HOW MICHIGAN MEDICAL MALPRACTICE TORT REFORM LEGISLATION HAS FARED IN MICHIGAN COURTS

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1 HOW MICHIGAN MEDICAL MALPRACTICE TORT REFORM LEGISLATION HAS FARED IN MICHIGAN COURTS TORT REFORM STATUTE OF LIMITATIONS FOR MINORS MCL Bissell v Kommareddi, 202 Mich App 578 (1993) Constitutionality of the reduced statute of limitations period applicable to claims by minors. constitutionality of the reduced statute of limitations period applicable to claims by minors. Yes. On 12/6/93 the Supreme Court STATUTE OF REPOSE MCL a(2) Sills v Oakland General Hospital, 220 Mich App 303 (1996) Constitutionality of the statute of repose (with certain exceptions, this statute places an ultimate limit on the time period in which a claim can be filed equal to 6 years from the date of the alleged malpractice). Court of Appeals upheld constitutionality of the statute of repose. Yes. On 12/30/97 the Supreme Court NOTICE OF INTENT MCL b Neal v Oakwood Hospital, 226 Mich App 701 (1997) Constitutionality of the Notice of Intent requirement and the effect of a failure to file the Notice of Intent on the Plaintiff s case. constitutionality of the Notice of Intent requirement and held that the failure to comply with this requirement requires dismissal of the Plaintiff s case. 12/12/97 Court of Appeals decision stands as binding Fournier v Mercy Community Hospital, 254 Mich App 461 (2002 ) Effect of a failure to properly serve the Notice of Intent on the running of the statute of limitations. a Notice of Intent served in violation of the statute is ineffective and therefore the statute of limitations continues to run (it is not tolled ). Yes. On 10/18/03 the Supreme Court {17002/9999/DT DOC;7}

2 Roberts v Mecosta County Hospital, 240 Mich App 175 (2000) The effect of the Defendant s failure to object to a defective Notice of Intent prior to the filing of the Plaintiff s complaint. there was a waiver exception to the Notice of Intent requirement. If the Defendant did not object to a defect in the Notice of Intent prior to the filing of the Plaintiff s complaint the objection to the defect was waived Yes. On 4/24/02 the Supreme Court overruled the Court of Appeals by holding that there is no such waiver exception to the Notice of Intent requirement. Rheaume v Vandenberg, 232 Mich App 417 (1998) The effect of the Plaintiff s failure to identify the physician by name in the Notice of Intent. categorical descriptions of defendants and the naming of John Doe Defendants does not comply with the requirements of the Notice of Intent statute. Yes. On 11/9/99 the Supreme Court Roberts v Mecosta County Hospital, Docket Nos , , Should strict compliance be the standard applied by the courts when reviewing a Notice of Intent or should some lesser standard be applied? Court of Appeals approved of the Notice of Intent in this case despite it not strictly complying with the statutory requirements. Yes. On July 21, 2004 the Supreme Court held that a Notice of Intent must strictly comply with all the requirements of the Notice of Intent statute. Driver v Cardiovascular Clinical Associates Whether a defective Notice of Intent may be amended after the statute of limitations has expired. Court of Appeals allowed the amendment even after the statute of limitations had expired. Yes. On August 1, 2011 the Supreme Court held that the defective Notice of Intent may not be cured and refilled after the statute of limitations had expired. AFFIDAVITS OF MERIT MCL d and MCL e Bartlett v North Ottawa Community Hospital, 244 Mich App 685 (2001) Constitutionality of the Affidavit of Merit requirement. Court of Appeals held the Affidavit of Merit requirement is constitutional. Yes. On 11/16/01 the Supreme Court {17002/9999/DT DOC;7} 2

3 Scarsella v Pollak, 461 Mich 547 (2000) The effect of the Plaintiff s failure to file an Affidavit of Merit with the Complaint. a Complaint filed without an Affidavit of Merit does not stop ( toll ) the running of the statute of limitations on the Plaintiff s claim. 3/28/00 Court of Appeals decision stands as binding Kowalski v Fiutowski, 247 Mich App 156 (2001) The effect of the defendant s failure to file an Affidavit of Merit. default is not required for a Defendant s failure to file an affidavit of merit but default could be an appropriate remedy. 8/17/01 Court of Appeals decision stands as binding Holmes v Michigan Capital Medical Center, 242 Mich App 703 (2000) The effect of the Plaintiff s failure to file an Affidavit of Merit that is sworn as required by the statute. an un-sworn Affidavit of Merit does not comply with the requirements of the statute and is insufficient to stop the running of the statute of limitations on the Plaintiff s claim. Yes. On 10/30/01 the Supreme Court Kirkaldy v Rim 478 Mich 581 (2007) Whether a defective Affidavit of Merit tolls the statute of limitations. statute of limitations was not tolled by filing a defective Affidavit of Merit and dismissed the case with prejudice. No. The Supreme Court held on July 11, 2007 that the statue of limitations was tolled and a defective Affidavit of Merit should result in dismissal without prejudice. Hanna v Merlos Whether an Affidavit of Merit may be serendipitously filed. an Affidavit of Merit may be serendipitously filed. Yes. On April 13, 2012 the Supreme Court reversed the Court of Appeals and held that an Affidavit of Merit must actually be filed with the Complaint. {17002/9999/DT DOC;7} 3

4 EXPERT WITNESS MCL McDougall v Elivk, 218 Mich App 501 ( 1996 ) Constitutionality of the expert witness requirements. the expert witness requirements were an unconstitutional violation of the Supreme Court s rule making authority. Yes. On July 30, 1999 the Supreme Court overruled the Court of Appeals and held that the expert witness requirements were not such an unconstitutional violation. Grossman v Brown/Halloran v Bahn Whether board certifications of the plaintiff's and defendant's expert witnesses are required to exactly match. the board certifications are not required to exactly match. Yes. On July 20, 2004 the Supreme Court reversed the Court of Appeals and held that the board certifications must match. Reeves v Carson City Hospital Whether an expert must have the same board certification as the defendant physician when the defendant physician was practicing another specialty at the time of the alleged malpractice. an irrelevant board certification is not required to be held by an expert witness. No. On February 1, 2008 the Supreme Court upheld the Court of Appeals decision allowing an expert without a board certification matching the defendant physician s to testify. Jilek v Stockson Whether the board certifications of the plaintiff and defendant s expert witnesses must match. The Court of Appeals held that the board certification of the plaintiff s expert could match only the type of medicine being practiced at the times of the alleged malpractice. Yes. On December 31, 2011 the Supreme Court reversed the Court of Appeals and held the board certifications of the experts must match. {17002/9999/DT DOC;7} 4

5 NON-ECONOMIC DAMAGES CAP MCL Zdrojewski v Murphy, 254 Mich App 50 (2002) Constitutionality of the noneconomic damages cap. the non-economic damages cap is constitutional. 11/15/02 Court of Appeals decision stands as binding precedent Note, however, on July 6, 2004 the Supreme Court upheld the constitutionality of the damages cap applicable to vicarious liability actions against auto lessors in Phillips v MIRAC. The arguments raised in that case were the same as those that would have been considered by the Supreme Court in the Zdrojewski case had that case reached the Supreme Court. MSMS filed an Amicus Brief in that case. Jenkins v Patel, 256 Mich App 112 (2003) Estate of Shinholster v Annapolis Hospital The applicability of the noneconomic damages cap to wrongful death actions. Whether the higher medical malpractice non-economic damages cap ($500,000 + CPI) should apply even though none of the exceptions to the application of the lower cap existed at the time the verdict was rendered. the non-economic damages cap does not apply to wrongful death actions. The Court of Appeals held that a plaintiff could have the benefit of the higher medical malpractice non-economic damages cap even though the exceptions to the application of the lower cap were not met at the time the verdict was rendered. Yes. On July 26, 2004 the Supreme Court held that the medical malpractice non-economic damages cap does apply in cases brought pursuant to the Wrongful Death Act. No. On July 30, 2004 the Supreme Court held that the higher non-economic damages cap is applicable if one of the exceptions to the lower cap exists at any time not just at the time the verdict is rendered. Thorn v Mercy Memorial Hospital, et. al. Whether costs to replace household services of a decedent are non-economic damages limited by MCL The Court of Appeals held these costs were economic and not the loss of society and companionship of the decedent. No. On July 7, 2009 the Supreme Court denied Leave to Appeal. This will result in plaintiff s claiming the loss of society and companionship is economic and not subject to MCL {17002/9999/DT DOC;7} 5

6 Velez v Tuma Whether a jury award is reduced to the cap amount before settlement payments of joint tortfeasors are applied. Jury verdicts must be reduced to the cap first and then be further reduced by settlement payments. Yes. On July 24, 2012 the Supreme Court held that settlement payments must be applied after a jury verdict has been reduced to the cap. JOINT AND SEVERAL LIABILITY MCL d and MCL Markley v Oak Health Care Investors, 255 Mich App 245 (2003) The continued allowance of a setoff against a medical malpractice verdict in an amount equal to that previously paid by another defendant who is jointly and severally liable. continued allowance of such a set-off. Yes. No further appeal has been taken. The 2/7/03 Court of Appeals decision stands as binding COLLATERAL SOURCE MCL (1) Heinz v Chicago Road Investment Co, 216 Mich App 289 (1996) Constitutionality of the statute s requirement that a plaintiff s recovery of certain damages from a collateral source be admissible and reduce the amount of a verdict against a defendant. constitutionality this requirement. Yes. The Supreme Court denied leave to appeal. The 4/12/96 Court of Appeals decision stands as binding VENUE MCL Karpinski v St John Hospital- Macomb Center, 238 Mich App 539 (1999). Interpretation of anti-forum shopping statute that in part places venue (i.e. the county where the case is to be tried) where the original injury (i.e. the malpractice) occurred. in wrongful death cases, original injury refers to the malpractice that is alleged to have resulted in death. Therefore venue would properly be in the county where the malpractice occurred. 11/16/99 Court of Appeals decision stands as binding LOSS OF OPPORTUNITY MCL a(2) Wickens v Oakwood Healthcare System, 212 Mich App 385 (2000) Availability of loss of opportunity to survive damages to a living plaintiff. a living plaintiff may not recover for loss of an opportunity to survive. Yes. On 9/11/01 the Supreme Court affirmed the Court of Appeals decision and denied a motion for rehearing. {17002/9999/DT DOC;7} 6

7 O Neal v St. John Hospital & Medical Center, et. al. Availability of loss of opportunity to achieve a better result damages. Court of Appeals dismissed the case finding that the requirements of MCL (a) were not met. No. On 7/31/10 the Supreme Court held this was a traditional medical malpractice case and that it does not matter whether MCL (a) s requirements are met. This is a dangerous precedent which may cause a lesser burden of proof of proximate causation. {17002/9999/DT DOC;7} 7

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