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.