Michigan Malpractice Laws – The Basics You Should Know

If you sustained an injury at the hands of a medical practitioner, whether through negligence or otherwise, you may be considering what legal options are available and whether your claim has merit. This type of claim is commonly referred to as medical malpractice.

The Deadline: Statute of Limitations

A medical malpractice lawsuit filing deadline, also known as a “statute of limitations,” is the law establishing a time limit on the right to bring a civil lawsuit to court. Under Michigan law, the statute of limitations [Michigan Compiled Statutes section 600.5805(8)] for filing a medical malpractice lawsuit must occur within 24 months of a health care provider’s action (or failure to act) giving rise to the claim.

Since it may take more than two years before malpractice issues present themselves, a carve-out extension [Michigan Compiled Statutes section 600.5838a(2)] states a medical malpractice claim must be filed within six months of when the patient’s harm was discovered, or reasonably should have been discovered, if more than two years have passed.

The carve-out is not unlimited though, as a superseding statute says all Michigan medical malpractice claims must be brought within six years of the act (or failure to act) giving rise to the claim, regardless of the discovery date. The one exception to this is where the health care provider intentionally concealed the malpractice (fraudulently), or injury that involves permanent damage to your reproductive system.

Minors, age 18 and under, as well as victims deemed “legally incompetent” at the time of the injury may have additional recourse since there are specific provisions built into state law medical malpractice statues. Your attorney can evaluate whether these are applicable.

Notice of Intent: Starting the Clock and “Expert” Requirements

Medical malpractice cases are initiated through a court filing called a “Notice of Intent to File Suit” (NOI). A Notice of Intent must be in writing and must be served upon every health care provider who will be named in the lawsuit, at least 182 days before the lawsuit itself is filed. (Serving the NOI pauses the statute of limitations for 182 days.)

State law also requires medical malpractice plaintiffs (you and your attorney) to submit an affidavit of merit, signed by a health care professional qualified under state law. Essentially, you need an individual having the expertise to validate your claim in a statement.

The medical expert must be a licensed health care professional practicing or teaching in the same specialty as the defendant(s). The expert must also have the same board certifications the defendant has (if any). For example, a general practitioner would not be qualified under this statute to offer an “expert” opinion in a medical malpractice case brought against an oncologist (cancer specialist).

Awards: “Economic” vs. “Non-Economic” Damages

Michigan Tort reforms included placing a cap on the maximum amount of “non-economic damages” available in medical malpractice claims. The cap was an effort to reign in exorbitant rewards for ostensibly minor injuries. The cap applies to the amount of compensation you can receive for “pain and suffering,” and other losses not easily quantified. The non-economic cap, which follows a yearly adjustment for inflation, is currently in excess of $470,000.

However, this cap does not apply to “economic” damages, which may include compensation for past and future medical treatment, lost income, and the capacity to earn income in the future.

In cases where the plaintiff suffered a permanent paralysis (hemiplegic, paraplegic or quadriplegic) due to a brain or spinal cord injury, or where there is permanently impaired cognitive capacity or permanent loss of (or damage to) a reproductive body part, the current cap is in excess of $840,000.

Liability: Who’s “At Fault” Matters

In Michigan, as long as the plaintiff bears no portion of fault, each health care provider whose negligence contributed to the plaintiff’s harm is on the financial hook for the entire verdict, jointly and severally.

In simple terms, this means you or your loved one may collect the entire judgment awarded from just one of the health care providers, a select few, or from all named parties. If you (the plaintiff) are found to bear some portion of responsibility, (referred to as an apportioned percentage of fault; a rarity in medical malpractice cases) then the defendants are liable only for their own percentage of fault. However, any uncollected damages can be reapportioned among the remaining defendants, according to their portion of fault, after six months.

Yes, it’s complicated, but that is why the first step in seeking damages is turning to an attorney you can trust, who knows the law, and has a record of obtaining the largest judgments allowed under state law: Turner and Turner is one of Michigan’s most well respected personal injury firms.

Call Turner and Turner at (248) 355-1727 for a free, no-obligation consultation to discuss the specifics of your case; learn whether your claim has merit; and, what compensation you are potentially owed.

Medical malpractice is always tragic; however, birth injuries are some of the most tragic cases because it’s a young life being irreparably affected as a result of someone else’s negligence. According to the American Medical Association, approximately seven in 1,000 births result in injury during labor and delivery.

Turner and Turner believes passionately in helping the families of these young victims pursue compensation for the injuries suffered during labor and delivery. These injuries are long-lasting, severe, and most tragically, avoidable.

If you’re a Michigan resident and your child suffered an injury at birth, you should speak with our birth injury lawyers immediately. Please call Turner and Turner today at (248) 355-1727 for a free consultation.

Who Can Be Held Liable for A Birth Injury?

Depending on the nature of the injury and the staff attending the birth, parties that may be held liable for birth injury include:

• Doctors and physicians
• Midwives
• Anesthesiologists
• Nurses
• Support Staff

In some cases, the company that owns or operates the hospital where the injury occurred may also be held liable. The parties at fault are case-specific and will be established while we are building your claim. We are prepared to hold every person who played a role in your child’s injury to full account.

Examples of Common Birth Injuries

Cerebral Palsy

Cerebral palsy is an umbrella for a collection of syndromes and symptoms in a baby or child stemming from hypoxic brain injury (lack of oxygen) during birth. A child suffering from cerebral palsy may have cognitive and/or physical abnormalities as a result of a lack of oxygen to the brain during childbirth.

Cerebral palsy is sometimes totally crippling, keeping a child unable to walk, talk or care for themselves. Milder forms of cerebral palsy may present as minor lack of muscular control and coordination. There is much hope for improvement with proper therapy and intervention. Children with cerebral palsy affecting their gait have been known to improve markedly as to essentially recover from the injury altogether.

Early evaluation and intervention are important. Dedicated parents and knowledgeable health care professionals can do a lot to help a child with cerebral palsy cope, even overcome the malady, in many cases. Securing the financial resources necessary to pursue your child’s greatest possible improvement is one objective of a birth injury claim when health care professionals were negligent during labor or delivery.

Erb’s Palsy

Erb’s Palsy is among one of the most common birth injuries our lawyers see. This condition can leave your child with a lifetime of decreased mobility or, in the most tragic of circumstances, paralysis.

Our birth injury lawyers understand the physical pain and emotional trauma of Erb’s Palsy, and the medical expenses that result from the treatment of this condition. We’re committed to fighting for you and your child.

Erb’s Palsy is a paralytic condition that results from an unsustainable stretching or straining of the brachial plexus. Your brachial plexus is a nerve cluster that runs from your lower neck through your shoulder and into your arm.

These nerves regulate much of the movement of the arm, which makes it an exceptionally important part of your body. The brachial plexus can be damaged in a number of ways, but the most common cause of Erb’s Palsy is trauma at birth.

It’s not unusual for an infant to require some deft maneuvering by attending physicians during the birth process to remove the fetus from the birth canal; a lot can happen to make it difficult for a baby to be birthed in the usual head-first fashion. This work isn’t easy, but it’s sometimes necessary.

However, doctors must be careful when delivering a baby in this way, as too much straining or stretching can damage and even sever the brachial plexus. This can reduce your child’s range of motion and even leave the arm paralyzed.

Obviously, this is a long-term, life-long condition, and your child will always bear the consequences. As such, you have a right to speak with our birth injury lawyers and pursue justice and compensation. We’ll be happy to answer all of your questions and advise you on how best to move forward.

Contact Turner and Turner today and understand your rights, and hold those whose malpractice has caused injury to your baby. These cases require lawyers with a great deal of medical and legal knowledge. Our attorneys will work with you to address your claim and handle it with great compassion.

Unfortunately, far too many injuries occur during childbirth and many of them could have been prevented.

Today, we are going to discuss one of the most common injuries to babies: Brachial Palsy, which is sometimes known as Erb’s Palsy. Brachial Palsy tends to refer to an affected shoulder, whereas Erb’s Palsy affects the upper and lower arm. Another variety of this condition is Krumpke Paralysis, which involves the hand and often a droopy eyelid on the other side of the body.

Brachial Palsy occurs when the brachial plexus (the network of nerves near the neck that connects to all of the nerves of the arm) is injured. It is most common when there is difficulty delivering the baby’s shoulder, called shoulder dystocia.

What are the results of Brachial Palsy?

• Palsy means weakness; Brachial Palsy causes a weakness in the arm, preventing normal movement.
• The baby often loses the ability to flex and rotate the arm, temporarily or permanently.
• The baby may not be able to move the shoulder, but may still be able to move the fingers or even lower arm.
• Loss of feeling in the arm, shoulder or fingers.
• There may be swelling and bruising around the brachial nerves.
• Torn nerves could result in permanent nerve damage.
• Partial paralysis can also occur in the most severe cases.

What causes Brachial Palsy?

In nearly every case, the baby’s neck is stretched during a delivery, causing damage to the brachial plexus. These deliveries typically include the following components:

• Breech birth (where the baby is coming out anything but head-first)
• Prolonged or complicated labor
• A particularly large baby
• Difficulty delivering the shoulder after the head has already emerged
• Extended time in the birth canal, requiring the baby to be removed with force

Brachial Palsy often is the result of medical malpractice, as a timely decision to deliver via Caesarean section typically prevents the damages of these complicating factors.

Brachial Palsy is diagnosed by the pediatrician. If your child is born with complications and birth injuries, including Brachial Palsy, you can expect to incur added expenses for treatment and therapy, possibly even surgery. Brachial Palsy requires daily physical therapy for as little as two weeks but for up to two years or even longer. Contact our office so we can help recover these costs and obtain the justice you and your child deserve.

But the reality can be radically different.

For thousands of pregnant women, their pregnancy includes pain and even addiction to prescription painkillers.

Many women who suffer from chronic or acute pain conditions find that pregnancy (planned or unplanned) is even more difficult on them. Their bones ache more, they may suffer from more headaches and the added weight gain can wreak havoc on their already compromised bodies. Stress, anxiety and depression can also add to physical and psychological distress.

Many women become pregnant and already have an addiction to pain medication. Other women develop their addiction during pregnancy.

A new study published in the New England Journal of Medicine states that overuse of prescription pain medications, particularly opioids, is landing newborns in intensive care in record numbers, perhaps as many as 15,000 newborns last year.

The drugs that are causing the newborns to be ill are not illegal drugs, but prescribed painkillers. Sometimes mothers are getting their pain medications from their obstetricians; sometimes the pills are being prescribed by pain treatment clinics and doctors.

The problem is that the drugs have not been proven safe for pregnant women to take. In fact, when mothers take these pain pills, their babies can be born addicted and then suffer through withdrawal, a condition called “Neonatal abstinence syndrome”. One Neonatal intensive care unit reported that 20% of their infants were in the unit on any given day due to neonatal abstinence syndrome.

The takeaway: Pregnant women should not have to suffer with pain. BUT, opioid pain medications have been implicated in newborn illness and complications.

A competent medical practitioner will know about these increased risks for Cerebral Palsy and will act accordingly to limit damages to the developing baby:

• Premature birth
• Low birth weight
• Blood clotting problems
• Fetal development issues
• Rh compatibility between the mother and the baby
• Placental development issues
• Viral Infection of the mother during pregnancy, especially with rubella (German measles)
• Bacterial infection of the mother during pregnancy
• Cephalopelvic disproportion (the baby appears to be too large for the mother’s pelvis, requiring medical intervention for a safe delivery)
• Prolonged loss of oxygen during the pregnancy or birth, or severe jaundice following the birth

Childbirth is complicated and any of the above conditions require health care professionals to use good judgment and make appropriate decisions based on accurate monitoring of the mother and baby as well as clear communication among all of the medical professions.

Early signs of Cerebral Palsy to look for, beginning at three months of age can include:

• Problems with sucking
• Excessive drooling or problems with swallowing
• Weak and floppy upper body
• Stiff upper body
• Weak cries
• Constant shrill crying
• Favoring one side of the body (only turning head one way, or later when crawling, only using one leg or one arm)
• Vision and hearing issues

Cerebral Palsy is not immediately obvious at birth or even in the infancy years. Often, Cerebral Palsy becomes more obvious when children become more mobile and parents and caregivers notice issues with sitting up, crawling and walking. Just because there is a delayed diagnosis of Cerebral Palsy does not mean that you cannot sue for damages if the Cerebral Palsy was caused by the negligence of someone else.

Signs and symptoms of Cerebral Palsy most often appear during infancy or preschool years. In general, cerebral palsy causes impaired movement associated with exaggerated reflexes, floppiness or rigidity of the limbs and trunk, abnormal posture, involuntary movements, unsteadiness of walking, or some combination of these.

The long term effects of cerebral palsy on functional abilities vary greatly. Some people are able to walk while others aren’t able to walk. Some people show normal to near normal intellectual function, but others may have intellectual disabilities. Epilepsy, blindness or deafness also may be present.