” Id. (emphasis added). Based on the language of this provision, it appears that the legislature has made the cap cumulative. In effect, the cap applies to the verdict as a whole and not to the verdict for each plaintiff against each defendant. Thus practitioners should use their professional judgment to evaluate whether separate actions should be filed versus permissive joinder of claims.
The exceptions to the general cap have been substantially limited and no longer include exceptions for death, intentional torts, foreign objects wrongfully left in the body, the wrongful removal of limbs or organs, or the prevention of discovery of a claim as a result of the health care professional’s fraud. Only three limited exceptions to the general cap remain:
The plaintiff, as a result of the negligence of one or more defendants, suffers an injury to the brain or spinal cord rendering the plaintiff a hemiplegic, paraplegic, or quadriplegic and resulting in the functional loss of one or more limbs.
As a result of the negligence of one or more defendants, the plaintiff suffers permanent impairment of cognitive capacity that both prohibits the plaintiff from making independent, reasonable life decisions and permanently renders him or her incapable of performing the activities of normal daily life.
The plaintiff suffers a permanent loss or damage to a reproductive organ that renders him or her unable to procreate.
Claims that fall within these exceptions to the general cap are subject to the high cap. Pursuant to MCL 600.1483(1), the cap for noneconomic damages for these claims is $500,000, adjusted yearly ($795,500 in 2017)
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