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Michigan Supreme Court Ruling Protects Victims of Malpractice

7 comments

For years, the State of Michigan has been hostile to victims’ rights. This has been particularly true in the area of medical malpractice, where state law imposes complex procedural requirements on injured people. Until just recently, failure to follow these requirements exactly meant that a victim of malpractice would lose his or her case, even if the error was seemingly inconsequential.

One of the most contentious aspects of Michigan’s medical malpractice is the "notice of intent." Before a malpractice victim can commence a lawsuit, he or she must put the potential defendants on notice and allege very specific violations of the standard of care. The problem is that the notice of intent must be filed before any discovery is conducted, when the victim has very little information available. As a result, it is not uncommon for minor errors or inconsistencies to be present in the notice of intent. In years past, those minor deficiencies often resulted in the dismissal of otherwise valid malpractice cases.

Lately, however, the Michigan Supreme Court has helped protect victims of malpractice by looking past technicalities to the merits of the underlying case. Last year, the Supreme Court ruled that a defective notice of intent filed within the statute of limitations period was sufficient to prevent a claim from being time-barred. Last Wednesday, the Court ruled that defendant providers must challenge the adequacy of a notice of intent within 63 days. The recent order will prevent defendants from waiting until the last minute to raise a procedural challenge, and it makes it more likely that injured malpractice victims will be able to correct any error within the statute of limitations period. All of this means that more people will get the chance to let a jury decide the outcome of their case.

Even with these favorable rulings, medical malpractice is a complicated area of the law. If you or a loved one has been injured by the professional negligence of a health care provider, you need an experienced attorney to help guide you through this legal obstacle course.

7 Comments

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  1. Jim O'Hare AIC AIS VP med mal claims says:
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    WE use a notice of intent in florida that requires an affidavit from an expert and pertinent medical records. During this perior, each side does it’s due diligence. It concludes with either a denial of the claim, or an offer. The hope is to target cases prior to suit for disposition. Good intent but doesnt work for this purpose.

    It does give some credibility to the plaintiffs case, alot of the time it is just a blunderbluss approach to invite everyone into a potential suit until plaintiff attys whittle down the playing field.

    In Michigan, aren’t the records requested and reviewed by an expert prior to service of the NOI to determine if there is a case?
    if not, what is the purpose?
    regards Jim

  2. Devon Glass says:
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    Jim:

    You are correct that in Michigan the medical records are available to both parties prior to a lawsuit being filed. Once the records are received, they are reviewed by a doctor who practices in the same professional field as the doctor who is alleged to have been negligent, ie, if an orthopedic surgeon is alleged to have committed malpractice than an orthopedic surgeon would review the medical records to determine if there is a claim for malpractice to pursue. If the doctor believes there is a valid claim, that is when a notice of intent is filed because it is only at that point do we, as plaintiff attorneys, have support for a claim of negligence.

    You will be unsurprised to learn that the doctor who is alleged to be negligent almost always disagrees with the opinion of the doctor who has reviewed the medical records for the plaintiff’s attorney. The attorneys who represent the doctor review the medical records and also have them reviewed by a doctor, not the alleged negligent doctor, to see if there is any merit to the claim. This doctor will usually find the allegedly negligent doctor did nothing wrong.

    The review of records prior to litigation does result in settlements, but very rarely. Before a lawsuit can be filed in Michigan, a doctor, usually the same one of reviewed the records initially, has to sign an affidavit stating their opinion there was malpractice committed.

    The purpose of the notice of intent review period is to facilitate negotiations, but that rarely happens. It can often solidify either sides position to take the case forward.

  3. Steve Lombardi says:
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    I truly don’t understand this “notice of intent” and why the legislature believes it’s even necessary. Does Michigan require the NOI in every kind of personal injury claim revolving around professional negligence? Why not the lawyers, accountants, architects, engineers, nurses or any other licensed professional? Is the NOI required only in medical negligence cases involving physicians? It appears to be just one more hurdle that increases the cost, complexity and technical nature of what are already the most comoplex, technical and costly cases. Perhaps it would be better to just hand each doctor 3 Get Out Of Jail Free cards. They get three strikes after which they join the rest of us fixing cars, trucks, mowing grass, cleaning houses, waiting tables and sitting for a cup of coffee while we watch another medical brick and mortar project get erected.

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    WHY? because when ex-gov engler ran this state he gave priveleges and immunities to corporations,insurance co.,doctors and hospitals at the expense of people!

  5. Jim O'Hare AIC AIS VP med mal claims says:
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    RE Notice of Intent.
    I am sure that you bounce any potential case off an expert prior to truly accepting a case, so what is the big deal? The truth is that it is not hard to get a physician to provide a NOI for most claims. The NOI also protects you from a frivelous claim. In general a good idea but falls short of its intent.

    NOI – Provides credibility beyond the plaintiff atty’s assessment of what med mal is. It does hold down some bogus claims.

    I just closed a file- a voluntary discontinuance from a 2003 case. I paid $195k in LAE to get to the point where the plaintiff atty gives up the ghost on a bogus claim.

    The NOI in florida has a doc stating that the claim has merit, that he has not been convicted of fraud in any jurisdiction, nor had any opinion tossed by a court. A doc of similar specialty. this makes sense. The doc should comment on the damages and the causation as well. Why not? you need these opinions anyway.
    regards jim

  6. Mark Bello says:
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    Jim: While I agree with much of what you say (the expert will be needed anyway), the bone of contention is that this is a requirement that seems to have been carved out for malpractice claims, alone. Why the special consideration? To settle cases? That is it’s stated intent, but that rarely happens. To assure that the cases have merit before filing? Contrary to popular belief, lawyers typically file serious lawsuits in serious situations and the notice of intent requirement is often an unnecessary and expensive hurdle to filing only one type of lawsuit.

  7. Jim O'Hare med mal claims guy says:
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    Mark:
    Why the special consideration? Because it is medical malpractice and not a fender bender.

    If it was accounting malpractice, would you as an atty, have the ability to pick out the accounting negligence? REquiring an expert is reasonable and gives credibility by having a doc diagnosing bad medicine and not a lay person- the atty.

    Seems like common sense, how would a general atty know his way around a medical record, the abbreviations connected to the science, in order to determine liability ,causation and damages.

    Merit opinions before filing is a great reason for presuit experts. It keeps some TT attys from wasting their money on a case w/o merit.

    I just paid $225k from a 2003 case and just last week the atty for the TT said , you know what, never mind. His expert got around to taking a closer look among all the defendants. I should not have been there.

    Many times, every doc that had anything to do with treating the patient is invited into the lawsuit; until the actual culprits of the med mal get found out. Wouldnt want to let the statute run and miss a primary tortfeasor,with a big policy,thereby opening myself up to a legal malpractice suit.

    Thats different- right?

    Serious lawsuits are filed by lawyers in serious situations? really Mark? People have horrible pain and suffering and die horrible deaths every day in the normal course of life, but there must be malpractice in there someplace.

    If nothing else it is just good manners.
    regards jim