Articles

THE PROVERBIAL PENDULUM STARTS IT’S SWING BACK: HOUSE BILL NO. 4571 WOULD RELAX THE PROCEDURAL REQUIREMENTS FOR MEDICAL MALPRACTICE CASES

by James W. Low

On March 12, 2009, Michigan State House Representative Mark Meadows (D-East Lansing) introduced House Bill No. 4571 which was thereafter referred to the House Standing Committee on Judiciary. The Bill, as currently drafted, would significantly revise the procedural aspects of Michigan’s Tort Reform Laws relating to Medical Malpractice actions. Generally, the Bill would affect the law on the qualifications of expert witnesses, the Notice of Intent as well as the Affidavits of Merit and Affidavits of Meritorious Defense.

Procedural History

House Bill No. 4571 was originally introduced in June, 2008 as House Bill No. 6277 by State Representative Mark Meadows (D-East Lansing). At that time, it was referred to the House Standing Committee on Judiciary where testimony in support of and in opposition to the Bill was taken. Entities that supported the Bill included the Negligence Law Section of the State Bar of Michigan and the Michigan Association for Justice. Groups that opposed the Bill included American Physicians Assurance, the Insurance Institute of Michigan, Michigan State Medical Society, Michigan Chamber of Commerce, Michigan Health and Hospital Associations, Chapter of American Academy of Pediatrics, Beaumont Hospitals, and the Michigan Osteopathic Association. The legislature ran out of time to consider the Bill, but it was reintroduced by Mark Meadows as House Bill No. 4571 in 2009.

Expert Witnesses

Currently, in a medical malpractice action, only a licensed health care professional with exact qualifications of the Defendant, can serve as an expert witness as to the appropriate standard of care. House Bill No. 4571 will eliminate the requirement that the qualifications of the expert match exactly. Specifically, it will eliminate the requirement that the proposed expert witness be board certified in the same specialty as the Defendant. Rather, it would require that the proposed expert practice the same type of medicine which the Defendant specializes in. If a Defendant is a general practitioner, the Bill would mandate that the proposed expert witness would have more than de minimis experience as a general practitioner in the area relevant to the malpractice claim. In addition, proposed experts that devote the majority of their time to instruction of students would no longer be required to teach in the same specialty as the Defendant. Rather, the proposed expert would be required to instruct in a relevant specialty. Furthermore, the Bill would significantly increase the penalties for experts that testify on a contingent basis from 90 days in jail and a $500 fine to one year in jail and a $10,000 fine.

In addition, the Bill would revise the discovery that can be sought from expert witnesses. The Bill specifies that the financial records of the expert that relate to their income as acting as an expert witness are discoverable only by leave of Court. Also, information possessed by a family member of the expert concerning the time the expert spends engaged in the practice of his or her profession would not be discoverable unless the family member was employed by the expert witness or by the entity that employed the expert witness.

Notice of Intent

Currently, prior to commencing an action for medical malpractice in Michigan, the Plaintiff must provide notice to health care professionals or facilities via a written Notice of Intent. At present, the law does not allow corrections to a non-conforming Notice of Intent to “relate back” to the date it was originally served. Furthermore, there are currently no time limits on a Defendant’s ability to object to an insufficient Notice of Intent. This currently allows a Defendant to wait until after the limitations period has passed to challenge the sufficiency of the Notice of Intent. Under House Bill No. 4571, the process to the challenge a Notice of Intent would more closely mirror the process to challenge the sufficiency of a Complaint under 2.116 (C) (8) as an amendment is allowed if the Notice of Intent is found to be defective and the amendment relates back to the original service date of the Notice of Intent.

The Bill would require that an objection to the form or contents of a Notice of Intent be made by Motion, filed within 28 days after service of the Complaint. If an objection is not filed within the 28 day period, all objections to the Notice of Intent would be waived. A Motion objecting to the Notice of Intent would have to identify each specific defect that is being claimed. Also under the Bill, if the Court determines that the Notice of Intent did not comply with the requirements in the statute, the Court would have to allow Plaintiff 14 days to amend the Notice of Intent to correct the defects. The Amended Notice of Intent would relate back to the date of the original Notice of Intent.

Furthermore, if Defendant fails to respond to the Notice of Intent within the 154 day time period, Defendant would waive any objection to the form and content of the Notice of Intent. The amendment and relation back provisions also apply to the responses to the Notice of Intent filed by the Defendant.

Affidavits of Merit and Affidavits of Meritorious Defense

In House Bill No. 4571, the party would have 28 days from the date of service to file an objection to an Affidavit of Merit or Affidavit of Meritorious Defense. An objection not timely filed would be waived. A party whose Affidavit was found to be insufficient would have 56 days to correct the deficiencies. The Amended Affidavit would relate back to the original filing date of the Complaint. In addition, an objection that the health care professional who signed the Affidavit of Merit did not meet the specialty requirements, would be waived if Defendant did not identify the relevant specialty or board certification in their response to the Notice of Intent. Also, if Plaintiff files an Amended Complaint that sets forth claims arising out of the original action or occurrence in the original Complaint, no additional Affidavit would need to be filed unless ordered by the Court. In addition, under the Bill, Defendants would no longer be able to sign Affidavits on their own behalf.

Statute of Limitations

House Bill No. 4571 would revise the tolling of the Statute of Limitations. Currently, the Statute of Limitations in a medical malpractice action is tolled when the Notice of Intent is served if during that time period, the claim would be barred by the Statute of Limitations. In the Bill, the Statute of Limitations would be tolled for 182 days from the date the Notice of Intent is served.

If House Bill No. 4571 is passed, it is likely to have a significant impact on medical malpractice actions. The Bill would relax many of the procedural grounds on which the Michigan Court of Appeals and Michigan Supreme Court have dismissed cases in the past without addressing their merits. This Bill and the presence of Justice Hathaway on the Michigan Supreme Court are likely to make it more favorable for Plaintiffs to file medical malpractice actions in Michigan.