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Legal Services

by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the December 2003 issue of the Journal

Question: Please summarize the current malpractice reform laws and advise whether they have been upheld by the courts.

Answer: Although space limits a complete listing of all of the laws, the following summarizes the most important ones and the appellate court rulings with respect to them. Significantly, all malpractice reform laws dating from the 1990s (including those not covered in this article) have been upheld by the Michigan Supreme Court and/or the Michigan Court of Appeals.

Non-Economic Damage Limitation. Non-economic damages (such as pain and suffering) are limited to $280,000, unless an exception applies, in which case the limit increases to $500,000. These limits are subject to consumer price index adjustments. The three exceptions focus on the severity of injury and include (1) permanent paralysis from brain or spinal cord damage; (2) permanent impairment of cognitive capacity; or (3) permanent loss of a reproductive organ. The cap applies on a per-incident basis, rather than to each individual defendant.

Status: The Michigan Court of Appeals recently upheld the constitutionality of this statute. No appeal has been taken to the Michigan Supreme Court.

Expert Witness Qualifications. If the defendant doctor is a specialist, the expert witness must have specialized at the time of the occurrence in the same specialty. If the defendant is board-certified, the expert witness must also be board-certified in the same specialty. In addition, the expert must have devoted more than 50 percent of his or her professional time during the year immediately preceding the occurrence to the active clinical practice of that specialty and/or teaching that specialty. If the defendant is a general practitioner, the expert must have devoted more than 50 percent of his or her professional time during the year immediately preceding the date of the occurrence to the active clinical practice as a general practitioner and/or teaching general practice.

Status: The Michigan Supreme Court has upheld the constitutionality of this statute.

Pre-Suit Notice of 182 Days. A malpractice action may not be commenced unless the claimant has given the potential defendant written notice not less than 182 days before the action is commenced. The notice must set forth:

  • the factual basis for the claim;
  • the applicable standard of practice alleged by the claimant;
  • the manner in which the standard of practice was breached;
  • the action that should have been taken to achieve compliance with the standard of practice;
  • the manner in which the breach was the proximate cause of the injury; and
  • the names of all health professionals and facilities notified.

Status: The Michigan Court of Appeals has upheld the constitutionality of this statute. The notice tolls the statute of limitations, which means it does not run during the 182 days. The court also held that tolling does not occur if the notice is not in compliance with the statute, and this could result in the expiration of the statute of limitations.

Affidavit of Merit. The plaintiff must file an affidavit of merit with the complaint. The affidavit must be signed by a health professional who meets the qualifications required under the expert witness statute. The affidavit must certify that all treatment records have been reviewed and contain a statement as to the applicable standard of care, an opinion that the standard was breached, the action that should have been taken or omitted to have complied with the standard, and the manner in which the breach was a proximate cause of the injury. The defendant must file a similar affidavit of meritorious defense within 91 days after the plaintiff has filed the affidavit of merit.

The Michigan Supreme Court has upheld this statute, and has further held that failure to comply renders a complaint ineffective and subject to dismissal. The statute of limitations continues to run and the claim could be barred if a proper affidavit is not filed.

Statute of Limitations/Minors. A person 8 years of age or less must commence a malpractice action on or before that person's 10th birthday, except with respect to a claim which involves an injury to the person's reproductive system, in which event the minor plaintiff may commence an action up to his or her 15th birthday.

Thereafter, the adult statute of limitations applies, which is two years from the alleged act of malpractice, or six months from discovery, whichever is later, subject to limited exceptions.

Status: The Michigan Court of Appeals has upheld the constitutionality of this statute and the Supreme Court has denied leave to appeal.

Statute of Repose. The claim of a competent adult must be brought within six years of the alleged malpractice or the claim is barred, regardless of whether or when the plaintiff had knowledge of the alleged malpractice.

Status: The Court of Appeals has upheld this statute and the Supreme Court denied leave to appeal.

Thanks and farewell
On a personal note, I should add that this is my last "Dentistry and the Law" column for the MDA Journal. It has been my pleasure to write the column for the past 11 years. Beginning next month, my partner, Dan Schulte, will take over as MDA legal counsel and also as author in this space.

The MDA thanks Dick Weber for his longtime service to the association and offers best wishes on his retirement.

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