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.

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.

Did Santa bring an extra surprise this season?  Are you carrying a bundle of joy?

Even if it’s too early to tell family and friends about your pregnancy, it’s not too early to take care of yourself.  A key part of taking care of yourself and your new little one is making sure that any medications you take during your pregnancy (prescription or over the counter) are safe and not TERATROGENIC.

TERATROGENIC means that the substance can go past the placenta and enter into your developing baby.

It is best to see your obstetrician right away and to get clear advice as to which medications are considered safe and which contain a risk.

The following are just some of the drugs that are known to cause birth defects:

• Antibiotics:  While penicillins, cephalosporins and erythormycin are considered relatively safe, tetracyclines, sulfa drugs, ciprofloxacin, and other antibiotics can cause birth defects when taken by a pregnant woman.

• Benzodiazepines: Tranquilizers, sleeping pills, and anti-anxiety drugs can cause problems in newborns including breathing, temperature regulation, and muscle problems.
• Accutane and related dermatological drugs: Accutane poses an extremely serious risk of birth defects or death. This drug should never be used by a pregnant woman under any circumstances. Soriatane is also a dermatological drug that is extremely harmful to a developing fetus, and should not be used by any woman for three years prior to conception.
• NSAIDS: Aspirin and other drugs in the same family (salicylates) can cause birth complications and birth defects when used late in pregnancy.
• Antidepressants.
  • Paxil: In 2005, the FDA warned that Paxil can double the risk of heart birth defects when used during the first trimester of pregnancy.
  • Prozac: In 2006, a major study found that Prozac also doubled the risk of delivering a child with the birth defect PPHN (Primary Pulmonary Hypertension).
  • SSRI’s (selective serotonin reuptake inhibitors) are capable of harming the fetus, particularly when taken in the 1^st trimester.  Symptoms of this harm have included irritability, agitation, nasal congestion, diarrhea and some tumors.

It is the duty of the health care professional to weigh the risks of untreated depression on the part of the mother against the dangers of the prescribed medication.

• Anti-cancer drugs: Teratogens such as aminopterin, Bulsulfan, Chlorambucil, Cyclophosphamide, Mercaptopurine, and Methotrexate can cause serious birth defects including cleft palate, underdevelopment, other physical defects and mental retardation.
• Anti-seizure medications: Anticonvulsants such as Toprimate and Valproate, as well as phenytoin, calproic acid and trimethadione.  These can cause serious birth defects including spina bifida, organ deformities, cleft palate, microcephaly and facial defects.  Pregnant mothers with epilepsy need specialized care, and may require a change in medication for the duration of the pregnancy.
• Blood-thinning drugs, like Warfarin can cause mental retardation as well as vision problems in babies.
• Certain thyroid medications
• Sex hormones (androgens, estrogens and DES) have caused damage to sexual organs.
• Blood pressure drugs.  Drugs called angiotensin-converting enzyme (ACE inhibitors) have been documented to cause problems in pregnancy.  ACE inhibitors can stunt the fetus’ growth and cause kidney problems and even death.
• Asthma medications
• Live Vaccines
• Lithium
• Thalidomide

If you are concerned that you may have been prescribed a medication that is unsafe to take during your pregnancy, feel free to contact our office for a free consultation.  We are happy to help you make such a determination.

November has been designated as “Prematurity Awareness Month,” in an effort to educate the public about the risk factors for premature birth and about preventive measures that pregnant women can take to decrease their risk of delivering prematurely.

The earlier a baby is born, the more severe his or her health problems are likely to be.  More infants die from preterm-related problems than from any other single cause.  Some premature babies require special care and spend weeks or months hospitalized in a NICU (neonatal intensive care unit).  Those who survive may face lifelong problems such as:

• Cerebral Palsy
• Intellectual Disabilities
• Breathing and Respiratory problems
• Visual problems
• Hearing loss
• Feeding and digestive problems

Even if a woman does everything “right” during pregnancy, she can still have a premature baby.  Here are some known risk factors for having a premature baby:

• Having had a previous preterm birth
• Carrying more than one baby (twins, triplets, etc.)
• Problems with the uterus or cervix
• Chronic health problems with the mother
• Cigarette smoking
• Certain infections during pregnancy

What can you do to prevent a premature birth?  The Centers for Disease Control and Prevention suggest the following to reduce the risk of premature birth:

• Quit smoking, and avoid alcohol or drugs.
• Get prenatal care as soon as you think you may be pregnant and throughout your pregnancy.
• Talk to your health care provider about how to best control high blood pressure and diabetes.
• Talk to your health care provider about maintaining a healthy diet, including 400 micrograms of folic acid daily before and during early pregnancy.
• Talk to your health care provider about your options if you have previously had a preterm birth.

Warning Signs of Preterm Labor:

In most cases, preterm labor begins unexpectedly and with no known cause.  It’s important to seek care if you think you might be having preterm labor, because your doctor may be able to help you and your baby.

The warning signs are –

• Contractions (every 10 minutes or more often)
• Change in vaginal discharge (leaking fluid or bleeding from the vagina)
• Pelvic pressure (the feeling that the baby is pushing down)
• Low, dull backache
• Cramps that feel like a menstrual period
• Abdominal cramps with or without diarrhea