Health Care Malpractice (Chapter 6 of Torts: Michigan Law and Practice)
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Chapter 6: Health Care Malpractice
Chad D. Engelhardt, Goethel Engelhardt PLLC; Jennifer A. Engelhardt, Goethel Engelhardt PLLC
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CONTENTS
Scope of the Cause of Action for Health Care Malpractice
Presuit Considerations
Pleading Requirements
Discovery Issues
Evidentiary Issues
Limits on Liability
Case Evaluation and Settlement
Jury Instructions

I.   Overview

§6.1   Medical malpractice is a subspecialty of tort law that involves the professional negligence of licensed health care practitioners and facilities. The phrase licensed health care providers includes, inter alia, the following occupations: audiology, chiropractic, counseling, dentistry, medicine, nursing, occupational therapy, optometry, osteopathic medicine, pharmacy, physical therapy, podiatry, psychology, speech-language pathology, and social work. MCL 333.16101 et seq.; see also MCL 600.5838a(1)(b).

To prevail in a malpractice action against any of these professionals, the plaintiff must prove the elements of duty, breach, causation, and damages. Weymers v Khera, 454 Mich 639, 563 NW2d 647 (1997). The malpractice of the professional is the professional’s deviation from the standard of care that would be followed by a reasonable and prudent professional of similar training under the same or similar circumstances. In general, there must be a provider-patient relationship established for liability to attach. Weaver v University of Michigan Bd of Regents, 201 Mich App 239, 506 NW2d 264 (1993); Rogers v Horvath, 65 Mich App 644, 237 NW2d 595 (1975).

In 1993, the Michigan legislature passed an expansive piece of legislation that substantially altered Michigan law regarding health care malpractice claims. The legislature also repealed, in total, Michigan’s Medical Malpractice Arbitration Act (MMAA), MCL 600.5040 et seq., and replaced its provisions. In addition, significant changes were made that affected statutory provisions concerning the limitation period, a mandatory notice of intent, affidavits of meritorious claim and defense, burden of proof, and caps on noneconomic damages.

A two-year statute of limitations applies to actions for health care malpractice. MCL 600.5838a; see also MCL 600.5805(5). This period is measured from the date of the act or omission that is the basis for the malpractice action. MCL 600.5838a. There are special rules providing exceptions for persons under disabilities, MCL 600.5851–.5855; minors, MCL 600.5851(7), (8); and plaintiffs who later discover or should have discovered the claim, MCL 600.5838a(2). In certain circumstances, wrongful-death claims may be subject to additional time via a savings provision, not to exceed three years from the date on which the period of limitations runs. MCL 600.5852. Notably, there is a six-year statute of repose beyond which claims brought under the statutory discovery rule may not be brought at all, except in very narrowly defined circumstances. Id.

A plaintiff who intends to bring a health care malpractice action must give written notice of his or her intent to file a claim 182 days before commencing the action. MCL 600.2912b(1). This period may be shortened in some situations, which are specified in MCL 600.2912b. The contents of the notice must follow the requirements of MCL 600.2912b(4).

A complaint must be accompanied by an affidavit of merit that is signed by an expert who plaintiff’s counsel reasonably believes meets statutorily specified qualifications. MCL 600.2169, .2912d(1). The complaint must allege sufficient facts necessary to constitute a cause of action. Simonelli v Cassidy, 336 Mich 635, 59 NW2d 28 (1953).

At trial, expert testimony is generally required to establish the standard of care and the defendant’s breach of that standard. Lince v Monson, 363 Mich 135, 108 NW2d 845 (1961). The statutory requirements for the expert to qualify as an expert witness and for admissibility of the testimony itself must be adhered to carefully. See MCL 600.2169, .2955; MRE 702. The plaintiff must also prove the causal link between the alleged negligence and the injury to a reasonable degree of medical probability, i.e., more likely than not (50.1 percent). Causation may not be left to mere speculation or conjecture. Serafin v Peoples Cmty Hosp Auth, 67 Mich App 560, 242 NW2d 438 (1976). However, the plaintiff does not bear a higher burden of proof in proving causation in a malpractice case than in other tort actions. The supreme court has rejected the argument that a plaintiff must precisely quantify causation and has specifically held that a percentage-based quantitative analysis is not required in a medical malpractice case. The seminal case on this issue is O’Neal v St John Hosp & Med Ctr, 487 Mich 485, 496–497, 791 NW2d 853 (2010), where the supreme court instructed that it is “well-settled that proximate causation in a malpractice claim is treated no differently than in an ordinary negligence claim … . [T]he analysis is the same as in any other ordinary negligence claim.” Moreover, it is well established in Michigan law that causation in a medical malpractice action may be established by circumstantial evidence. See Ykimoff v WA Foote Mem’l Hosp, 285 Mich App 80, 87, 776 NW2d 114 (2009); Robins v Garg  (On Remand), 276 Mich App 351, 362, 741 NW2d 49 2007); Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 496, 668 NW2d 402 (2003).

As modern medicine becomes more complex, so does medical malpractice law. A thorough understanding of the medicine and medical procedures involved in each case is essential to properly identify deviations in the standard of care by the individuals involved in the treatment of the patient and to determine the causal relationship between the deviations and the damages caused by them. This area of the law has unique characteristics due to its distinct liability issues, legal framework, and the amount of medical knowledge required to effectively litigate a malpractice case.

Footnotes

1 The authors gratefully acknowledge the excellent work of Heidi L. Salter-Ferris and Don Ferris on previous versions of this chapter, as well as the work of Marietta S. Robinson and Joanne Fitzgerald Ross in their original chapter on this topic published in Torts: Michigan Law and Practice (Linda Miller Atkinson & Katharine B. Soper eds, ICLE 1992).

Forms and Exhibits

Form 6.01 Notice of Intent to Sue (Medical Malpractice)
Form 6.02 Plaintiff's Affidavit of Merit (Medical Malpractice)
Form 6.03 Complaint for Medical Malpractice
Form 6.04 Affidavit of Noninvolvement (Medical Malpractice Action)
Form 6.05 Affidavit of Meritorious Defense (Medical Malpractice Action)
Form 6.06 Interrogatories to Defendant Doctor (Medical Malpractice)
Form 6.07 Interrogatories to Defendant Doctor's Professional Corporation (Medical Malpractice)
Form 6.08 Sample Interrogatories to Defendant Hospital (Obstetrical Medical Malpractice)
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