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by Daniel J. Schulte, J.D.
MDA Legal Counsel
Published in the November 2004 issue of the Journal

Dear Dan Schulte: My malpractice insurer tells me Michigan has good malpractice reform statutes in place and that the Michigan Supreme Court upheld some of them recently. Can you tell me more about these cases?

Answer: Prior to the end of its most recent term (July 30, 2004), the Michigan Supreme Court rendered five significant decisions in cases that had challenged our malpractice tort reforms. Here are the details.

  • Phillips vs. MIRAC, Inc., et al. (Medical Malpractice Noneconomic Damages Cap). This case involved the constitutionality of a statute that caps the amount of noneconomic damages (e.g., pain and suffering, emotional distress, etc.) that plaintiffs may recover from rental car companies for injuries arising from an automobile accident. The Supreme Court upheld the constitutionality of this damages cap. This decision is significant for Michigan dentists because the plaintiffs were attacking the constitutionality of the rental car damages cap. They used the same arguments (that the damage cap is an unconstitutional denial of a plaintiff’s right to a jury trial, a violation of equal protection and/or due process) that would have been considered by the Supreme Court had it been considering the constitutionality of the medical malpractice non-economic damages cap. Just such a case made it only as far as the Court of Appeals in 2002. With this ruling, questions regarding constitutionality of the medical malpractice damages cap should be settled.
  • Jenkins vs. Patel (Medical Malpractice Noneconomic Damages Cap). The Supreme Court in this case enforced the applicability of the medical malpractice noneconomic damages cap in cases brought pursuant to Michigan’s Wrongful Death Act (i.e., anytime the patient dies prior to the resolution of the case). The plaintiff argued that since the case was brought pursuant to Michigan’s Wrongful Death Act, the medical malpractice noneconomic damages cap did not apply. The Michigan Court of Appeals agreed with the plaintiff and upheld a $10 million verdict. The Supreme Court reversed, ruling that the medical malpractice noneconomic damages cap applies in all medical malpractice cases — even those brought pursuant to Michigan’s Wrongful Death Act. The effect of this ruling was to reduce the portion of the $10 million verdict attributable to the plaintiff’s noneconomic damages to the current amount of the medical malpractice non-economic damages cap (approximately $400,000).
  • Roberts vs. Mecosta County General Hospital, et al. (Notice of Intent). The Notice of Intent is the filing by the plaintiff that begins the malpractice case. The statute requiring the filing of the Notice of Intent contains a list of specific information that must be included. The purpose is to put the defendant on notice of the facts surrounding the alleged malpractice. In this case the Supreme Court ruled that plaintiffs must strictly comply with detailed requirements of the statute. The failure to so comply means that the statute of limitations on the plaintiff’s claim will continue to run.
  • Grossman v. Brown/Halloran vs. Bhan (Expert Witness Qualifications). The plaintiff in this case attacked the expert witness qualification statute. This statute requires that the board certifications, experience, training, etc., of the plaintiff’s expert witness and the defendant’s expert witness must exactly match. In this case, they did not exactly match. The Supreme Court strictly construed and enforced the expert witness qualification statute and reversed the decision of the Court of Appeals, which would have allowed the plaintiff’s expert witness to testify despite not having the matching board certification, experience, training, and so forth.
  • Estate of Shinholster vs. Annapolis Hospital (Medical Malpractice Non-economic Damages Cap/Comparative Negligence). The Court affirmed the principle that the comparative negligence of the plaintiff (e.g., the plaintiff’s failure to regularly take prescribed medication) may be considered by the jury in a medical malpractice case and be used to reduce the amount of a verdict.
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