Medical Malpractice Study Guide M2024 PDF

Medical Malpractice Study Guide Rev M2024 Note from Prof. Engelhardt- this study guide is intended as a supplement to your own review and outline, not a substitute. There may be items covered on the exam from the reading assignments or class discussion that are not contained in this study guide. As...

Medical Malpractice Study Guide Rev M2024 Note from Prof. Engelhardt- this study guide is intended as a supplement to your own review and outline, not a substitute. There may be items covered on the exam from the reading assignments or class discussion that are not contained in this study guide. As well, the study guide likely contains information not found in the exam, but will help you if you ever practice in this area of law. My goal is not just for you to do well on the exam. Instead, it is for you to have a good knowledge of the subject matter we have covered and to become exceptional practitioners. I have every faith that you are capable of both. Good luck. WHAT IS MEDICAL NEGLIGENCE? In our discussion of “what” medical malpractice is, we focused on the seminal case of Bryant v Oakpointe Villa. In that case, the MSC looked to the accrual statute (MCL 600.5838a) which codifies to whom such a cause of action applies against, and when the limitations clock starts ticking. We also looked at the relevant jury instructions that outline what malpractice is, including the elements of the cause of action, burden and quantum of proof. We also discussed the common law and statutory prohibition on wrongful life claims as a cause of action on which to basis a malpractice law suit. Why does it matter whether a claim sounds in ordinary negligence vs medical malpractice? 1 As we explored through the term, medical malpractice cases are fraught with procedural and procedural differences that serve to protect medical providers, institutions and their insurance companies. These include: 1. Accrual of limitations period at date of negligence, not the date of harm. 2. Shortened statute of limitations. 3. Statute of Repose. 4. Pre-suit Notice requirements (NOI) 5. Special pleading requirements including required specificity of the Complaint, Affidavits of Merit. 6. Special expert witness requirements 7. Sec 1483 Economic Medical and Rehab limitations, Sec. 1483 damage caps (non-economic) 8. Joint and Several Liability preserved under certain conditions. General elements of malpractice are the same as ordinary negligence: Duty, Breach, Causation, and Damages. Duty in a med mal case, is the duty to comply with the applicable professional standard of care. Reasonableness as compared to peers of ordinary learning , training and experience, compared the hypothetical reasonable man standard of ordinary negligence. Bryant v Oakpointe Villa 2-prong test: A claim that arises: (1) during the course of a professional relationship, and (2) involves a question of medical judgment. Necessarily raise questions involving medical/ professional judgment (see Bryant)—outside the purview or common knowledge of a lay juror Professional relationship—defined by certain professions in specified in the Public Health Code. B) Applies to “Licensed” Healthcare Professional (Art. 15) or 2  Health Care Facility (Art. 17) (e.g., doctors, dentists, nurses, psychologists, social workers) Accrual Statute: MCL 600.5838a(1) (a) A professional relationship exist when: “a licensed health care professional, licensed health care facility, or the agents or employees of a licensed health care facility, [are] subject to a contractual duty that require[s] that professional, that facility, or the agents or employees of that facility, to render professional health care services to the plaintiff.” 1) Includes entities as well (a) Hospitals, professional corporations (i) But act through licensed individuals B) Definition of “Medical Negligence” aka “Medical Malpractice” M Civ JI 30.01 – Professional Negligence and/or Malpractice When I use the words “professional negligence” or “malpractice” with respect to the defendant’s conduct, I mean the failure to do something which a [Name profession.] of ordinary learning, judgment or skill in [this community or a similar one / [Name particular specialty.]] would do, or the doing of something which a [Name profession.] of ordinary learning, judgment or skill would not do, under the same or similar circumstances you find to exist in this case. Michigan does not recognize Wrongful Birth (Taylor v Kurapati, 236 Mich App 315 (1999), MCL 600.2971. 600.2971 Wrongful birth or wrongful life claims; prohibitions; exceptions. 3 (1) A person shall not bring a civil action on a wrongful birth claim that, but for an act or omission of the defendant, a child or children would not or should not have been born. (2) A person shall not bring a civil action for damages on a wrongful life claim that, but for the negligent act or omission of the defendant, the person bringing the action would not or should not have been born. (3) A person shall not bring a civil action for damages for daily living, medical, educational, or other expenses necessary to raise a child to the age of majority, on a wrongful pregnancy or wrongful conception claim that, but for an act or omission of the defendant, the child would not or should not have been conceived. (4) The prohibition stated in subsection (1), (2), or (3) applies regardless of whether the child is born healthy or with a birth defect or other adverse medical condition. The prohibition stated in subsection (1), (2), or (3) does not apply to a civil action for damages for an intentional or grossly negligent act or omission, including, but not limited to, an act or omission that violates the Michigan penal code, 1931 PA 328, MCL 750.1 to 750.568. 4 Fetal Wrongful Death MCL 600.2922a (actionable regardless of gestational age, but must be an affirmative act, i.e. of commission, not omission. See Johnson 491 Mich 417 (2012). Apology Statute 600.2155 Statement, writing, or action expressing sympathy, compassion, commiseration, or benevolence; admissibility in action for malpractice; "family" defined. (1) A statement, writing, or action that expresses sympathy, compassion, commiseration, or a general sense of benevolence relating to the pain, suffering, or death of an individual and that is made to that individual or to the individual's family is inadmissible as evidence of an admission of liability in an action for medical malpractice. (2) This section does not apply to a statement of fault, negligence, or culpable conduct that is part of or made in addition to a statement, writing, or action described in subsection (1). (3) As used in this section, "family" means spouse, parent, grandparent, stepmother, stepfather, child, adopted child, grandchild, brother, sister, half brother, half sister, father-in- law, or mother-in-law. RES IPSA LOQUITER Res ipsa is a dual purpose doctrine- it can be a species of ordinary negligence (applying the Bryant 2 prong test) or used to provide an inference of causation to prove medical malpractice. 4 Elements of res ipsa loquiter: 1. The event must be of a kind which ordinarily does not 5  occur in the absence of someone’s negligence; 2. It must be caused by an agency or instrumentality within the exclusive control of the defendant; 3. It must not have been due to any voluntary action or contribution on the part of the plaintiff 4. Evidence of the true explanation of the event must be more readily accessible to the defendant than to the plaintiff. Need expert for Res Ipsa? I t Depends. Expert needed if not within common knowledge of jury. ( B r y a n t P r o n g 2 ) Ostensible Agency- the Grewe Doctrine (Re-affirmed in Markel v Beaumont) A hospital is generally not vicariously liable for the negligence of a physician who is an independent contractor and who only uses the hospital’s facilities to provide treatment to his or her patients. Grewe v Mount Clemens Gen Hosp, 404 Mich 240, 250, 273 NW2d 429 (1978). Under certain factual circumstances, however, a staff physician may be found to be the ostensible agent of a hospital. Id. To determine whether a staff physician was an employee or agent of a hospital under this theory, the Grewe court established the following guidelines: [I]f the individual looked to the hospital to provide him with medical treatment and there has been a representation by the hospital that medical treatment would be afforded by physicians working therein, an agency by estoppel can be found. The critical question is whether the plaintiff, at the time of his admission to the hospital, was looking to the hospital for treatment of his physical ailments or merely viewed the hospital as the situs where his physician would treat him for his problems. A relevant factor in this determination involves resolution of the question of whether the hospital provided the plaintiff with the doctor or whether there was a patient-physician relationship independent of the hospital setting. 6 Expert witness qualifications (MRE 702, MCL 600.2169) 2169(1) applies to standard of care MRE 702 and 2169(2) can be applied to all med mal expert testimony. 600.2169 Qualifications of expert witness in action alleging medical malpractice; determination; disqualification of expert witness (1) In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria: (a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty. (b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following: (i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, the active clinical practice of that specialty. (ii) The instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed and, if that party is a specialist, an accredited health professional school or accredited residency or clinical research program in the same specialty. 7 (c) If the party against whom or on whose behalf the testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the claim or action, devoted a majority of his or her professional time to either or both of the following: (i) Active clinical practice as a general practitioner. (ii) Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the testimony is offered is licensed. (2) In determining the qualifications of an expert witness in an action alleging medical malpractice, the court shall, at a minimum, evaluate all of the following: (a) The educational and professional training of the expert witness. (b) The area of specialization of the expert witness. (c) The length of time the expert witness has been engaged in the active clinical practice or instruction of the health profession or the specialty. (d) The relevancy of the expert witness's testimony. (3) This section does not limit the power of the trial court to disqualify an expert witness on grounds other than the qualifications set forth in this section. Seminal Case: Stokes v Swofford, overruled Woodard v Custer, 476 Mich 545 (2006) Stokes v Swofford and its companion case, Selliman v Colton, involve a 8 common and critical issue in medical malpractice cases—which specialty qualifications an expert must hold in order to testify as to the standard of care. Michigan statute (MCL 600.2169(1)) provides that a testifying expert must spend the year preceding the malpractice in the same active clinical practice or instruction of that specialty which the defendant doctor practiced at the time of the alleged malpractice. While the statute specifically identifies the requirement as matching specialties, under a case called Woodard v Custer, subspecialties could be considered specialties. Woodard caused confusion and conflicting results among various opinions, including some experts being disqualified as “overqualified.” With these principles in mind, in Stokes, the defendant was a general radiologist who was trained in neuroradiology and at one point held a subspecialty certificate in neuroradiology, but did not at the time of negligence. The issue in the Stokes case was whether the defendant- doctor’s reading of a brain (neurologic) film fell into the general radiology specialty or the neuroradiology subspecialty for purposes of who could testify as an expert against the defendant. In the companion case of Selliman, the defendant-doctor and proposed expert were both dually certified in otolaryngology and facial plastics and reconstruction; both specialties perform rhinoplasties, commonly known as a “nose job.” Although the defendant-doctor and proposed expert held the same certifications, they practiced these overlapping specialties in different percentages. The Michigan Supreme Court decided that subspecialties are not specialties and overruled Woodard. Practically, for Stokes, the applicable specialty for standard of care testimony is general radiology, not neuroradiology. In Selliman, the Court reversed and remanded to the trial court for a re-analysis based on the overruling of Woodard. The Michigan Supreme Court appropriately noted that nothing in its opinion precluded the Court from undertaking its mandated gatekeeping role and applying Michigan statutes and evidentiary rules 9  when determining whether an expert can testify. Statute on qualifications of expert witnesses in medical malpractice actions requires plaintiff's standard of care expert witness to match the one most relevant standard of practice or care, i.e., the specialty engaged in by the defendant physician during the course of the alleged malpractice, and, if the defendant physician is board certified in that specialty, the plaintiff's expert must also be board certified in that specialty; the statute requires the matching of a singular specialty, not multiple specialties, and does not require witness to specialize in specialties and possess board certificates that are not relevant to the standard of medical practice or care about which the witness is to testify. Qualification of an expert under statute requiring expert witness in medical malpractice action to specialize in same specialty as defendant physician does not mean that the trial court cannot disqualify the expert on other grounds. MCL § 600.2169, 600.2955; MRE 702. Notice of Intent and NOI tolling period MCL 600.2912b MCL 600.2912b(1) provides that plaintiffs who intend to bring a health care malpractice cause of action against a health care professional or a health facility are required to give written notice of their intent to file a claim 182 days before actually commencing the action. Neal v Oakwood Hosp Corp, 226 Mich App 701, 575 NW2d 68 (1997), held that if a plaintiff fails to comply with this notice requirement before filing suit, the appropriate sanction is dismissal without prejudice (so long as there is time in the SOL.) If SOL has expired, dismissal is with prejudice. Required content of NOI MCL 600.2912b(4) Factual basis for claim Should strive for same level of specificity as in Complaint Applicable standard of care claimed 10  For each defendant Manner in which standard of care was breached For each defendant- even though no special form required. Action that should have been taken to achieve compliance Causation- Challenges to NOI Timing - Must be made by defense in first responsive pleading, MCR 2.112(L)(2) Cures the defense practice of belated attacks after SOL expires 2010 amendments to MCR 2.112(L) and MCR 2.118(D) protect both plaintiffs and defendants with respect to defective notices of intent, affidavits of merit, and affidavits of meritorious defense in medical malpractice cases. The amendments to MCR 2.112(L) provide that unless the trial court allows a later challenge for good cause, challenges to notices of intent must be made by motion no later than the defendant’s first responsive pleading. Challenges to affidavits of merit and affidavits of meritorious defense must also be made by motion within 63 days of service of the allegedly defective affidavit. Further, amended MCR 2.118(D) provides that amended affidavits in medical malpractice cases relate back to the date the original was filed. The new rule means that even if a party successfully challenges a plaintiff’s notice of intent, the plaintiff may amend the notice because the statute of limitations is tolled under Bush. Bush v Shabahang, 484 Mich 156 (2009), MCL 600.2301 After Mailing of NOI, When May a Complaint Be Filed? After an NOI is mailed, the complaint may be filed: 1. after the notice period of 182 days has run, MCL 600.2912b(1); 2. after the expiration of 154 days from the date notice was given, if the noticed party fails to provide the required written response, MCL 600.2912b(8); or 3. any time during the 182-day notice period, if the noticed party 11  informs the claimant in writing of his or her intent not to settle within the notice period, MCL 600.2912b(9). To qualify for the 91-day shortened notice period, all of the following requirements must be met: 1. The claimant previously filed a 182-day notice against another health care professional or facility involved in this claim. 2. The 182-day notice period expired against those individuals already noticed. 3. The claimant filed a complaint against the individuals previously noticed. 4. Before filing the complaint, the claimant did not identify or could not reasonably have identified the individual or facility to whom he or she now wishes to send notice. Effective date of NOI: MAILING NOI, not FILING with the COURT (it is normally not filed) or DATE of Receipt Who gets served- Any potential defendant. Includes corp defendants. Potter v McLeary, 484 Mich 397, 774 NW2d 1 (2009) Where Must be mailed to the last known professional or residential address of the individual noticed or, if the individual’s last address is unknown and cannot be reasonably ascertained, the notice may be mailed to the health facility where the care was rendered. Proof of mailing is prima facie evidence of compliance with the notice requirement. See MCL 600.2912b(2). 12  Statute of Limitations (with Exceptions and savings provisions), Tolling & Statute of Repose ( I) STATUTE OF LIMITATIONS A) Accrual: MCL 600.5838a provides that a claim for medical malpractice must be filed within two years from the date of the act or omission that is the basis for the malpractice action. Therefore, in McKiney v Clayman, 237 Mich App 198, 602 NW2d 612 (1999), the court of appeals held that plaintiff could allege separate acts or omissions of defendant that would represent new accrual dates, but the final termination of the parties’ physician-patient relationship was irrelevant. B) General Rule: 2 Years from Date of Negligence 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). However, there is a six-year statute of repose beyond which claims may not be brought at all, except in very narrowly defined circumstances. Id. 13 Exceptions to the general rule- minors, disability, discovery rule. Savings provisions- Wrongful Death. There are exceptions to the general two-year period of limitation. Under the first of these exceptions, if a legal disability such as infancy, insanity, death, absence from the state, war, or fraudulent concealment exists when the action accrues, the action may be commenced within the time limits set forth in each of the savings statutes. MCL 600.5851–.5855. The time limit begins to run from the date the disability is removed. See, e.g., MCL 600.5851(1). Under MCL 600.5851(7), if a medical malpractice claim accrues before a child’s 8th birthday, the claim must be brought on or before the child’s 10th birthday or within the period of limitation set forth in MCL 600.5838a (the standard medical malpractice statute of limitations), whichever is later. Pursuant to the plain language of MCL 600.5851(7), there are three alternative periods of limitation for a medical malpractice claim whose claim accrues before a child reaches her 8th birthday: (1) before her 10th birthday; (2) two years after the claim accrued; or (3) six months after she discovered or should have discovered her claim. Vanslembrouck v Halperin (Also, Disability Tolling per Vega, infra) The Insanity (Disability) Tolling Provision of the Revised Judicature Act, MCL 600.5851, et seq. The saving provision of §5851(1) of the Revised Judicature Act (RJA) provides that if a person is “insane at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run.” 14  Statutory Definition of Insane For Purposes of Tolling SOL For purposes of tolling the SOL, §5851(2) of the RJA defines insanity as “a condition of mental derangement such as to prevent the sufferer from comprehending rights he or she is otherwise bound to know and is not dependent on whether or not the person has been judicially declared to be insane.” Insanity Is A Question Of Fact For The Jury To Decide The determination of insanity is generally a question of fact for the jury to decide “unless it is incontrovertibly established either that the plaintiff did not suffer from insanity at the time the claim accrued or that he had recovered from any such disability more than one year before he commenced his action.” Makarow v Volkswagen of America, Inc., 157 Mich App 401 (1987). The Michigan Supreme Court has held that medical malpractice claimants are not excluded from the disability grace period. Vega v Lakeland Hosp, 479 Mich 243, 736 NW2d 561 (2007). In dicta, the Court suggested that except in cases of minors, the six- year statute of repose could apply to such cases. Id., fn, 3. However, this dicta conflicts with the still controlling precedent found in Casey v Henry Ford Health Sys, 235 Mich App 449, 597 NW2d 840 (1999), which limits the application of the statute of repose to discovery rule cases under MCL 600.5838a(2). C) 6-Month Discovery Rule MCL 600.5838a(2) 1) “within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later” A plaintiff may start a lawsuit after the two-year period has expired if the suit is filed within six months of when the plaintiff discovered or should have discovered the malpractice. MCL 600.5838a(2). A two- prong test has developed to determine when a malpractice claim is 15 discovered. The courts look to (1) when the defendant’s act or omission becomes known (when the plaintiff discovers the claim) and (2) when the plaintiff has reason to believe the medical treatment was either improper or performed in an improper manner (when a reasonable person would have discovered the claim). Levinson v Trotsky, 199 Mich App 110, 500 NW2d 762 (1993) The statute places the burden of proof on the plaintiff to demonstrate that “the plaintiff, as a result of physical discomfort, appearance, condition, or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim.” MCL 600.5838a(2) When the Plaintiff Should Have Discovered the Claim 1. The Reasonable Person Test The second prong of the discovery rule test is based on a reasonable person analysis, that is, when a reasonable person should have discovered the claim. Levinson v Trotsky, 199 Mich App 110, 500 NW2d 762 (1993). The court in Levinson “decline[d] to make plaintiff’s subjective beliefs part and parcel of [the] objective standard …because doing so would result in a subjective standard and not an objective ‘reasonable person’ standard.” Id. at 113. In Turner v Mercy Hosps & Health Servs, 210 Mich App 345, 533 NW2d 365 (1995), the court held that a plaintiff has a duty to diligently investigate the existence of a claim in a 16 timely manner. Is reasonable- An Issue of fact or law? In Kermizian v Sumcad, 188 Mich App 690, 470 NW2d 500 (1991), the Michigan Court of Appeals resolved a conflict between panels regarding whether the issue of when a plaintiff discovered or should have discovered the malpractice claim is for the jury to decide. IN that case, the court held that any dispute about when a plaintiff discovered or reasonably should have discovered the cause of action is a factual determination for the jury to make. A) Statute of Repose MCL 600.5838a(2) 1) “the claim shall not be commenced later than 6 years after the date of the act or omission that is the basis for the claim” MCL 600.5838a(2) substantially limits the discovery rule with a six-year statute of repose for bringing a medical malpractice claim. The six-year provision states that “except as otherwise provided in [MCL 600.5851(7) or (8) regarding claims of minors], the claim shall not be commenced later than 6 years after the date of the act or omission that is the basis for the claim.” MCL 600.5838a(2). MCL 600.5838a(2) provides that the six-year provision does not apply in the following situations: (a) If discovery of the existence of the claim was prevented by the fraudulent conduct of the health care professional against whom the claim is made or a named employee or agent of the health professional against whom the claim is made, or of the health facility against whom the claim is 17  made or a named employee or agent of a health facility against whom the claim is made. (b) There has been permanent loss of or damage to a reproductive organ resulting in the inability to procreate. The six-year statute of repose applies to limit the application of the discovery rule. In Casey v Henry Ford Health Sys, 235 Mich App 449, 597 NW2d 840 (1999), plaintiff brought suit on her child’s behalf before his 15th birthday but more than six years after the claim had accrued. Defendant argued that the claim was barred because of the six-year provision. The court of appeals disagreed and held that that provision only applies to the discovery rule. (But note dicta in Vega v Lakeland that suggests it could apply to disability tolling in malpractice action) D) Wrongful Death Savings Statute MCL 600.5852 1) Two years from appointment of personal representative 2) Not tolled by NOI because not a statute of limitations or repose, but rather a savings provision. (Waltz) The saving provision applies in cases in which (1) the malpractice action accrued or was discovered before death and (2) the person died before the limitation period had run or within 30 days after the period of limitation had run. MCL 600.5852 Under MCL 600.5852(1), if a person dies before the limitation 18  period has run or within 30 days after it has run, his or her personal representative may bring suit within two years after the letters of authority are issued. However, the action must be filed within three years after the limitation period has expired. In medical malpractice causes of action arising on or after March 28, 2013, MCL 600.5852(2) provides that the two-year period runs from the date letters of authority are issued to the first personal representative, and, with one exception, the issuance of subsequent letters of authority does not enlarge the time within which the action may be commenced. The exception is outlined in subsection (3), which provides that if a personal representative dies or becomes legally incapacitated within two years after his or her letters are issued, the successor personal representative may bring an action alleging medical malpractice that survives by law within one year after the death/incapacitation. MCL 600.5852(3). No action may be commenced later than three years after the period of limitation has run. MCL 600.5852(4). (a) Waltz v Wyse, 469 Mich 642 (2004) (see class discussion) SOL Tolling (stopping the clock) Pursuant to MCL 600.5856(c), the statute of limitations will be tolled for a period equal to the notice period if the statute of limitations lapses during the notice (NOI) period. If the claim would not be barred by the statute of limitations or repose during the applicable notice period, there is no tolling of the statute of limitations. The statute of limitations is tolled through the end of the 182-day notice period, even if a shorter notice period applies. MCL 600.2912b(8) provides that a plaintiff may file a complaint after the expiration of 154 days if the noticed party fails to provide the written response required by the statute. In Omelenchuk v City of Warren, 461 Mich 567, 609 NW2d 177 (2000), the court determined that the 154- 19 day notice period was irrelevant for tolling purposes; the statute is tolled the entire 182 days, and the plaintiff has as many days left on the statute after the 182 days as the plaintiff had left on the statute of limitations before the notice was filed. A plaintiff is entitled to a tolling period of a full 182 days, even if the defendant fails to provide the required written response, and plaintiff could have filed suit after 154 days. Vanslembrouck v Halperin, 277 Mich App 558, 747 NW2d 311, appeal granted, 481 Mich 918, 750 NW2d 591 (2008), leave to appeal denied, 483 Mich 965, 763 NW2d 919 (2009). Amended NOI A plaintiff who files a notice of intent sufficiently early in the limitation period that no tolling begins may send a second notice of intent with fewer than 182 days remaining in the limitation period and rely on the second notice to initiate tolling under MCL 600.5856(c). Mayberry v General Orthopedics, PC, 474 Mich 1, 704 NW2d 69 (2005). In Hoffman v Boonsiri, 290 Mich App 34, 801 NW2d 385 (2010), the court found that although plaintiff’s original notice of intent was defective and did not trigger tolling under MCL 600.5856(c), her amended notice of intent did toll the limitation period. Plaintiff was not required to wait an additional 182 days after filing her amended notice of intent pursuant to MCL 600.2912d before filing her medical malpractice complaint. Wrongful death cases Waltz v Wyse -No notice tolling under savings provision, not a SOL. See above. AFFIDAVIT OF MERIT (AOM) NOTE REASONABLE BELIEF Requirement of AOM vs Testimonial Qualification 20 600.2912d. Medical malpractice action; duty of plaintiff to furnish security or file affidavit (1) Subject to subsection (2), the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff's attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements for an expert witness under section 2169.1 The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff's attorney concerning the allegations contained in the notice and shall contain a statement of each of the following: (a) The applicable standard of practice or care. (b) The health professional's opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice. (c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care. (d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice. Amended AOM- unless adding new parties, no new AOM is generally required with an amended Complaint for new theories revealed in discovery. See King v Reed, holding 600.2912d requires the filing of an affidavit of merit only with the original complaint. In King v Reed, 278 Mich App 504, 751 NW2d 525 (2008), the court of appeals held that it was not necessary for plaintiff to file an amended affidavit of merit 21 with its amended complaint, which contained theories of negligence not referenced in the original affidavit. There was no evidence that plaintiff discovered evidence of any negligence on defendant’s part before the commencement of discovery. If the amended theories of liability were reasonably revealed only during discovery, defendant had the burden of proving that plaintiff could have known of the amended theories before discovery. MCR 2.112(L) provides that unless the trial court allows a later challenge for good cause, challenges to notices of intent must be made by motion no later than the defendant’s first responsive pleading. Challenges to affidavits of merit and affidavits of meritorious defense must also be made by motion within 63 days of service of the allegedly defective affidavit. MCR 2.118(D) provides that amended affidavits in medical malpractice cases relate back to the date the original was filed. Deficiencies with the AOM (The classic – “the breaches caused the injuries”) Defective AOM Tolls SOL – Kirkaldy v Rim, 478 Mich 581 (2007) 22  MCR 2.118(D) – Relation Back of Amendment … “In a medical malpractice action, an amendment of an affidavit of merit or affidavit of meritorious defense relates back to the date of the original filing.” But not if relied upon Savings Provision of Wrongful Death Savings – Ligons v Crittenton Hosp., 490 Mich 61 (2011) AFFIDAVIT OF MERITORIOUS DEFENSE (AOMD) 600.2912e. Medical malpractice action; duty of defendant to furnish security or file affidavit Sec. 2912e. (1) In an action alleging medical malpractice, within 21 days after the plaintiff has filed an affidavit in compliance with section 2912d, the defendant shall file an answer to the complaint. Subject to subsection (2), the defendant or, if the defendant is represented by an attorney, the defendant's attorney shall file, not later than 91 days after the plaintiff or the plaintiff's attorney files the affidavit required under section 2912d, an affidavit of meritorious defense signed by a health professional who the defendant's attorney reasonably believes meets the requirements for an expert witness under section 2169.2 The affidavit of meritorious defense shall certify that the health professional has reviewed the complaint and all medical records supplied to him or her by the defendant's attorney concerning the allegations contained in the complaint and shall contain a statement of each of the following: (a) The factual basis for each defense to the claims made against the defendant in the complaint. (b) The standard of practice or care that the health professional or health facility named as a defendant in the complaint claims to be 23 applicable to the action and that the health professional or health facility complied with that standard. (c) The manner in which it is claimed by the health professional or health facility named as a defendant in the complaint that there was compliance with the applicable standard of practice or care. (d) The manner in which the health professional or health facility named as a defendant in the complaint contends that the alleged injury or alleged damage to the plaintiff is not related to the care and treatment rendered. (2) If the plaintiff in an action alleging medical malpractice fails to allow access to medical records as required under section 2912b(6),3 the affidavit required under subsection (1) may be filed within 91 days after filing an answer to the complaint. Affidavit of non-involvement A defendant may, instead of answering the complaint, file an affidavit “certifying” that he or she was not involved, either directly or indirectly, in the alleged malpractice. MCL 600.2912c(1). If the affidavit is unopposed, the court must dismiss the affiant from the case without prejudice. Id.; see also MCR 2.116(B)(1). If the court orders the reinstatement of a defendant who was dismissed because of an affidavit of noninvolvement, the defendant may not raise the statute of limitations as a defense if that defense was not available when the original complaint was filed. MCL 600.2912c(2). Whether a witness is qualified to testify at trial depends on: 24  1. Ability to satisfy statutory and MRE criteria based on education, training, experience and sometimes practice pattern. 2. The substance of their testimony, is it a “fit” for their expertise? 3. Is it reliable such that it can assist the jury? (Intro to MRE 702/ Daubert) Focus on methodology. MRE 702: TESTIMONY BY EXPERTS If the court determines that scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise if (1) the testimony is based on sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. 25 MCL 600.2955 Scientific or expert opinion or evidence; admissibility. (1) In an action for the death of a person or for injury to a person or property, a scientific opinion rendered by an otherwise qualified expert is not admissible unless the court determines that the opinion is reliable and will assist the trier of fact. In making that determination, the court shall examine the opinion and the basis for the opinion, which basis includes the facts, technique, methodology, and reasoning relied on by the expert, and shall consider all of the following factors: (a) Whether the opinion and its basis have been subjected to scientific testing and replication. (b) Whether the opinion and its basis have been subjected to peer review publication. (c) The existence and maintenance of generally accepted standards governing the application and interpretation of a methodology or technique and whether the opinion and its basis are consistent with those standards. (d) The known or potential error rate of the opinion and its basis. (e) The degree to which the opinion and its basis are generally accepted within the relevant expert community. As used in this subdivision, “relevant expert community” means individuals who are knowledgeable in the field of study and are gainfully employed applying that knowledge on the free market. (f) Whether the basis for the opinion is reliable and whether experts in that field would rely on the same basis to reach the type of opinion being proffered. (g) Whether the opinion or methodology is relied upon by experts outside of the context of litigation. (2) A novel methodology or form of scientific evidence may be 26 admitted into evidence only if its proponent establishes that it has achieved general scientific acceptance among impartial and disinterested experts in the field. (3) In an action alleging medical malpractice, the provisions of this section are in addition to, and do not otherwise affect, the criteria for expert testimony provided in section 2169. While the issue of peer reviewed literature in medical malpractice has been the subject of litigation and case law for years, it is typically addressed in the context of the element of causation. In Danhoff, the issue arose in the area of standard of care. Specifically, the parties disputed whether medical literature was necessary to establish the standard of care applicable to the defendant where the plaintiff’s colon had been perforated during a spinal surgery, which is not something that is normally ever seen in spine surgery given the distant location between the surgery, the injury and where the instruments are supposed to be. The Court reaffirmed that while supportive literature is helpful, it is only one of the components used to reliability of the expert’s opinion. It may not be necessary or even available in every case. In fact, there are many situations in medicine where it would be unethical to conduct a randomized clinical trial. And medical literature typically does not address the terms standard of care, ie, what a reasonable provider would or would not due in a similar situation, which is often more a matter of experience, training and clinical education. The Court held that the lack of literature stating the standard of care is not fatal to a case. More specifically, as stated in the Danhoff syllabus, “If a lack of supportive medical literature were treated as dispositive when the opinions of a plaintiff’s expert were otherwise reliable, patients who experience complications so rare they have not been studied by the academic community or discussed in peer-reviewed publications 27  would not be able to offer admissible expert testimony when seeking legal recourse for their injuries. The avoidance of such a result is why MCL 600.2955 has several factors to be considered in determining reliability.” Proximate Cause The Statute: MCL 600.2912a(2) (3) [Traditional malpractice case] In an action alleging medical malpractice, the plaintiff has the burden of proving that he or she suffered an injury that more probably than not was proximately caused by the negligence of the defendant or defendants. [Lost opportunity (Remember the Benigni v Alsawah case from Judge Patel] In an action alleging medical malpractice, the plaintiff cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%. The Jury Instructions: M Civ JI 15.01, 15.03, and 15.04 M Civ JI 15.01 Definition of Proximate Cause When I use the words “proximate cause” I mean first, that the negligent conduct must have been a cause of plaintiff’s injury, and second, that the plaintiff’s injury must have been of a type that is a natural and probable result of the negligent conduct. M Civ JI 15.03 More Than One Proximate Cause There may be more than one proximate cause. To be a proximate cause, the claimed negligence need not be the only cause nor the last cause. A cause may be proximate although it and another cause act at the same time or in combination to produce the occurrence. 28  It is important to note that there may be more than one proximate cause of an injury. If the concurrent negligence of two or more persons proximately causes an injury, recovery may be had against one or more. Barringer v Arnold, 358 Mich 594, 599–600, 101 NW2d 365 (1960) (citing Gleason v Hanafin, 308 Mich 31, 37, 13 NW2d 196 (1944)). The question presented is always whether the defendant’s conduct was a, not the, proximate cause of the injury to the plaintiff. It is error to instruct the jury that the defendant’s negligence must be the proximate cause of the injury. Such a charge implies that the plaintiff cannot recover unless the defendant’s negligence is the sole proximate cause of an accident and ignores the possibility that there may be two proximate causes. Also, liable for pre-existing injury, eggshell plaintiff. 29  Damages and Damage Caps II) DAMAGES A) Types of Damages 1) Economic- has a price tag, past medical and rehabilitation expense limited to lien, out-of-pocket and outstanding expenses. 2) Noneconomic- pain, suffering, disfigurement, emotional distress, etc 3) Other (a) Punitive – Michigan does not recognize civil damages that punish wrongdoer – only damages that compensate injured party (b) Exemplary damages- rarely available in a malpractice or negligence action—practice point- don’t plead yourself out of insurance coverage, and also requires showing of intent, malice, reckless disregard. (i) Willful, malicious conduct that disregards plaintiff’s rights (ii) Damages for injury to feelings (iii) Awardable where defendant commits a voluntary act that inspires feelings of humiliation, outrage, and indignity that merit additional compensation. (iv) Not to punish but to render plaintiff whole. 4) When A Death Has Occurred (a) Wrongful Death Act MCL 600.2922(6) The WDA provides for the award of damages MCL 600.2922(6): the court or jury shall consider fair and equitable, under all the circumstances including reasonable medical, hospital, funeral, and burial expenses for which the estate is liable; reasonable compensation for the pain and suffering, while conscious, undergone by the deceased person during the period intervening between the 30 time of the injury and death; and damages for the loss of financial support and the loss of society and companionship of the deceased. Wrongful Death Damages: Daher (a change in the law from when Barrett was litigated_ Jawad Jumaa was a 13 year old who died from bacterial meningitis. His parents filed a wrongful death suit alleging that his death was the result of medical malpractice. One element of damages his parents alleged were for collection of his lost future earnings, ie what he would have earned during his lifetime had he not died. The Michigan Supreme Court determined that lost future earnings were not a compensable damage under Michigan’s Wrongful Death Act absent a showing that a beneficiary was entitled to those earnings as lost financial support. The Court’s rationale that these damages were not allowed because lost earning capacity was not specifically delineated as compensable under the Act. The Court held that the word, “including” in the wrongful death act was not by way of example but exhaustive and exclusive in the context of the Act. The medical malpractice damages cap applies to a wrongful death action based on an underlying claim of medical malpractice. Estate of Shinholster v Annapolis Hosp, 471 Mich 540, 685 NW2d 275 (2004); Jenkins v Patel, 471 Mich 158, 684 NW2d 346 (2004). B) Noneconomic Damages (a) Statutory caps / tort reform (And see below too!) (b) Jury instructed to separate damages between “economic loss” & “noneconomic loss” M Civ JI 50.21 & MCL 600.1483(2) 31  2) Statutory caps on recovery MCL 600.1483 (1) – Limitation on (a) High / Noneconomic low- Damages 32  (b) (hidden / concealed from the fact-finder)Jury not told about caps. (c) Adjusted annually with inflation (change in consumer price index) (MCL 600.1483(4)) (i) www.michigan.gov/documents/nonecolimit101_3658_7.pdf 3) Types of non-econ damages (Non-Exhaustive) M Civ JI 50.02 & 50.21 (a) Everything that does not fit into categories of economic (i) Pain, suffering, inconvenience, physical impairment, physical disfigurement, denial of social pleasure and enjoyment, embarrassment, mental anguish, fright and shock, embarrassment, humiliation, mortification, etc. (MCL 600.1483(3)) C) Economic Damages 1) Limited by damage cap statute (600.1482) (a) Can be objectively quantified and represent a verifiable pecuniary loss Examples (Non-Exhaustive) (b) Medical expenses (i) past bills and future medical bills (i) Liens (subrogation rights) (ii) Current & future services (i) Attendant care, nursing, rehabilitation (b) Lost compensation / financial support (i) Wages and benefits (ii) Lost earning potential (c) Loss of Household Services (i) Economic value (e.g., cost of replacement services) (i) Thorn v Mercy Memorial Hosp Corp, 281 Mich 33  App 644 (2008) In Thorn v Mercy Mem’l Hosp Corp, 281 Mich App 644, 761 NW2d 414 (2008), the court of appeals found that loss of services damages are economic damages available under the wrongful death statute and are therefore not subject to the damages cap of MCL 600.1483. However, this is subject to challenge after the Daher case, overruling at least in part Thorn. Future developments expected. (d)Others (Death cases) (i) Funeral and burial expenses (ii) Loss of gifts or other valuable gratuities (iii) Loss of parental training and guidance DAMAGE CAPS, continued….. Cap represents “the total amount of damages for noneconomic loss recoverable by all plaintiffs, resulting from the medical malpractice of all defendants.” MCL 600.1483(1) (emphasis added). Caps do not apply to ordinary negligence claims. MCL 600.1483(1) places a two-tier cap on noneconomic damages. There is a general cap for noneconomic damages, which is essentially $280,000 plus an annual adjustment to reflect the consumer price index ($445,500 in 2017, $569,000 in 2024). This general cap represents “the total amount of damages for noneconomic loss recoverable by all plaintiffs, resulting from the medical malpractice 34 of all defendants.” MCL 600.1483(1) (emphasis added). Based on the language of this provision, it appears that the legislature has made the cap cumulative in nature. In effect, the cap applies to the verdict as a whole and not to the verdict for each plaintiff against each defendant. The exceptions to the general cap have been substantially limited and no longer include exceptions for death, intentional torts, foreign objects wrongfully left in the body, the wrongful removal of limbs or organs, or the prevention of discovery of a claim as a result of the health care professional’s fraud. Only three limited exceptions to the general cap remain: 1. The plaintiff, as a result of the negligence of one or more defendants, suffers an injury to the brain or spinal cord rendering the plaintiff a hemiplegic, paraplegic, or quadriplegic and resulting in the functional loss of one or more limbs. 2. As a result of the negligence of one or more defendants, the plaintiff suffers permanent impairment of cognitive capacity that both prohibits the plaintiff from making independent, reasonable life decisions and permanently renders him or her incapable of performing the activities of normal daily life. 3. The plaintiff suffers a permanent loss or damage to a reproductive organ that renders him or her unable to procreate. Claims that fall within these exceptions to the general cap are subject to a second cap. Pursuant to MCL 600.1483(1), the cap for noneconomic damages for these claims is $500,000, adjusted yearly (for example, $795,500 in 2017, $1,016,000 for 2024). While the trier of fact is required to designate damages as damages for economic and noneconomic loss, the jury may not be informed about the caps. MCL 600.6304(5). It is the court’s duty and responsibility to reduce an award of damages in excess of one of the limits set by the statute. Id. 35 The applicable 1483 damage cap is applied at the time judgment is entered, not at time the claim accrues, when the complaint is filed, etc. You’ve learned a great deal over the course of the term. I am proud of you and you should be proud of yourself. Study hard and make your own good luck. Prof. Chad Engelhardt 36