Michigan Medical Malpractice Summary

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Much of Michigan law on medical malpractice is codified at Mich. Comp. Laws Ann. §§ 600.2912 through 600.2912h (West 2000). Subjects covered there include the elements of a malpractice action, a compulsory procedure for notice and discovery prior to filing suit, and affidavits of merit. The legislature made major changes to the laws of medical malpractice effective April 1, 1994, so the information below will not always apply to cases arising before that date.

Statutes of Limitations

A medical malpractice action may be brought within two years after the act or omission that forms the basis for the claim. Alternatively, it may be brought within six months after the claimant discovers or should have discovered the existence of the claim, so long as it is brought within six years after the act or omission. Mich. Comp. Laws Ann. §§ 600.5805(5) and 600.5838a (West 2000). The six-year statute of repose is constitutional. Sills v. Oakland General Hospital, 220 Mich. App. 303, 559 N.W.2d 348 (1996), cert. denied, 456 Mich. 908, 572 N.W.2d 661 (1997). It does not apply if the health care provider’s fraud prevents discovery or the injury involves the claimant’s reproductive system. Mich. Comp. Laws Ann. § 600.5838a (West 2000).

Minors have the benefit of the foregoing rules. In addition, a minor’s action may be brought any time before the minor’s tenth birthday (or fifteenth birthday for injury to the reproductive system). Id. If a claimant is insane when his medical malpractice action accrues, he may bring an action up to one year after the disability is removed. Mich. Comp. Laws Ann. § 600.5851 (West 2000).

An action for wrongful death accrues on the date of the wrongful act, not the date of death, and is governed by the statute of limitations that would have applied had the decedent merely been injured. Hawkins v. Regional Medical Laboratories, 415 Mich. 420, 329 N.W.2d 729 (1982). However, the wrongful death “saving statute” can extend either the two-year or six-month period. If the injured person dies before the statute runs (or within a 30-day grace period thereafter), his personal representative may sue within two years after being appointed so long as the suit is commenced within three years after the statute expires. Mich. Comp. Laws Ann. § 600.5852 (West 2000); Miller v. Mercy Memorial Hospital, 466 Mich. 196, 644 N.W.2d 730 (2002).

A person intending to file a medical malpractice action must first give written notice to the prospective defendants at least 182 days before the action is commenced. (This period can be reduced under some circumstances.) Mich. Comp. Laws Ann. § 600.2912b (West 2000). Giving notice tolls the running of the statute of limitations for 182 days. Mich. Comp. Laws Ann. § 600.5856(d) (West 2000); Omelenchuk v. City of Warren, 461 Mich. 567, 609 N.W.2d 177 (2000). However, time continues to run unless the claimant complies with all the provisions of the notice statute, which calls for detailed information. Roberts v. Mecosta County General Hospital, 466 Mich. 57, 642 N.W.2d 663 (2002). There are circumstances under which a new party may be added to a lawsuit even after the statute of limitations has expired, so long as the lawsuit was filed in a timely manner against some defendants. Mich. Comp. Laws Ann. § 600.2957(2) (West 2000).

Contributory or Comparative Negligence

Michigan recognizes the doctrine of pure comparative fault, with one exception. Under this doctrine, a claimant’s negligence does not bar recovery, but it causes damages to be reduced by the claimant’s percentage of fault. The exception is that if the claimant’s fault is greater than the aggregate fault of all other persons, whether or not they are parties, then he cannot recover any non-economic damages. Mich. Comp. Laws Ann. §§ 600.2958 and 600.2959 (West 2000). The foregoing sections apply only to cases filed on or after March 28, 1996, but the doctrine of contributory negligence had already been replaced judicially by pure comparative negligence, Placek v. City of Sterling Heights, 405 Mich. 638, 275 N.W.2d 511 (1979).

Joint and Several Liability

In an action for personal injury or wrongful death, the liability of each person is allocated in direct proportion to the person’s percentage of fault. In assessing each party’s percentage of fault, the trier of fact must consider the fault of persons who are not parties, including those who have settled. Mich. Comp. Laws Ann. §§ 600.2957(1) and 600.6304(West 2000). If the claimant in a medical malpractice action is without fault, the defendants are jointly and severally liable. Mich. Comp. Laws Ann. § 600.6304(6) (West 2000). If the claimant has some degree of fault, which is unusual in malpractice cases, the defendants are severally liable only. However, upon a motion made within six months of the judgment, the court will reallocate any uncollectible amount among the other defendants according to their respective percentages of fault. Id.

Contribution

Michigan affords joint tortfeasors who pay more than their share of a common liability a right of contribution. Mich. Comp. Laws Ann. § 600.2925a (West 2000). A tortfeasor who satisfies all or part of a judgment for which he is jointly liable is entitled to contribution only if the alleged contributee was made a party to the action and a reasonable effort was made to notify him of the commencement of the action. Id. A tortfeasor who enters into a settlement with the claimant is entitled to bring an action for contribution when the contributee’s liability was extinguished by the settlement, a reasonable effort was made to notify the contributee of the pendency of the settlement negotiations, and the contributee was given a reasonable opportunity to participate in the settlement negotiations. Id. Contribution is allocated on the basis of relative fault. Mich. Comp. Laws Ann. § 600.2925b (West 2000). Contribution between two parties to an action may be enforced by motion, but contribution may also be sought in a separate action brought within one year after a final judgment or settlement payment. Mich. Comp. Laws Ann. § 600.2925c (West 2000).

Vicarious Liability

Under the doctrine of ostensible agency, as recognized by Michigan courts, a hospital may be found liable for the acts of a physician who is not actually its agent or employee. The critical factor in determining whether ostensible agency exists is whether the patient reasonably looked to the hospital for treatment or merely viewed it as the site for treatment by his physician. Grewe v. Mt. Clemens General Hospital, 404 Mich. 240, 273 N.W.2d 429 (1978); Setterington v. Pontiac General Hospital, 223 Mich. App. 594, 568 N.W.2d 93 (1997). Ostensible agency does not arise merely because a person goes to the hospital for medical care; there must be some action or representation by the hospital to lead the patient to reasonably believe an agency in fact existed. Sasseen v. Community Hospital Foundation, 159 Mich. App. 231, 406 N.W.2d 193 (1986).

Expert Testimony

An expert witness in a medical malpractice case must be a licensed health care professional practicing or teaching in the same specialty as the defendant for whom or against whom he testifies, and must have any board certifications that the defendant has. Mich. Comp. Laws Ann. § 600.2169 (West 2000). This statute is constitutional and does not infringe the Michigan Supreme Court’s exclusive authority to establish rules of evidence. McDougall v. Schanz, 461 Mich. 15, 597 N.W. 148 (1999).

A complaint alleging malpractice must be accompanied by an affidavit of merit, signed by a health care professional qualified under § 600.2169, setting forth (a) the applicable standard of care, (b) the opinion that the defendant breached the applicable standard of care, (c) the actions that should have been taken to avoid a breach of the applicable standard of care, and (d) the manner in which the breach was the proximate cause of plaintiff’s injury. Mich. Comp. Laws Ann. § 600.2912d (West 2000). A complaint that lacks this affidavit is insufficient to prevent the running of the statute of limitations. Scarsella v. Pollak, 461 Mich. 547, 607 N.W.2d 711 (2000). The defendant’s answer must be accompanied by a similar affidavit of meritorious defense. Mich. Comp. Laws Ann. § 600.2912e (West 2000).

In all personal injury and wrongful death actions filed on or after March 28, 1996, an expert’s scientific opinion can be admitted only if the court finds that it is reliable and will assist the trier of fact. This is in addition to the court’s duty to rule on a malpractice expert’s qualifications. The criteria the court is to apply favor opinions based on scientific testing, using generally accepted methodologies for which error rates are understood, that are subject to peer review, and that are generally accepted by other scientists, especially outside of the context of litigation. Mich. Comp. Laws Ann. § 600.2955 (West 2000).

Damage Caps

In a medical malpractice action, there is a limit on the amount recoverable for non-economic damages, including pain and suffering, inconvenience, physical impairment, and physical disfigurement. The maximum for all plaintiffs, resulting from the negligence of all defendants, was set at $280,000 in 1993, except in instances of paralysis due to brain or spinal cord injury, impairment of cognitive capacity, or loss of reproductive ability, in which case the limit was $500,000. Mich. Comp. Laws Ann. § 600.1483 (West 1996). These amounts increase annually with the cost of living, Id., and are $349,700 and $624,500 in 2002. Any jury award in excess of these amounts must be reduced by the court. Mich. Comp. Laws Ann. § 600.6304(5) (West 2000).

The current version of § 600.1483 only applies to causes of action arising on or after April 1, 1994. Tobin v. Providence Memorial Hospital, 244 Mich. App. 626, 624 N.W.2d 548 (2001). The version in effect prior to that date had major exceptions to the cap, including death or loss of a vital bodily function, and the latter exception was interpreted broadly. E.g. Lewis v. Krogol, 229 Mich. App. 483, 582 N.W.2d 524 (1998), cert. denied, 460 Mich. 851, 598 N.W.2d 632 (1999). There are no published cases in Michigan ruling on the constitutionality of either version. The current statute makes no specific reference to wrongful death, and there are not yet any published cases deciding whether the cap applies to death resulting from medical malpractice.

Statutory Cap on Attorneys’ Fees

By statute, the compensation of attorneys is left to the express or implied agreement of the parties, subject to court rule. Mich. Comp. Laws Ann. § 600.919 (West 1996). Contingency fees in personal injury and wrongful death cases are limited by rule to one third of the amount recovered. Mich. Ct. R. 8.121.

Periodic Payments

Michigan has a statute that describes certain circumstances under which a personal injury judgment for future non-economic and future non-medical economic damages exceeding $250,000 must be satisfied by the purchase of an annuity contract. Mich. Comp. Laws Ann. § 600.6307 (West 2000). This is not required if the claimant is 60 years of age or older at the time of judgment. Mich. Comp. Laws Ann. § 600.6311 (West 2000). It is worth noting that there are no reported cases referring to § 600.6307, which suggests that this statute is seldom used.

Under Michigan law, juries do not simply award personal injury damages as a lump sum, but must separate them into categories. This includes determining future damages on a per year basis and deciding over what period of time they will accrue. Mich. Comp. Laws Ann. § 600.6305 (West 2000). The judge then reduces future damages to present value. Mich. Comp. Laws Ann. § 600.6306 (West 2000). This calculation must be performed using simple interest at five percent, rather than using compound interest. Nation v. W.D.E. Electric Company, 454 Mich. 489, 563 N.W.2d 233 (1997). There is an anomaly in requiring damages calculated by the jury on a periodic basis to be reduced to a lump sum using simple interest at a prescribed rate under § 600.6306, then potentially converted back to periodic payments by purchase of an annuity under § 600.6307, presumably at current commercial, compound rates of interest. Periodic payments calculated that way are likely to be far different from those determined by the jury.

Collateral Source Rule

In a personal injury action whereby the claimant seeks to recover economic losses, evidence to establish that the expense or loss was paid or is payable in whole or in part by a collateral source is admissible in court after a verdict for the claimant but before judgment is entered. Mich. Comp. Laws Ann. § 600.6303 (West 2000). The court will reduce the judgment by the amount paid or payable from the collateral source less premiums paid by the claimant, his family, or his employer for the collateral source benefits. Collateral source benefits include medical and disability insurance benefits, employee benefits, social security, worker’s compensation, and Medicare, but they do not include any benefits for which the payor has a lien against the recovery. Id.

Pre-Judgment Interest

The payment of pre-judgment interest is mandatory for all money judgments entered in civil actions. Everett v. Nickola, 234 Mich. App. 632, 599 N.W.2d 732 (1999). Pre-judgment interest accrues from the time the claimant files his action, except on future damages (those awarded for loss that will be incurred after the trial). Mich. Comp. Laws Ann. § 600.6013 (West Supp. 2002). If the claimant makes a bona fide offer of settlement that is rejected by the defendant, the claimant, if successful at trial, is entitled to receive an additional two percent pre-judgment interest from the date of the offer. However, if a bona fide settlement offer is made by the defendant prior to trial, pre-judgment interest shall not be allowed beyond the date the offer is rejected by the plaintiff. Id. In medical malpractice cases, the date from which interest accrues can also be adjusted to punish either side for failing to produce documents as required by certain pre-filing procedures. Id. The rate of interest is based on the five-year United States Treasury note rate plus one percent. Id.

Patient Compensation Funds and Physician Insurance

Michigan does not have a patient compensation fund or a general program of state-sponsored liability insurance for physicians.

Immunities

Michigan has largely waived sovereign immunity for negligent medical care. Under the current law, there is no immunity for a governmental agency or its agents and employees with respect to providing medical care or treatment, except in a hospital owned or operated by the department of community health or the department of corrections. Mich. Comp. Laws Ann. § 691.1407(4) (West Supp. 2002). Governmental agency is defined to include the state and its political subdivisions, including municipal corporations. Mich. Comp. Laws Ann. § 691.1401 (West Supp. 2002). Until 2000, § 691.1407(4) was somewhat narrower, waiving sovereign immunity only for a governmental agency, its agents, and its employees with respect to the ownership or operation of a hospital or county medical care facility. This created a possible loophole for doctors employed by the state but practicing in a private hospital. See Vargo v. Sauer, 457 Mich. 49, 576 N.W.2d 656 (1998). The amended law makes it clear that these have no immunity.

Arbitration

All actions alleging medical malpractice are subject to mandatory review before a mediation panel. Mich. Comp. Laws Ann. § 600.4903 (West 2000). Within fourteen days after the hearing, the mediation panel submits a written evaluation to each party. Mich. Comp. Laws Ann. § 600.4915 (West 2000). The panel’s evaluation must include a finding on the applicable standard of care. Id. Each party has 28 days to object to the panel’s evaluation and proceed to trial. Mich. Comp. Laws Ann. § 600.4917 (West 2000). A party that rejects the panel’s evaluation and proceeds to trial must pay the opposing party’s actual costs, unless the verdict is more favorable to the rejecting party than the mediation evaluation. Mich. Comp. Laws Ann. § 600.4921 (West 2000).

The parties to a medical malpractice action may agree to binding arbitration if the total damages claimed, including interest and costs, are less than $75,000. Mich. Comp. Laws Ann. § 600.2912g (West 2000). The parties may stipulate to a higher value. Id.

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Revision Date: February 6, 1998