Blockades to Justice

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The Michigan legislature, under the mantra of "tort reform," has also enacted other barriers to prevent injured patients from obtaining justice and to ensure that judicial relief is economically prohibitive. A few examples of these barriers to justice include:

"Notice of Intent" and Mandatory 6-Month Pre-Lawsuit Waiting Period

A statute bars an injured patient from filing a medical malpractice lawsuit for at least 6 months. It requires the injured patient and the patient's attorneys to conduct a thorough investigation of the medical care - relying only on the medical records provided by the hospitals and doctors. Very often these medical records have been altered, falsified, or tampered with by the hospitals or doctors who know they erred and thus seek to destroy, discard, or conceal all evidence of the errors.

After the careful medical review, the patient's attorneys prepare and send to all potential defendants a comprehensive document called a "Notice of Intent to File Claim" (NOI). Though the patient only has his or her medical record (which is often corrupted or incomplete) and no access to those who witnessed the errors, the law demands a precise, accurate, and complete NOI. The NOI must describe in detail the factual basis for the claim, the standards of practice applicable to each defendant, the precise manner in which each defendant breached his or her standards of practice, and the action that each defendant should have taken to comply with the standard. If an error is unknown, omitted, or misidentified in the NOI, it can never be corrected or raised (according to statutory interpretation by Michigan appellate courts).

After this comprehensive document is delivered to all potential defendants, the injured patietn must then wait 182 days (i.e. 6 months) before a Michigan court will accept the filing of a medical malpractice lawsuit. MCL 600.2912b.

The advocates of "tort reform" persuaded Michigan legislators to adopt this blockade as a sensible tool for resolution. Advocates asserted the mandatory waiting period would give potential defendants an opportunity to properly evaluate the claim and promptly resolve those claims with merit. The "frivolous " claims, meanwhile, would be flushed out and kept out of the courthouse.

Not surprising, the promises and justifications for "tort reform" have proven to be false and hallow. The medical malpractice insurers and negligent hospitals and doctors never, ever, settle claims during this waiting period - regardless of merit. Instead they use this period to thwart all claims, and to obtain a complete medical history of the patient in a quest to find dirt or manufacture defenses.

Sworn and Precise Affidavits from Medical Experts Must Be Attached to the Lawsuit Complaint

In addition to the NOI and mandatory 6-month waiting period, the statute also requires an injured patient to locate and hire a qualified medical expert against each defendant. MCL 600.2169 & MCL 600.2912d. The qualified medical experts must prepare and provide sworn affidavits confirming that the defendant doctor (or medical facility) committed malpractice and supporting the injured patient's claims of error. Each affidavit must articulate how the defendant doctor (or medical facility) breached the standard of care. This requirement presents many challenges.

First, it requires the injured patient to find qualified doctors who are willing to testify against a peer. It is virtually impossible to find a willing doctor in Michigan and generally requires finding qualified and willing doctors in other states.

Moreover, the expert's qualifications cannot be more or less than the defendant's qualifications but must be equal. As you can imagine, the process of finding doctors and securing the mandatory affidavits is a great challenge. The process is further complicated because information in medical records is often missing, incomplete, or inaccurate, and competent experts will never sign sworn statements without assurance of complete and accurate information of what happened.

The sworn affidavits must be attached to the complaint when the lawsuit is filed or the court will not accept the lawsuit.

The blockades to justice don't end when the claim is finally accepted as a lawsuit by a court. The defendants and their trial lawyers will continue to hunt for even the tiniest technical flaw in the NOI, affidavits of merit, or lawsuit complaint. If they happen to find a flaw, which can occur, they will never disclose it early (for fear it may properly be corrected) but instead will lie in wait and raise the technical flaw only after the statute of limitations would have otherwise expired. They employ these wily and sneaky tactics successfully and are encouraged to do so by Michigan's very conservative and insurance friendly judiciary.

The purported "reforms" are not only extraordinary impediments to the filing of a medical malpractice claim but they also create unjust results and grossly inadequate recoveries.

Please also see the description of Michigan's arbitrary limits in a medical malpractice case on damages.