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.

IF YOU’VE BEEN involved in an accident you should absolutely consider hiring a personal injury attorney; naturally, many victims can feel intimidated or nervous about visiting a lawyer’s office for the first time.

However, there is no need to worry. Your attorney is your strongest advocate and best chance at recovering compensation due to your injuries.

Expect the Meeting to be Fairly Short

Your case is important and it’s important to your lawyer, too. Most initial consultations last about one hour. While that may not seem like enough time, an experienced lawyer knows what questions to ask to make that hour efficient and productive.

Expect Questions – Lots of Questions

In your consultation meeting, your attorney will ask you a number of questions; basic “who-, what-, when-type” questions. Specifically, in a personal injury case, a lawyer will also want to know the details of the accident. Other pertinent information needed includes some specifics about your insurance policy, injuries, and financial losses. Not to be forgotten is one of the biggest impacts of an accident: how the injury affected you emotionally. Takeaway: expect questions about your physical, mental, and financial health.

While it may seem unsettling giving personal information to a person you’ve just met, set aside any worry. First, Michigan ethic rules require all attorneys – even those you may not ultimately engage — to maintain the “attorney-client” privilege. The attorney-client privilege, with very specific exceptions, prevents members of the Michigan State Bar from discussing your case or its details with anybody. Takeaway: don’t hold back because the specifics matter; a licensed attorney will keep everything confidential.

Most importantly, your potential attorney will be unable to properly evaluate your case unless you provide a true and complete story. Holding back information, or changing a fact that seems minor, might cause your attorney to provide bad information. A good attorney will give you an honest evaluation, but no attorney can do this without all the facts.

Expect to Be Asked for Documents and Other Proof

Not only will you be asked many questions, but your attorney will likely request any proof you have or can get access to (see list of examples below). Before calling for an attorney consultation, or visiting the office, make sure you have these items at the ready.

Examples Some things that lawyers often ask for include:

• Communications from insurance companies
• A list of witnesses
• Messages from witnesses
• Pictures of the accident scene
• Pictures showing injuries to you or others
• Pictures showing property damage
• Medical records
• Medical bills
• Police reports
• Records of missed work
• Records of lost wages
• Records of normal wages (e.g. paystubs, W2, receipts)

While not a complete list, it gives you a rough idea of items you’ll need to gather in order to support your claim.

“Loose Lips Sink Ships” (Expect to Be Asked Who You’ve Spoken To)

While the statements you make to your attorney are confidential, things you may have said to others are not. You might have said something about the accident that might hurt your recovery without even knowing it. Your attorney may or may not be able to undo potential damage, but your attorney needs to know what was said and to whom in order to evaluate whether comments made could adversely affect your claim.

Expect an Evaluation and Explanation

Toward the end of your first meeting with a personal injury attorney, the lawyer should be able to tell you the pros and cons of your case. (Note: lawyers cannot, nor should, promise certain outcomes; they can only tell you what they expect, based on past experiences.) The lawyer may offer to take your case on the spot. However, you are under no obligation to agree; you have the right to both visit other attorneys. Takeaway: take time to evaluate the consultation before making a final decision.

Similarly, while some attorneys agree to take cases during a consultation, others may want to take a little time to decide. Note: If the lawyer chooses not to take your case, it is not your fault; there might be many reasons such as conflicts of interest or an inability to devote the time necessary to be the best advocate you deserve. Takeaway: Feel free to visit another office and get another opinion.

Expect to Talk About Money

You can expect the attorney to talk about money, including fees. The attorney should explain – in clear language – how the billing process works. The attorney should explain their hourly rate, charges for items such as investigations, ordering records, or even making copies. Note: Most personal injury attorneys work on a contingent fee basis, which means they receive a portion of any amount you recover after the lawsuit. (However, even in this arrangement, some attorneys still charge clients for certain costs.) Be prepared to ask the attorney specific questions about billing practices.

Be Prepared to Sign Documents

If you decide to engage your attorney after consultation, be prepared to sign documents. Signing a retainer or representation agreement will make the attorney your “official” legal representative in your case. Your lawyer may also ask you to sign releases allowing them to access insurance information, medical records, and other items.

Hopefully, this article has given you some insight answered about what to expect at your consultation visit to a personal injury attorney.

If you have more questions or need to speak to an experienced personal injury attorney, contact the Law Offices of Turner & Turner. Founding member Buzz Turner has more than 30 years of experience as an advocate for clients injured in vehicle-associated accidents, medical malpractice, and other personal injury claims.

Call Turner Law today for your free consultation at (248) 248-355-1727, email Turner Law or visit the Firm’s website.

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.

Writing down the details after an accident is more accurate than relying on your memory. After any kind of accident that could prompt you to file a personal injury claim, it’s crucial to do everything you can to protect your right to fair compensation for your losses.

One of the best first steps you can take is to write down everything you can remember about your accident, including details of your injuries and their effects on your daily life.

These notes can be useful later, when you put together a demand letter for the insurance company, or when you decide to file a personal injury lawsuit. Having notes to remind you of the details of what happened, and what you went through, is more reliable than counting on your memory.

Get into the habit of taking notes on anything you think might possibly affect your case, and carry it through the entire personal injury claim process. Whenever you remember something you had not thought of before — write it down — and put it with your other notes.

Here are some specific things about which you should make notes:

Describe How the Accident Happened

As soon as your head is clear, jot down everything you can remember about how the accident happened, beginning with what you were doing and where you were going, the people you were with, the time, and the weather.

Include every detail of what you saw and heard and felt—twists, blows, and shocks to your body immediately before, during, and right after the accident. Also include anything you remember hearing anyone—a person involved in the accident or a witness—say about the accident.

Describe Your Injuries and Their Effects on You

In the first days following your accident, make daily notes of all pains and discomfort your injuries cause. You may suffer pain, discomfort, anxiety, loss of sleep, or other problems that are not as visible or serious as another injury, but for which you should demand additional compensation.

If you don’t make a specific note of injuries immediately, you may not remember exactly what to include in your demand for settlement weeks or months later. Also, taking notes will make it easier for you later to describe to an insurance company how much and what kind of pain and discomfort you were in.

In addition, writing down your different injuries may help your doctor diagnose you. For example, a relatively small bump on the head or crick in the neck may not seem worth mentioning, but it might help both the doctor and the insurance adjuster understand why your bad back pain developed several weeks after the accident.

Also, by telling the doctor or other medical provider about all of your injuries, those injuries become part of your medical records, which will provide evidence later that such injuries were caused by the accident.

Describe Your Economic Losses and Other Effects of the Accident

You may be entitled to compensation for economic loss, missed special events, as well as for pain and suffering, but you will need good documentation. Begin making notes immediately after the accident about anything you have lost because of the accident and your injuries: work hours, job opportunities, meetings, classes, events, family or social gatherings, vacation, or anything else which would have benefited you or which you would have enjoyed but been unable to do because of the accident.

Summarize Conversations with Insurers, Witnesses, and Others

Make written notes of the date, time, people involved, and content of every conversation you have about your accident or your claim. In-person or telephone conversations worth noting may include those with any witness, adjuster, or other insurance representatives, or with medical personnel.

If you have been in an accident, and need help determining whether you may have a claim, contact the attorneys at Turner and Turner; with more than 30 years of experience advocating for the rights of accident victims, our attorneys will help you receive the compensation you deserve.

Call for a free consultation today at (248) 355-1727.

Last week, we detailed the categories that most cases of nursing home abuse and neglect fall into.  Today, we want to give you some information about what you can do to help protect your loved ones from abuse and neglect.

1. Don’t make your visits predictable.  Visit frequently, and at different times on different days.
2. Don’t be afraid to ask questions about care.
3. Check for bedsores, unexplained bruises and sensitivity to pain.
4. Note the cleanliness of the residents and the facility.
5. Check for weight loss and/or dehydration
6. Keep a small journal for notes after visits.
7. Take your camera.  On each visit, heave your photo taken with your loved one, and date it.
8. Report any suspected abuse.

If, indeed, you do suspect abuse taking place in a nursing home or similar care facility, you may have different avenues  of legal recourse.  Contact Turner & Turner for a free consultation to discuss all of your legal options.

The Office of the Attorney General in Michigan has identified four categories that criminal abuse and neglect generally fall into:

1.  Harmful Neglect: A resident of a nursing home or residential health care facility may be suffering from harmful neglect if they experience:

• Suspicious or questionable injuries or death;
• Unexplained substantial weight loss or severe dehydration;
• Painful bedsores 

2.  Assault or battery is committed if an employee of a nursing home or residential care facility threatens or strikes a resident or uses unauthorized physical or chemical restraints

3.  Criminal sexual conduct occurs when an employee of a residential healthcare facility or nursing home engages in unlawful sexual conduct with a patient.

4.  Embezzlement or theft of a resident’s funds occurs when a nursing home or residential health care facility employee wrongfully removes funds from a resident’s account, improperly obtains a financial “loan” or “gift” from a resident, or uses personal information illegally to obtain credit cards, etc., resulting in identity theft.

Next week: Which facilities are subject
to investigation & ways to protect your
loved ones from abuse & neglect.

THE ISSUE:

The Voting Rights Act of 1965 was passed, at least in part, to diminish the ability of state governments to kill, threaten or intimidate those who were trying to ensure that black citizens would be able to vote.  One aspect of the Voting Rights Act called for mandatory “preclearance” of state voting regulations on the part of the federal government, meaning that, until this recent SCOTUS decision, the U.S. Justice Department (or a federal court) had to determine whether the voter ID laws passed in Mississippi in 2011 and 2012 diminished the voting strength of minorities.

THE RULING:

On June 25, 2013, the Supreme Court of the United States ruled that there was no need for federal preclearance, and, therefore, Mississippi can go forward with allowing the precondition of making voters show a government issued photo ID before being allowed to vote.

The majority  of the Court held that part of  Section 4 of the Voting Rights Act, originally passed in 1965 and most recently updated by Congress in 1975, was unconstitutional. Section 4 listed which states must receive clearance from the Justice Department or a federal court in Washington before they made changes to voting procedures.

“Our country has changed,” Chief Justice John G. Roberts Jr. wrote for the majority. “While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

In her scathing dissent, Justice Ruth Bader Ginsburg wrote that “Congress approached the 2006 reauthorization of the VRA with great care and seriousness. The same cannot be said of the Court’s opinion today.  The Court makes no genuine attempt to engage with the massive legislative record that Congress assembled. Instead, it relies on increases in voter registration and turnout as if that were the whole story.”

HOW THIS AFFECTS AMERICANS:

It is presumed that the June 2014 federal primaries will be the first time that voters in Mississippi, under the new law, will be required to show photo ID at the polls.  How this ruling will affect voters in other states remains to be seen.  Because of this ruling, other changes to voting regulations could take place without federal pre-clearance.

You have probably been reading and hearing much about recent Supreme Court decisions that involve the rights of same-sex couples as they pertain to marriage and federal worker benefits, such as health care, dental benefits, social security benefits, etc.

THE ISSUE:
The first decision by SCOTUS has to do with the Defense of Marriage Act, or DOMA, as the law is popularly referred to.  DOMA is a law that was enacted in 1996, which defined marriage as “only a legal union between one man and one woman,” and defined the term “spouse” as referring “only to a person of the opposite sex who is a husband or a wife.”  Such a definition has prevented the legally married spouse of a same-sex couple (married in one of the 13 states which allows same-sex marriage), to claim benefits as the spouse of a federal worker.  For example, until just two weeks ago, if a female postal worker in Vermont were married to another woman (which is legal in Vermont), she would not have been allowed to extend her health insurance benefits to her spouse.  Had the same postal worker have been married to a man, she would have been able to extend those benefits to him.

THE RULING:
On June 26, 2013, the Supreme Court of the United states ruled a key section of DOMA to be unconstitutional.

HOW THIS AFFECTS AMERICANS:
In a memo issued last Wednesday, July 3, 2013, the US Office of Personnel Management declared that now, in light of the fact that the Supreme Court overturned Section 3 of DOMA, all federal workers, even if they live in states that have banned same-sex marriage (such as Virginia, Ohio or Mississippi), will be entitled to extend federal worker benefits to their spouses and children, regardless of whether the marriage is to someone of the same or opposite sex.

THE ISSUE:
In November of 2008, California voters approved a ballot measure, Proposition 8, that banned same-sex marriages in their state.  This measure was controversial, and, in 2010, Proposition 8 was ruled unconstitutional by a federal court.  This ruling, too, was controversial, and an appeal ultimately made to the Supreme Court (Hollingsworth v. Perry).

THE RULING:
On June 26, 2013, the Supreme Court ruled that the district court’s 2010 ruling (calling Proposition 8 unconstitutional) should stand as a final decision.

HOW THIS AFFECTS AMERICANS:
For those who reside in California and wish to marry a partner of the same sex, this Supreme Court ruling has paved the way to do so.

NEXT WEEK – For the final blog in this series about recent Supreme Court decisions, check in next week as we look at how the Supreme Court weighed in on voting rights.