One Court of Justice

In lieu of granting leave to appeal, the Michigan Supreme Court reversed the August 28, 2012 Court of Appeals judgment in Estate of Kerin LaJoice v Northern Michigan Hospitals Inc., et al. In so doing, the Court reaffirmed several prior rulings establishing that a defective notice of intent (“NOI”) filed after the statute of limitations period has run does not toll the wrongful-death saving provision under MCL 600.5852. 

LaJoice involves a malpractice claim brought by the decedent’s estate against the hospital and various physicians.  Here, the defective NOI was filed after the statute of limitations had expired but before the expiration of the wrongful-death savings statute.  The trial court dismissed the plaintiff’s claim with prejudice after finding that the NOI was defective and did not constitute a good-faith attempt to comply with MCL 600.2912(b).  The Court of Appeals reversed the trial court’s ruling reasoning.  It held that the NOI constituted a good-faith attempt to comply with MCL 600.2912(4) and, further, that any amendment of the NOI would relate back to the time the original NOI was filed, under the rule established in Bush v. Shabahang, 484 Mich. 156 (2009).  However, the Supreme Court noted an important difference distinguishing this case from the facts presented in Bush.  Here, unlike in Bush, the defective notice of intent was filed after the statute of limitations had expired.  The Court has already decided that issue—a late-filed defective notice of intent does not toll the wrongful-death savings period. 

Justice Cavanagh dissented and noted that, just as he expressed in his dissenting opinion in Waltz v. Wyse, 469 Mich. 642 (2004), he believes that MCL 600.5856 applies to toll the wrongful-death saving period.  He notes that the plain language of the statute establishes that filing a complaint tolls the limitations period.  Therefore, despite any defects in the plaintiff’s notice of intent, filing of the complaint tolled the wrongful-death saving period.  Accordingly, Justice Cavanagh writes that this plaintiff should be permitted to amend the notice of intent and proceed with the lawsuit.

In Kincaid v. Cardwell, the Court of Appeals reaffirmed that a physician’s mere adherence to his initial misdiagnosis or erroneous treatment plan does not give rise to a new accrual date for the purposes of the statute of limitations in medical-malpractice cases.  Because Michigan’s legislature abrogated the “last treatment” rule and the plaintiff in this case failed to plead specific dates of acts and omissions sufficient to establish a new accrual date for her claims, the trial court properly dismissed the plaintiff’s malpractice claims as untimely. Read more »

In the three cases consolidated under Lucas v. Awaad, the plaintiffs alleged that their doctor intentionally made false diagnoses in order to increase billing.  The Michigan Court of Appeals determined that the plaintiffs’ claim under the Michigan Consumer Protection Act (“MCPA”), MCL 445.901 et seq. was barred by the MCPA’s exemption for transactions specifically authorized by law, see MCL 445.904(1)(a), since the practice of medicine is specifically authorized and regulated by law. See Smith v. Globe Life Ins. Co., 460 Mich. 446, 465; 597 N.W.2d 28 (1999).  Read more »

A patient sued a hospital and two doctors for medical malpractice, alleging that their failure to operate on her leg in a timely manner made it necessary to amputate her leg below the knee.  The hospital and one of the doctors settled with her for $195,000.  Because the other doctor did not participate in the settlement, the patient continued her suit against him, and a jury awarded her a verdict of more than $1.524 million against the doctor.  The award was itemized, as required by statute, to show that the verdict included about $124,000 were for economic damages and $1.4 million for non-economic damages (i.e., damages due to pain, suffering, physical impairment, and the like).  The circuit court set-off the settlement amount by subtracting it from the jury verdict (i.e., from the $1.524 million), concluded under what is known as the collateral-source rule that the patient would receive $0 in economic damages because she would receive that amount from other sources ( such as an insurer), and then applied the statutory cap on non-economic damages to award her $394,200 in non-economic damages.  In Velez v. Tuma, a 4-3 majority of the Michigan Supreme Court rejected the plaintiff’s argument that the set-off rule had been abrogated by statute and agreed with the defendant doctor that the set-off had to be applied before the cap on noneconomic damages, not after, thus reducing the plaintiff’s recovery from him by $195,000 she had received in settlement from the hospital and other doctor.

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Since 2005 Michiganlaw imposes liability for negligence causing the death of a non-viable fetus; but according to the Michigan Supreme Court, that was not the case when Mrs. Johnson’s obstetrician refused to perform a procedure that could have prevented the miscarriage of Baby Johnson.  In Johnson v. Pastoriza the Court held that the “fetus wrongful death act”—the only act that applied to death of a fetus at that time—requires an affirmative act to trigger liability, not just a negligent omission.  The refusal to perform a medical procedure was not an affirmative act.  Further, the 2005 amendment adding death of a fetus to the scope of the “universal wrongful death act”—where negligence does trigger liability—was not retroactive.  Joined by three other justices, Justice Zahra explained that generally statutes apply prospectively, in the absence of language to the contrary.  And the exception to that rule for “remedial” statutes—where retroactive effect would be presumed—does not apply to “remedial” statutes that affect substantive rights.  Here, the 2005 amendment to the universal statute expanded the substantive rights of plaintiffs upon death of a nonviable fetus, and contains no language expressing a legislative intent that it apply retroactively.  It therefore applies only prospectively.

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On Friday, April 13, 2012, the Michigan Supreme Court denied one application for leave to appeal and denied the defendant’s application to bypass the Court of Appeals in Smith v. Department of Human Services Director (“DHS”), Case No. 144913.  Instead, the Court directed the Court of Appeals to decide the case on an expedited basis and to address: 1) if the circuit court erred in concluding that DHS  may not establish limits for the amount of time a person may receive welfare benefits; and, if so, 2) whether plaintiffs are therefore entitled to summary disposition on the alternate ground that defendant filed to comply with the Administrative Procedures Act, MCL 24.201.  Justice Markman would have granted defendant’s motion to bypass the Court of Appeals as he considers the case a matter of “considerable consequence” for the constitutional system of separation of powers.  As Justice Markman noted, the trial court enjoined the executive authority from terminating the eligibility of certain welfare recipients.  This case involves approximately $7 million in welfare benefits paid by the state each month that may not otherwise have been paid if DHS is allowed to implement the contested eligibility requirements. Read more »

On Friday, the Michigan Supreme Court held that Bush v. Shabahang only applies to cases where the plaintiff filed the notice of intent (“NOI”) after the 2004 amendment of MCL 600.5856.  In Johnson v. Hurley Medical Group, P.C., No. 141793, the plaintiff filed a NOI that failed to state how the alleged breach of the standard of care was the proximate cause of plaintiff’s injury.  The Genesee County Circuit Court granted summary disposition for the defendants holding that plaintiff’s NOI was defective under MCL 600.2912b and did not toll the statute of limitations. 

The Court of Appeals reversed the trial court’s order concluding that under the MCL 600.2301 and the Michigan Supreme Court’s decision in Bush v. Shabahang, 484 Mich. 156 (2009), the plaintiff could amend her NOI retroactive back to the date it was filed.  Our post on the Bush decision is here.  The Supreme Court disagreed, and reversed the Court of Appeals in lieu of granting leave to appeal.  The Court reinstated the decision of the Genesee County Circuit Court and held that Bush decision only applies to cases affected by 2004 amendment of MCL 600.5856.  Here, plaintiff filed the defective NOI in 2000.  Additionally,  MCL 600.2301 is only applicable where a case is pending and, in this case, because plaintiff’s NOI did not comply with the content requirements of MCL 600.2912b(4), no action could be commenced. Read more »

In Szyszlo v Akowitz, No. 299570, the Court of Appeals concluded that at the time plaintiff filed his medical-malpractice suit, he was a real party in interest, even though he filed bankruptcy between the accrual of his claim and the filing of his lawsuit.  The plaintiff avoided losing his interest during bankruptcy by claiming a valid exemption for the first $18,450 recouped from the lawsuit under Section 522(d)(11)(D) of the Bankruptcy Code, “which provides for an exemption for a ‘payment . . . on account of personal bodily injury.’”  The Court also determined that the plaintiff was not judicially estopped from seeking more than $15,000 in the lawsuit, even though the plaintiff listed the market value of the potential lawsuit as $15,000 at the time he filed for bankruptcy.  In short, the plaintiff’s bankruptcy did not end or limit the defendants’ malpractice liability. Read more »

In Hoffman v Barrett, No. 289011, decedent’s estate and personal representative brought a malpractice claim against defendant-physician for providing negligent emergency-room treatment.  The trial court dismissed the plaintiff’s claim without prejudice for failure to file an adequate affidavit of merit under MCL 600.2912d.  The Court of Appeals affirmed.  The Michigan Supreme Court vacated the Court of Appeals decision, and directed the Court of Appeals to reconsider its opinion in light of Ligons v Crittenton Hospital, 490 Mich 61; 803 NW2d 271 (2011).  Ligons held that, under the Michigan Supreme Court’s previous decision in Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004), a medical malpractice action must be dismissed with prejudice if a defective affidavit of merit is filed after the expiration of both the statue of limitations and the wrongful-death savings statute, MCL 600.5852.  On remand, the Court of Appeals held that Ligons did not affect its previous decision.  Read more »

It was discovered that, in the statutorily-required affidavit of merit that accompanied a plaintiff’s notice of intent to bring a medical malpractice claim for misdiagnosis of an x-ray, the expert had been provided with later x-ray film of the plaintiff, and not the x-ray film that had been allegedly misdiagnosed.  Indeed, it appears that x-ray film at issue could not be located by either party.  The trial court concluded that without the misdiagnosed x-rays, the expert’s opinion of a misdiagnosis was speculative and dismissed plaintiff’s complaint.  In Kalaj v. Kahn, the Court of Appeals reversed and found that plaintiff had provided a statutorily sufficient affidavit of merit.  Specifically, the court noted that plaintiff’s expert had concluded that he did not need the allegedly misdiagnosed x-rays to render his opinion, but instead could reach that opinion based upon plaintiff’s symptoms and other x-rays taken around the same time as those taken by defendant.  Judge Borrello’s opinion noted that such an opinion is all that is necessary to satisfy the statutory requirement for an affidavit of merit, and that even though the expert relied on circumstantial evidence to reach his conclusion, that does not mean that his testimony (without the benefit of reviewing the x-rays in question) would be inadmissibly speculative.   Thus, the Court of Appeals reinstated plaintiff’s complaint and remanded the case for further proceedings.