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.

The Pregnancy Discrimination Act was passed in 1978. Even though the so-called PDA has been around for over 35 years, it has not ended the practice of workplace discrimination around the issues of pregnancy.  

Here are the essential things to know about what employers of pregnant employees can and cannot do:

1. An employee cannot be fired because she’s pregnant. Sometimes, an employer will fire a pregnant employee, implying that they are “looking out for the interests of the mother or the fetus”. This is, in fact, illegal. Decisions about what is “good for” the mother and the baby are to be made by the mother and her health care team, not her bosses.
2. A pregnant employee can continue to work for as long as she and her health care provider believe it is safe. An employer is not allowed to force the pregnant employee to take maternity leave prior to childbirth.
3. An employer cannot refuse to hire a woman because she is pregnant or even has the potential to be pregnant. Employers want to have a stable work force and can be scared off of hiring a pregnant woman, assuming that she will want time off in the future. Nevertheless, the practice is illegal.
4. Accommodation for breastfeeding mothers must be made. One of the components of the Affordable Care Act is that lactating mothers have the right to pump their breast milk in a private place (and by the way, a bathroom doesn’t count). The only catch: if she works in a place with less than 50 employees, her employer is not obligated if the employer insists that providing accommodations is a hardship.
5. A pregnant employee may ask for some accommodations, like being able to sit during a shift. This can include changing certain tasks for a short term, similar to what would occur if someone had another short term medical impairment like a back or neck injury or even stitches. Before an employee wants accommodations, they should protect themselves and get a doctor’s certification of recommended accommodations.

Pregnancy discrimination complaints are common. It is important to note that pregnancy discrimination cases are judged  in favor of the complainant  more often than other types of discrimination cases, like gender, race and sexual orientation.

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