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.

Michigan’s auto no-fault reform bill went into effect last July and the consequences are quickly being felt among accident victims. After the latest statutory reforms from the revised law introduced a new medical fee schedule, the causal effect has been a reduction of how much insurance companies are required to reimburse medical providers for certain services.

Meanwhile, advocates for survivors of catastrophic auto crashes have been saying for months that the changes would cut off their access to medical services they need to survive.

Now, slightly more than two months after the updated medical fee schedules have gone into effect, many survivors have been speaking out about how they are, in many cases, struggling to access even minimal care.

“I was struck by a pickup truck backing out of a driveway… the hitch went through my right-lower extremity, and… severely broke the leg in multiple places,” Paul Becker told a Michigan Fox TV affiliate, who was seriously injured in a July 2018 crash. “I think I’ve had nine surgeries in total, and still trying to recover from the mobility aspect.”

Fox reported Becker hadn’t had any major issues getting insurance to cover the medical services he’s needed during his recovery, that is until this past July.

“Eight o’clock in the evening, they left a message stating that, at that time, anything … from now on will no longer be covered, and it was just out of the blue, boom, you’re no longer covered for anything,” Becker explained.

“I feel like with this last six weeks without any physical therapy, I’ve literally gone backwards.”

Under the new law, any medical service not already covered under federal Medicare law, which includes in-home caregivers and transportation to medical services, will now only be reimbursed by insurance companies at 55 percent of what they were back in 2019. The law also caps the number of hours family members can provide care to just 56 hours a week, according to legal analysis.

Tom Judd, president of the Michigan Brain Injury Providers Council, said in a statement about the legal revisions, “There’s been a lot of delays, and denials, and payments on a whole, and not just the providers that we’ve been talking about for the past few months, in terms of residential and attendant care providers, but outpatient therapists are getting denied or slashed in reimbursement.”

Judd added the changes have thrown Michigan’s post-acute medical care industry into turmoil.

“Hurdles that they did not have to jump through before July 1, they’re having to jump through now, and they’re not getting any payment…. and so, the crisis is kind of expanding to places that we didn’t really think that they would be going.”

According to the Michigan Brain Injury Provider Council, more than 700 patients have already lost access to medical care, since the changes took effect in July.

At least 41 Michigan-based care companies have had to either close their doors completely or discharge patients receiving benefits via no-fault auto insurance. The MBIPC says this has already put at least 1,500 healthcare workers out of a job.

Under the new law, insurance companies still have to provide lifetime medical coverage for those who had or have unlimited personal injury protection (PIP) policies. But advocates say the changes are squeezing qualified medical professionals out of Michigan’s post-acute care industry, making quality providers scarce.

If you have been hurt in an auto accident and are concerned your coverage will not provide adequate protection for your medical needs, contact the law office of Turner and Turner for a free consultation to ensure your rights are adequately protected.

Severe trauma called Traumatic Brain Injury (TBI)  or closed head injury occurs when our brain is damaged due to high impact with the skull.

Every year, at least 1.7 million traumatic brain injuries occur in the United States. Most of these are mild and include concussions. But many of these injuries are severe.

Important facts to know about brain injury:

• Who is most likely to suffer a TBI? Children ages 0 to 4 years, adolescents aged 15-19 years old and adults aged 65 and older.
• Who is most likely to die from TBI? Adults 75 and older.

What causes traumatic brain injuries?

• Falls, including slip and falls are a major source of traumatic brain injuries. Older adults are the most vulnerable to this situation whether they live in their own home or in a senior living arrangement. Falls are also common in hospitals and rehabilitation centers.
• Automobile accidents, particularly when seat belts are not used. Adolescents in the back seat are the most likely victims of this scenario.
• Sports (both contact and non-contact). The biggest contributors to concussion are soccer and football. Football involves collision. Soccer typically doesn’t but the participants wear no protective headgear.
• Medical malpractice occurs when a patient does not receive adequate treatment and supervision in a medical setting, causing severe damage to the brain.

Victims of trauma to the head or brain may be eligible to seek monetary compensation for their damages if the accident was the result of negligence of another party.  This monetary compensation can help pay for medical expenses, loss of income or earning potential, and help to compensate for your pain and suffering.

However, I should remind you that winter sports and recreation activities have some inherent risks. Here are a few major ways to keep yourself safe this winter:

Sledding:

Who doesn’t have a picture of sledding as a child? It’s magical and it’s relatively simple. All you need is a hill and some sort of sled. Consider these safety issues:

• Sled on snow and not ice.
• Make sure there is plenty of snow without bald patches and that the snow doesn’t cover up dangerous scrub or playground equipment beneath it.
• Try to use “tried and true” hills. Lots of neighborhoods have them from the hill at the park that’s designated the sled hill to officially sanctioned sledding locations.
• Make sure the hill has a wide flat area at the bottom that will allow you to glide to a stop.
• Avoid hills that abut parking lots or streets or hills that empty out to lakes, benches or other obstacles.
• Sled during the day when you can see the hazards.

On the slopes:

Skiing or snowboarding is absolutely exhilarating and terrific exercise. There are opportunities in Michigan and elsewhere to enjoy the powder. But wherever you are, be sure to follow these guidelines:

• Take a lesson if you have never skied or snowboarded before or if it has been a long time. Even better, do several pre-ski workouts in the weeks before your ski outing. You need to strengthen your quadriceps particularly.
• Dress to excess. Never underestimate how cold you can be. It’s better to have lots of layers and disrobe than to be inadequately protected. Be sure your neck is covered, your head is covered, your hands are adequately covered, and you have multiple layers of socks. Wear thermal underwear, too!
• Have appropriate equipment, including skis and snowboards that are not too long, boots that fit correctly, and bindings that are well-adjusted by the professionals at the ski shop.
• Always wear a helmet. This is, to use a very bad pun, a no-brainer, meaning your failure to use it, could cause you to have no…well you get it.
• Wear goggles and sunscreen. The reflection of the sun on the slopes will cause sunburn and the sun’s rays are stronger at higher altitudes. Goggles also protect your eyes from debris and tree branches.
• Beginning snowboarders may also benefit from wearing rigid wrist guards, which are designed to protect your hands and wrists when you fall and you will fall.
• Never ski or snowboard alone.
• Only tackle the trails that you can handle. Don’t go on a black diamond trail to impress somebody. A likely impression is your face planted on a switchback turn.

Snowmobiling:

Michigan snowmobilers are lucky. There are 6,200 miles of specially marked snowmobile trails and plenty of back country adventures, too. Be sure to combine adventure with safety by:

• Dress for really cold weather. The cold temperature will be exacerbated by the speed at which you are traveling. So wear thermal underwear and socks, multiple layers, gloves or mittens and snow-proof outer layers.
• Helmets and goggles are essential for protection of your head and your eyes.
• Do not snowmobile over frozen lakes. You cannot accurately gauge the thickness of the ice and how much weight each section of the ice can tolerate.
• Be sure that your snowmobile is in compliance with local law. Michigan Department of Natural Resources will be ticketing snowmobile users whose machines are deemed too loud.

But remember: those swimming pools, whether private or public, are potential sources of harm for us and our loved ones. Drowning deaths are the second leading cause of death for children ages 1-4.

So, whether you have a pool or you take your kids, your grandkids or any other children to a pool, keep these safety tips in mind:

• Pool owners need to make sure their pool is inaccessible for the most part. You must have a secure fence at least four feet high surrounding the pool with intact gates and latches. In the off-season, the pool should be covered. Consider installing a surface alarm so you are alerted if somebody breaches the water when you are not there.
• Make sure the pool you are swimming in is well-maintained. Are drains safely maintained? Is the water clear? If your eyes sting from being in the water, the water is not hygienic for you or your children.
• Stay in arm’s reach of your children at all times. This may mean being in the pool the entire time with younger children.
• Insist that younger children wear a U.S. Coast Guard approved life jacket while in the pool, especially if there is no official lifeguard.
• Designate a lifeguard. If you own a pool and invite people over, either hire a lifeguard or decide ahead of time who will be the lifeguard. This person must remain sober, aware and focused on watching the water. You can take turns if you need to. The designated lifeguard must know CPR and first aid. If you are the guest of someone with a pool and nobody is acting as the lifeguard,  you must step into that role.
• If you are supervising a child and don’t know how to swim, then you cannot watch them alone.
• Make sure everybody knows the pool rules, including no running, no diving and staying away from drain covers.
• Ensure that there is a pool first aid kit visible and stocked with rescue equipment and scissors (for tangled hair).
• Keep a well-charged phone nearby.
• Enroll your children in swimming lessons. Make sure all adults who care for them are strong swimmers. But be aware that just because a child has taken swimming lessons, he or she must still never swim alone.

We want you to enjoy the Michigan summer to its fullest. By playing it safe, you can have fun in the sun.

It appears that a growing number of Michigan families and sports fans are all on the same page. Reportedly,  University of Michigan Athletic Director Dave Brandon lost his job (he resigned under pressure), not just because of the poor play of the Wolverines on the football field, but also because of the university’s mishandling of the clear on-field concussion of quarterback Shane Morris during a recent game.

Concussions are not just a football phenomenon. Ironically, girls are actually more susceptible to dangerous concussions than boys are, particularly in sports that involve both sexes.

For girls, the sports with the highest concussion rates are soccer, ice hockey, softball, lacrosse and basketball, as well as cheerleading. Of all of these, soccer has the highest number of American teen players and is therefore overrepresented in concussion statistics.

Girls’ soccer concussion facts:

• Girls, particularly younger girls, often fail to show symptoms of concussion and take a longer time to heal.
• Cognitive impairments from girls’ concussions typically last from 10 to 21 days. These impairments cause difficulty concentrating, headaches and memory issues.
• Heading the ball causes many girls’ concussions. Some advocates are encouraging children under 14 not to head the ball.
• Player collisions contribute to the other concussion incidents.
• Some leagues have required special helmets and headbands for soccer, but unless an entire league requires it, there can be peer pressure not to wear these protective devices.
• Second impact syndrome (double impact concussions) are particularly dangerous. These occur when there has been a previous (often undiagnosed) concussion and the child returns to the playing field too quickly and suffers a second brain injury before the first injury has fully healed.
• It is possible that moving to a larger soccer ball at age 12 or 13 has inadvertently exposed girls to more concussions. There is a small but growing movement to keep the smaller ball for longer in girls’ leagues. There is also a new Danish ball called the “Eir” ball that is softer and lighter.

We have been watching how the National Football League handled its negotiations with the Players’ Association regarding long-term effects of sustained blows to the head. The players for professional sports  had the advantage of advocates within their players’ unions to try to find remedies to prevent future brain injuries and to compensate injured players.

On the other hand, collegiate athletes are not professionals and not unionized. Yet these young athletes are still suffering from concussion-related brain injuries. As a result the National Collegiate Athletic Association has agreed to pay $70 million for the purpose of testing and diagnosing a number of student athletes who have reported sports-related brain injuries. The payout still is pending approval by a United States District judge. The reported deal is being criticized by many who are concerned that it doesn’t pay for treatment and has a very small per case payout.

Another component of the agreement is aimed at preventing serious injuries from concussions. Each NCAA team is required to evaluate the players prior to the seasons and to ensure that all players who appear to have suffered a concussion be barred from future play until cleared by a physician.

The attorneys representing some of the NCAA players maintain that a variety of student athletes (not just football players, by the way) have suffered brain injuries with long-term adverse consequences, including an inability to stay in school, learning issues, fine motor and gross motor skill problems, depression and anxiety. Keep in mind that the number of college athletes far outnumbers the number of NFL players. There are 20,000 former NFL players but there are 4 million former college athletes, nearly a third of whom were involved in contact sports.

The case revealed that the NCAA had been sued multiple times for concussion related brain injuries suffered by football players, wrestlers, lacrosse players and soccer players.  In addition, there have been 30,000 concussions suffered from NCAA players between 2004 and 2009.

Brain injuries can have a variety of symptoms, some of which are not immediately obvious. These symptoms include:

• Loss of consciousness
• Seizures
• Severe headaches or dizziness
• Nausea or vomiting
• Memory loss or cognitive problems
• Drowsiness, fatigue or insomnia
• Balance problems
• Partial or full paralysis
• Problems with walking and use of large muscles
• Fine motor skill impairment (inability to grasp, write or impaired use of small muscles)
• Reading issues (inability to process the words)
• Speech problems (problems understanding speech, problems coming up with words, inability to understand humor or irony)
• Slurred speech
• Visual perception problems, blurriness, poor depth perception
• Issues with hearing, including hearing loss and ringing in the ears
• Loss of sense of smell and/or taste
• Sensitivity to bright light or loud sounds
• Moodiness and irritability
• Depression
• Impulsiveness
• Aggressive behavior
• Confusion or forgetfulness
• Emotional outbursts and feelings of frustration
• Disorganization and an inability to stay focused, easily distracted
• Disturbances of normal sleep patterns, insomnia
• Bowel and bladder incontinence
• Loss of appetite or changes in appetite