LAW OFFICES OF
GLM
G ARAN LUCOW M ILLER, P.C.
_______________________________________
HANDBOOK OF MICHIGAN
MEDICAL MALPRACTICE
LAW
_______________________________________
12th Edition, 2012
Revised December 15, 2011
_______________________
A MANUAL
FOR ATTORNEYS, CLAIMS MANAGERS AND
LEGAL ASSISTANTS
____________________________
Ian C. Simpson
1111 WEST LONG LAKE ROAD, SUITE 300
TROY, MICHIGAN 49098-6333
248.641.7600
[email protected]
LAW OFFICES OF
GLM
G ARAN LUCOW M ILLER, P.C.
MEETING YOUR DEFENSE LITIGATION NEEDS IN MICHIGAN
AND INDIANA
INTERNET: www.garanlucow.com
DETROIT:
KENT COUNTY:
1000 WOODBRIDGE STREET
DETROIT, MI 48207-3192
313.446.1530 or 800.875.1530
FAX: 313.259.0450
171 MONROE AVENUE NW, SUITE 102
GRAND RAPIDS, MI 49503
616.732.5330 or 800.494.6312
FAX: 616.742.5566
OAKLAND COUNTY:
GENESEE COUNTY:
1111 WEST LONG LAKE ROAD, STE. 300
TROY, MICHIGAN 49098-6333
248.641.7600 or 800.875.3700
FAX: 248.641.0222
8332 OFFICE PARK DRIVE
GRAND BLANC, MI 48439-2035
810.695.6488 or 800.875.3700
FAX: 810.695.6488
W ASHTENAW COUNTY:
INGHAM COUNTY:
101 NORTH MAIN STREET, SUITE 801
ANN ARBOR, MI 48104-1400
734.930.5600 or 800.878.5600
FAX: 734.930.0043
504 SOUTH CREYTS ROAD, SUITE A
LANSING, MI 48917
517.327.0300 or 888.910.0300
FAX: 517.327.0309
ST. CLAIR COUNTY:
UPPER PENINSULA:
511 FORT STREET, SUITE 505
PORT HURON, MI 48060-3922
810.985.4400 or 800.875.4400
FAX: 810.985.4107
1440 WEST RIDGE STREET
MARQUETTE, MI 49855
906.226.2524 or 888.841.7772
FAX: 906.226.3068
GRAND TRAVERSE COUNTY:
INDIANA:
1131 EAST EIGHTH STREET
P.O. BOX 3150
TRAVERSE CITY, MI 49685-3150
616.941.1611/FAX: 616.941.4420
8401 VIRGINIA STREET
MERRILLVILLE, INDIANA 46410
219.756.7901 or 877.804.2801
FAX: 219.756.7902
Copyright 2012 by Ian C. Simpson. All rights reserved. No part
of this book may be reproduced or utilized in any form or by any
means, electronic or mechanical, including photocopying, recording
or by any information storage and retrieval system, without
permission in writing from the author. Address all inquiries to:
IAN C. SIMPSON
G ARAN L UCOW M ILLER , P.C.
1111 West Long Lake Road, Ste. 300
Troy, Michigan, 48098-6333
248.641.7600
Toll free: 800.875.7600
Direct: 248.952.6456
[email protected]
Table of Contents
______________________
Preface. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
I.
Duty in Medical Malpractice Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
A.
Duty In a Professional Health Care Relationship... . . . . . . . . . . . 1
B.
The “Standard of Care”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
C.
Theories of Recovery.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
D.
Vicarious Liability, Respondeat Superior & Agency. . . . . . . . . . 18
E.
Statutory & Regulatory Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
F.
HMO & PPO Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
II.
Medical Malpractice Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
Pre Suit Procedural Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
Commencement of an Action.. . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Service of a Summons & Complaint.. . . . . . . . . . . . . . . . . . . . .
D.
Appearance for a Party. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E.
Answering the Complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F.
Amending Pleadings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
G.
Court Scheduling Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
H.
Frivolous Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I.
Previously Litigated Matters . . . . . . . . . . . . . . . . . . . . . . . . . . .
27
27
30
38
40
40
42
43
44
45
Causation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
Cause in Fact.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
Proximate (Legal) Cause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Aggravation of Preexisting Conditions. . . . . . . . . . . . . . . . . . . .
47
47
49
52
Damages & Allocation of Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
Damages Burden of Proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
Types of Recoverable Damages. . . . . . . . . . . . . . . . . . . . . . . .
C.
Damages Caps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D.
Joint & Several Liability & Allocation of Fault. . . . . . . . . . . . . . .
E.
Insurance, Collateral Sources & Setoffs.. . . . . . . . . . . . . . . . . .
F.
Wrongful Death Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
G.
Mitigation of Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
H.
Interest as a Part of Damages . . . . . . . . . . . . . . . . . . . . . . . . .
53
53
54
57
58
62
64
66
66
III.
IV
V.
Defenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
A.
Affirmative & Special Defenses. . . . . . . . . . . . . . . . . . . . . . . . . 67
B.
Statutes of Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
i
C.
D.
E.
F.
Tolling the Statute of Limitations . . . . . . . . . . . . . . . . . . . . . . . .
Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Comparative Negligence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Other Defenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
72
78
81
82
Discovery.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
Informal Discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
Formal Discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Privileges Against Discovery. . . . . . . . . . . . . . . . . . . . . . . . . . .
D.
HIPAA Federal Privacy Rule. . . . . . . . . . . . . . . . . . . . . . . . . . .
E.
Sanctions for Failure to Provide Discovery or Misconduct. . . . .
85
85
87
89
94
95
VI.
VII.
Motion Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
A.
Motion Practice Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
B.
Motions Filed as First Responsive Pleading.. . . . . . . . . . . . . . 100
C.
Discovery and Procedural Motions.. . . . . . . . . . . . . . . . . . . . . 101
D.
Motions for Summary Disposition.. . . . . . . . . . . . . . . . . . . . . . 102
E.
Pre Trial Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
VIII.
Case Evaluation, Offers of Judgment & Alternative Dispute Resolution
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
A.
Case Evaluation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
B.
Offers to Stipulate to Entry of Judgment. . . . . . . . . . . . . . . . . 109
C.
Alternative Dispute Resolution. . . . . . . . . . . . . . . . . . . . . . . . . 109
IX.
Expert & Opinion Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
Qualifications of Medical Standard of Care Experts. . . . . . . . .
B.
General Expert Qualification Requirements. . . . . . . . . . . . . . .
C.
Other Expert Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
111
111
113
116
Admission of Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
Witness Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
Admission of Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Admission of Statutes, Regulations, Policies & Procedures. . .
D.
Selected Rules of Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . .
121
121
123
124
125
Settlements & Dismissals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
Settlement Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
Release Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Reporting of Settlements. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D.
Dismissals of Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E.
Contribution Rights Among Tortfeasors. . . . . . . . . . . . . . . . . .
133
133
134
136
136
137
X.
XI.
ii
XII.
Trial Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
General Trial Procedure.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
Trial Stipulations & . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Motions in Limine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D.
Voir Dire.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E.
Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F.
Witness Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
G.
Trial Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
H.
Jury Instructions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
I.
Supplemental & Non Standard Jury Instructions. . . . . . . . . . .
J.
Forms of Verdict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
139
139
141
142
143
144
144
145
146
149
151
Post Trial Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
Post Trial Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
Taxation of Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Judgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
D.
Contribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
E.
Execution of Judgments.. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
F.
Relief from Judgment or Order. . . . . . . . . . . . . . . . . . . . . . . .
153
153
157
163
165
166
167
XIII.
XIV.
Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
XV.
Appeals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
A.
Appeals Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
B.
Appeals as of Right. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
C.
Applications for Leave to Appeal. . . . . . . . . . . . . . . . . . . . . . .
D.
Bonds & Stays of Proceedings.. . . . . . . . . . . . . . . . . . . . . . . .
E.
Appellate Briefs & Oral Argument. . . . . . . . . . . . . . . . . . . . . .
F.
Precedential Effect of Decisions. . . . . . . . . . . . . . . . . . . . . . .
G.
Finality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
171
171
172
172
172
172
173
173
XVI.
Related Areas of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
A.
Insurance Law Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
B.
Types of Insurance Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . 176
C.
Bad Faith of Insurer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
D.
OSHA & MIOSHA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
E.
Physician Credentialing & Licensing Disputes. . . . . . . . . . . . . 179
F.
EMTALA (Federal Emergency Medical Treatment and Active Labor
Act.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180
G.
Maintaining Patient Records. . . . . . . . . . . . . . . . . . . . . . . . . . 182
H.
Indemnity Actions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
I.
Civil Rights Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
iii
XVII.
Index. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 186
Preface
______________________________
This 12th edition again includes all new Michigan Supreme Court and
Court of Appeals decisions interpreting medical malpractice law and
related areas of litigation law. Many unpublished cases are also
included. Although they do not have precedential value, they often
provide invaluable analysis of the relevant published decisions. 2011
has been a relatively quiet year for Michigan medical malpractice
law, with only a handful of published decisions this past year.
The contents of this handbook are continuously revised as new case
law becomes available. An electronic version of the most recent this
handbook which can be instantly searched by key words and
hyperlinks is available upon request, or by visiting
www.garanlucow.com.
The complexity of Michigan statutory and case law requires a
practitioner to be well versed in the law of medical malpractice
litigation in Michigan. This handbook is intended to help in that
process. It is intended to provide a more than basic understanding
of not only Michigan medical malpractice law, but related areas of
Michigan civil litigation. However, this handbook is not a formal legal
opinion. Rather, it is an edited accumulation of authority, including
statutes, court rules and case law pertinent to the medical
malpractice field. The law cited is subject to interpretation and
conflicting opinion. It is simplified to fit handbook form. This
handbook is not a substitute for individual analysis or research as to
the law in any particular case.
IAN C. SIMPSON
iv
I.
Duty in Medical Malpractice Cases
_____________________
A.
B.
C.
D.
E.
F.
Duty In a Professional Health Care Relationship
The “Standard of Care”
Theories of Recovery
Vicarious Liability, Respondeat Superior & Agency
Statutory & Regulatory Law
HMO & PPO Liability
________________________________
A.
Duty In a Professional Health Care Relationship.
Duty is Created by Special Relationships Between Parties. A threshold
question in any case is whether any duty was owed to the plaintiff. The next
question is the nature of the duty owed. Duty arises from a special relationship
beyond just “being there.” Whether there is a duty is a question of law for the Court
to decide. A duty will not be imposed unless it is foreseeable that the actor’s
conduct may create a risk of harm. Where the court determines that a duty does
exist, the nature and extent of the duty under the circumstances is generally for the
jury to decide. Moning v Alfono, 400 Mich 425, 438 (1977). Simko v Blake, 448 Mich
648, 655; 532 NW2d 842 (1995). A duty arises from a relationship “between the
parties of such a character that social policy justifies” its imposition. Prosser &
Keeton, Torts (5th ed), § 56, p 374. In determining whether to impose a duty, a
Court must evaluate several factors, including the relationship between the parties,
the foreseeability of harm, the burden on the defendant in imposing a duty, and the
nature of the risk of harm from the conduct complained of in the action. Murdock v
Higgins, 454 Mich 46, 53; 559 NW2d 639 (1997). Buczkowski v McKay, 441 Mich
96, 100-101; 490 NW2d 330 (1992). Dyer v Trachtman, 470 Mich 45, 49; 679
NW2d 311 (2004). Where there is a special relationship, the duty of reasonable
care extends to those parties who are readily identifiable as being foreseeably
endangered Graves v Warner Bros, 253 Mich App 486, 492; 656 NW2d 195 (2002).
Where no special relationship is established, there is no duty. A physician in a
public place has no duty to help a person who is ill, even though the person may
die. Oja v Kin, 229 Mich App 184, 187, 581 NW2d 739 (1998).
Health Care Providers Subject to Medical Malpractice Law. A professional
relationship sufficient to support a claim of medical malpractice exists where a
licensed health care professional, licensed health care facility, or the agents or
employees of a licensed health care facility, are subject to a contractual duty that
requires the professional, facility, or agents or employees of the facility, to render
professional health care services to the plaintiff. Bryant v Oakpointe Villa Nursing
Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004). Dyer v Trachtman, 470 Mich
45; 679 NW2d 311 (2004). Delahunt v Finton, 244 Mich 226, 230; 221 NW 168
1
(1928). Hill v Kokosky, 186 Mich App 300, 302-303; 463 NW2d 265 (1990). Oja v
Kin, 229 Mich App 184, 187; 581 NW2d 739 (1998). Adkins v Annapolis Hospital,
420 Mich 87, 94-95 (1984). Medical malpractice law applies to all actions against
state licensed health care professionals and also non-licensed health care providers
employed by a licensed health care facility. MCL 600.5838a. A “Licensed health
facility or agency” means a health facility or agency licensed under article 17 of the
Public Health Code, MCL 333.20101 to 333.22260. The Code defines a "licensed
health care professional" as an individual licensed or registered under article 15 of
the Public Health Code, MCL 333.16101 to MCL 333.18838. The licensure
requirement for pharmacists is in article 15, MCL 333.17711. MCL 333.20106(1)
provides that “health facility or agency” means (a) An ambulance operation, aircraft
transport operation, non-transport pre-hospital life support operation, or medical first
response service. (b) A clinical laboratory. (c) A county medical care facility. (d) A
freestanding surgical outpatient facility. (e) A health maintenance organization. (f)
A home for the aged. (g) A hospital. (h) A nursing home. (i) A hospice. (j) A hospice
residence. (k) A facility or agency listed in subdivisions (a) to (h) located in a
university, college, or other educational institution. Before MCL 600.5838 was
amended in 1986, the following professionals were expressly identified as covered
when providing medical care and treatment: interns, residents, registered nurses,
licensed practical nurses, registered physical therapists, clinical laboratory
technologists, anesthetists, x-ray technicians, hospitals, licensed health care
facilities, employees or agents of a hospital or licensed health care facilities, or any
other state licensed health professional. MCL 600.5838a refers generally to a
“licensed health care professional, licensed health facility or agency, or an
employee or agent of a licensed health facility or agency who is engaging in or
otherwise assisting in medical care and treatment . . .” as being subject to, at the
least, the medical malpractice statute of limitations. Bell v Mikkola, 193 Mich App
708, 709-710; 485 NW2d 143 (1992). Bronson v Sisters of Mercy Health Corp, 175
Mich App 647, 650-652; 438 NW2d 276 (1989). Whitney v Day, 100 Mich App 707,
712; 300 NW2d 380 (1980). MCL 600.5838a does not, however, define what
constitutes a medical malpractice action. Bryant v Oakpointe Villa Nursing Ctr, Inc,
471 Mich 411, 432; 684 NW2d 864 (2004).
Physician Patient Relationship Required for Medical Malpractice. Malpractice
is the negligent performance by a physician or surgeon of the duties devolved and
incumbent upon him on account of his contractual relations with his patient.”
Delahunt v Finton, 244 Mich 226, 230; 221 NW 168 (1928). Bryant v Oakpointe Villa
Nursing Centre, Inc, 471 Mich 411, 423; 684 NW2d 864 (2004). A physician-patient
relationship is a pre-requisite to any medical malpractice cause of action. Maiden
v Rozwood, 461 Mich 109, 119, 131, 597 NW2d 817 (1999). Smith v Kowalski, 223
Mich App 610, 613, 567 NW2d 463 (1997). Welke v Kuzilla, 144 Mich App 245, 375
NW2d 403 (1987). Buczkowski v McKay, 441 Mich 96 (1992). In the absence of
such a relationship, the physician’s duty of care to act for the benefit of the patient
does not exist. Dyer v Trachtman, 470 Mich 45, 49-50; 679 NW2d 311 (2004). The
relationship is in the nature of a consensual contract, express or implied, under
which a patient seeks medical assistance and a physician agrees to render such
treatment. Medical malpractice is “the negligent performance by a physician or
surgeon of the duties devolved and incumbent upon him on account of his
2
contractual relations with his patient.” Tierney v University of Michigan Regents, 257
Mich App 681, 686; 669 NW2d 575 (2003). The relationship is created in three
basic ways: 1) accepting a person as a patient, 2) undertaking to examine and treat
a patient, or 3) an agreement to be "on call" or be available to provide medical care.
Zoterell v Repp, 187 Mich 319, 330, 153 NW 692 (1915). Lince v Monson, 363
Mich 135, 108 NW2d 845 (1961). Bronson v Sisters of Mercy, 175 Mich App 647,
438 NW2d 276 (1989). Danner v Holy Cross Hospital, 189 Mich App 397, 398, 474
NW2d 124 (1991). A professional relationship began once the patient’s parents
registered at the emergency room entrance and began waiting for treatment.
Krueger v Spectrum Health, (Unpublished, August 25, 2005). A physician-patient
relationship exists where a doctor renders professional services to a person who
has contracted for such services.” Hill v Koksky, 186 Mich App 300, 303; 463 NW2d
265 (1990). A physician must actively participate in the patient’s care or essentially
direct the course of the patient’s treatment. NBD v Barry, 223 Mich App 370; 566
NW2d 47 (1997). Oja v Kin, 229 Mich App 184, 187; 581 NW2d 739 (1998). Jaynes
v Ashraf (Unpublished, October 6, 2009).
Limited Duty to Third Persons. A physician generally has no duty to persons
other than patients. Paul v Plymouth General Hospital, 160 Mich App 537, 408
NW2d 492 (1987). Dyer v Trachtman, 470 Mich 45; 679 NW2d 311 (2004). Dorris
v Detroit Osteopathic Hosp Corp, 460 Mich 26, 45; 594 NW2d 455 (1999). Bronson
v Sisters of Mercy Health Corp, 175 Mich App 647, 652; 438 NW2d 276 (1989).
Further, there is generally no duty to protect third persons against criminal acts.
MacDonald v PKT, Inc, 464 Mich 322, 628 NW2d 33 (2001). Graves v Warner Bros,
253 Mich App 486, 492; 656 NW2d 195 (2002). However, there is a duty to third
person under some circumstances. MCL 330.1946(1) of the Mental Health Code
provides that if a patient communicates to a mental health professional treating the
patient a threat of violence against a reasonably identifiable third person and there
is an apparent intent and ability to carry out that threat in the foreseeable future, the
mental health professional has a duty to take action as prescribed in MCL
330.1946(2). The statute adds that “Except as provided in this section, a mental
health professional does not have a duty to warn a third person of a threat. . .” MCL
330.1946 does not entirely abrogate a common-law duty where no threat was
communicated. MCL 330.1946(1) only modifies a mental health professional’s
common-law duty to warn or protect a third person when a threat described in MCL
330.1946(1) is made. The statutory duty only arises only if three criteria are met: (1)
a patient makes a threat of physical violence, (2) the threat is against a reasonably
identifiable third person, and (3) the patient has the apparent intent and ability to
carry out the threat. If these three criteria are not met, the duty under the statute is
not triggered. The statutory language is not so comprehensive as to indicate that
it intended to completely abrogate the common law. Dawe v Dr. Reuven Bar-Levav,
485 Mich 20; 780 NW2d 272 (2010). A common-law duty exists generally to warn
third persons if a foreseeable danger to others is made known during a patient’s
treatment. Swan v Wedgwood Christian Youth & Family Services, 230 Mich App
190, 195; 583 NW2d 719 (1998). Hinkleman v Borgess Medical Center, 157 Mich
App 314, 403 NW2d 547 (1987). Bardoni v Kim, 151 Mich App 169, 390 NW2d 218
(1986). Sellers v United States, 870 F2d 1098 (6th Cir 1989). Chrile v United States,
564 FSupp 341 (ED Mich 1983). Duvall v Goldin, 139 Mich App 342, 362 NW2d 275
3
(1984). Waatti v Marquette General Hospital, 122 Mich App 44, 329 NW2d 526
(1982). The special treatment relationship must be sufficiently strong to require a
defendant to take action to benefit the injured party.” Murdock v Higgins, 454 Mich
46, 53-54, 559 NW2d 639 (1997). Moore v St. Joseph Nursing Home, Inc, 184 Mich
App 766, 768, 459 NW2d 100 (1990). Hospitals also owe a duty to a patient’s family
to take reasonable measures to prevent foreseeable harm. Shephard v Redford
Community Hospital, 151 Mich App 242, 390 NW2d 239 (1986).
Duty to Family Member Witnessing Malpractice. An immediate family member
within a “zone of danger” may recover if severe mental disturbance is caused from
witnessing a serious negligently inflicted, or threatened, injury. Nugent v Burmeister,
195 Mich App 158, 161 (1992). Wargelin v Sisters of Mercy, 149 Mich App 73
(1986). Gustafson v Faris, 67 Mich App 356 (1976). Henley v Dept of State, 128
Mich App 214 (1983).
Medical Malpractice Rules Differ From Other Claims. Medical malpractice
actions have a whole range of different statutory and common law rules which must
be followed. The essential question is whether the applicable standard of care was
adhered to by the Defendant. Bronson v Sisters of Mercy, 175 Mich App 647, 438
NW2d 276 (1989). The standard of care is established by qualified experts in the
applicable area of medicine and is separate and independent of any agreement or
contract. Expert testimony is almost always required to establish the standard of
care. All medical malpractice claims begin by mailing a pre-suit notice of intent to
the health care providers whose conduct is criticized. The statute of limitations is
two years, compared to three years in most negligence claims. Also, there are caps
on all non-economic damages.
Ordinary Negligence & Medical Care. Medical malpractice claims have two
defining characteristics. First, malpractice only occurs during the course of a
professional relationship. Second, claims of medical malpractice raise questions of
medical judgment. Where a claims raises only issues within the common knowledge
and experience of lay persons, it is an ordinary negligence even if a professional
relationship existed at the time. Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich
411, 432; 684 NW2d 864 (2004). Dorris v Detroit Osteopathic Hospital Corp, 460
Mich 26, 47, 594 NW2d 455 (1999). Weaver v University of Michigan Bd of
Regents, 201 Mich App 239, 242, 506 NW2d 264 (1993). Gold v Sinai Hospital of
Detroit, Inc, 5 Mich App 368, 370, 146 NW2d 723 (1966). Fogel v Sinai Hospital of
Detroit, 2 Mich App 99, 138 NW2d 503 (1965). In most medical malpractice claims
determining “reasonable and appropriate care” is impossible without experts
testifying as to the professional standards to be applied under the circumstances.
That is why malpractice claims are often termed “battles of the experts.” Medical
malpractice actions have special rules. However, a claim arising out of medical
treatment may be “ordinary negligence” if the circumstances do not involve the
exercise of professional judgment. In such cases, a jury can determine the
reasonableness of the conduct without expert testimony. Dyer v Trachtman, 470
Mich 45; 679 NW2d 311 (2004).
Differentiating “Ordinary” Negligence & Medical Malpractice. Negligent
dispensing of the wrong medication is malpractice as opposed to ordinary
4
negligence. Simmons v Apex Drug Stores, Inc, 201 Mich App 253; 506 NW2d 562
(1993), mod by Patterson v Kleiman, 447 Mich 429, 433-435 (1994). Becker v
Meyer Rexall Drug Co, 141 Mich App 481; 367 NW2d 424 (1985). Assessment of
the level of sterility and cleanliness needed for a patient is medical malpractice, but
failing to adequately and competently provide proper hygiene is ordinary
negligence. Davis v Botsford Gen. Hosp. (Unpublished, May 24, 2005). A claim of
breach of a duty to provide an “accident-free environment” is a claim of “strict
liability and cannot be maintained. Assessing the risk of positional asphyxiation
generally requires specialized knowledge and sounds in malpractice. A risk
assessment as to whether a bed rail creates a risk of entrapment or asphyxiation
generally requires knowledge of a patient’s medical history and behavior and
sounds in malpractice as it requires understanding and consideration of the risks
and benefits of particular restraints in light of a patient’s medical history and
treatment goals. Whether CENA’s were adequately trained to recognize any risks
posed by bed rails and other restraint systems requires expert testimony. If plaintiff
alleges a defendant responded inadequately to a risk, professional judgment may
be involved, but a claim that defendant knew of a risk and did nothing is ordinary
negligence and no expert testimony is needed as common knowledge and
experience may determine the issue. Bryant v Oakpointe Villa Nursing Ctr, Inc, 471
Mich 411, 432; 684 NW2d 864 (2004). Jackson v Harper Hosp. (Unpublished,
September 12, 2006). Injuries during transfers are malpractice where special
training is required to learn transfer techniques. Regalski v Cardiology Associates,
PC, 459 Mich 891; 587 NW2d 502 (1998). A claim may present mixed counts of
ordinary and professional negligence, depending upon which claims require
professional judgment. Billops v St. Anne’s Convalescent Ctr. (Unpublished,
03/09/04). Under what circumstances a dementia or other patient requires
supervision or restraint is beyond the ordinary layman’s knowledge, and involves the
exercise of judgment beyond the knowledge of ordinary lay persons. Waatti v
Marquette Gen Hosp, Inc, 122 Mich App 44, 49; 329 NW2d 526 (1982). Starr v
Providence Hosp, 109 Mich App 762, 766; 312 NW2d 152 (1981). The use of bed
rails is ordinary negligence. Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411,
432; 684 NW2d 864 (2004). A fall off an x-ray table is ordinary negligence. Estate
of Ginger v Battle Creek Health Systems (Unpublished, 06/04/02). A claim of injury
during transfer to a wheelchair is medical malpractice as lay persons do not know
the correct methods and techniques for transferring patients. Wiley v Henry Ford
Cottage Hosp, 257 Mich App 488; 668 NW2d 402 (2003). Having Plaintiff stand
against doctor’s orders is medical malpractice. Lewandowski v Mercy Memorial
Hosp. Corp. (Unpublished, December 8, 2003). Whether instruments are properly
sterilized is medical malpractice. Stoughton v Borgess Medical Ctr. (Unpublished,
December 5, 2003). Whether to interrupt an MRI and remove a patient, and the
extent the technician should maintain communication with the patient is medical
malpractice. Sfreddo v University of Michigan Regents, (Unpublished, August 19,
2004). Negligently assisting in moving from the bathroom to a bed, dealing with a
port-a-cath, and administering a heparin treatment are medical malpractice claims.
Campins, v Spectrum Health, (Unpublished, September 9, 2004). Claims that
nursing staff were “rude,” “unprofessional,” and failed to exercise due care, were
medical malpractice claims. Lindsey v St. John Health System, Inc. (Unpublished,
March 22, 2005). Alleged a failure and/or delay in treating a cardiac arrest and died
5
when on “full code” status is medical malpractice. Zacks v Tendercare, Inc.,
(Unpublished, July 28, 2005). Inadvertent injection of a toxic drug, Nystatin, rather
than administering it orally during cardiopulmonary resuscitation and nursing staff
supervision" are medical malpractice. Dennis v Specialty Select Hosp.-Flint
(Unpublished, September 29, 2005). An agent pushing or otherwise causing Plaintiff
to roll off a table while positioning him for an MRI is ordinary negligence. Howell v
Macomb MRI (Unpublished, October 11, 2005). Allegations of false representations
to induce Plaintiff to have a circumcision and a failure to inform of risks associated
with the procedure sound in medical malpractice. Dixon v Ambani, (Unpublished,
November 22, 2005). A claim that defendant gave the wrong medication sounded
in medical malpractice. Graham v Rite Aid Corp., (Unpublished, May 13, 2003). A
complaints that a dressing was applied too tightly after a bunionectomy, causing
prolonged pressure and permanent anatomical and neurological damage to the foot
raised questions of medical judgment, and was a medical malpractice claim. David
v Sternberg, 272 Mich App 377, 381; 726 NW2d 89 (2006). Alleged improper
management of an infection was malpractice. Sessoms v Bay Regional Medical
Center (Unpublished, August 22, 2006). A claim based upon a failure to obtain
informed consent require expert testimony. Rodgers v Syverson, (Unpublished,
September 19, 2006). Paul v Lee, 455 Mich 204, 212; 568 NW2d 510 (1997),
overruled on other grounds Smith v Globe Life Ins co, 460 Mich 446, 455-456 n 2
(1999). A delay in filling a prescription involved professional judgment. Woodward
Nursing Home, Inc, v Medical Arts, Inc., (Unpublished, January 24, 2006). Where
two nurse assistants lost their grip and dropped the decedent while moving her from
a bed to a wheelchair the claim was ordinary negligence as there was no criticism
of the decision to transfer, the type of retaining belt used, or how it was fastened.
Sheridan v West Bloomfield Nursing & Convalescent Ctr., Inc., (Unpublished, March
6, 2007). A claim that an aide abandoned an elderly resident who was known to be
at risk for falling was ordinary negligence. Harrier v Oakwood Skilled Nursing Center
(Unpublished, March 27, 2007). Leaving a surgical sponge in during surgery was
ordinary negligence. Small, v Wysong, (Unpublished, November 13, 2007).
Allegations that nursing staff were negligent in failing to properly respond to a “call
button” and failed to accurately report information that plaintiff was bleeding from
a catheter was medical malpractice. Aaron Sibley, Jr. v Borgess Medical Center,
(Unpublished, July 15, 2008). Where a pharmacist filled a prescription for 5 mg of
medication instead of 0.5 mg, the prescribed amount, was ordinary negligence.
Crozier v Henry Ford Hospital (Unpublished, December 11, 2008). An alleged
refusal to order an MRI, stated a claim of medical malpractice. Hetherington v Great
Lakes Orthopaedic Center, P.C. (Unpublished, March 17, 2009). A claim that the
defendant should have removed the entire guide wire from the breast after a biopsy
was medical malpractice. Harrington v Casale (Unpublished, October 19, 2010).
It was a question of medical judgment whether EMS personnel responded timely to
a 911 call. Lockwood v. Mobile Medical Response, Inc., LC, __ Mich __ (June 7,
2011). The placement of another individual’s medical records within the decedent’s
records raised questions of medical judgment beyond the realm of common
knowledge and experience. A mistaken dictation within the medical file of the
decedent raises the issue of whether the medical treatment of the decedent would
have been different as a result of any alleged error contained in the medical
documents and whether the decedent was harmed as a result. Zimmer v. Henry
Ford Wyandotte Hospital (Unpublished May 10, 2011).
6
Gravamen of a Claim Determines Whether it is Medical Malpractice. Medical
malpractice claims pled under different theories of recovery will generally be held
to “sound in” malpractice, including claimed “breaches of contract” relating to
medical treatment. All medical malpractice claims require adherence to medical
malpractice rules and procedure. David v Sternberg, 272 Mich App 377, 381; 726
NW2d 89 (2007). The factual background of a claim, and not its label, determines
whether a claim is medical malpractice. Tipton v William Beaumont Hosp., 266 Mich
App 27, 34; 697 NW2d 552 (2005). Awkerman v Orthopedic Group, 143 Mich App
722, 373 NW2d 204 (1985). A plaintiff cannot avoid the procedural requirements of
a medical malpractice action by simply couching the claim as something else.
Wilson v Stilwill, 411 Mich 587, 611; 309 NW2d 898 (1981). Stover v Garfield, 247
Mich App 456, 463-464; 637 NW2d 221 (2001), rev’d on other grounds, 446 Mich
887 (2002). Estate of Rayment v Northfield Place (Unpublished, March 16, 2004).
A contract claim against a nursing home is in fact a medical malpractice claim.
Woodward Nursing Home, Inc. v Medical Arts, Inc., (Unpublished, January 24,
2006). Actionable negligence may arise from a contractual relationship, as every
contract has a concurrent common-law duty to perform it with ordinary care, so
negligent performance constitutes a tort as well as a breach of contract. Fultz v
Union-Commerce Associates, 470 Mich 460, 465; 683 NW2d 587 (2004). Clark v
Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967).
Pharmacy Claims. Pharmacists are health care providers under MCL 333.17711
for the purposes of malpractice statutes and laws. Becker v Meyer Rexall Drug Co,
141 Mich App 481, 485; 367 NW2d 424 (1985). A complaint alleging a pharmacist
negligently dispensing the wrong medication is governed by malpractice statutory
requirements as opposed to ordinary negligence requirements. Simmons v Apex
Drug Stores, Inc, 201 Mich App 253; 506 NW2d 562 (1993), mod by Patterson v
Kleiman, 447 Mich 429, 433-435 (1994). Where the Defendant pharmacist filled a
prescription for 5 mg of medication instead of 0.5 mg, which was the prescribed
amount, the matter was one of ordinary negligence. Crozier v Henry Ford Hospital
(Unpublished, December 11, 2008). A delay in filling a prescription involved the
exercise of professional judgment. Woodward Nursing Home, Inc, v Medical Arts,
Inc., (Unpublished, January 24, 2006). Where a pharmacy technician erroneously
filled prescription for .125 mg tablets with 1 mg tablets, and neither the pharmacy
nor its non-pharmacist employee technician qualified as a licensed professional or
a licensed health facility, the claim was for ordinary negligence and the general
three year statute of limitations applied instead of the two year medical malpractice
period of limitation. Kuznar v Raksha Corp., 481 Mich 169, 750 NW2d 121 (2008).
As the licensure requirement for pharmacies appears in article 15 of the Public
Health Code, (MCL 333.17741), and not article 17, a pharmacy does not qualify as
a "licensed health facility or agency" subject to malpractice actions, as set forth in
MCL 600.5838a(1).
Independent Medical Examination Liability. An IME physician has a limited
physician-patient duty to perform an examination in a manner so as not to cause
physical injury to the examinee. If an injury results from an IME, there can be a
claim for “ordinary” negligence. Dyer v Trachtman, 470 Mich 45; 679 NW2d 311
(2004). Generally, an IME physician does not undertake to treat a person, and while
7
acting for a third party is not liable for any alleged damages resulting from any
conclusions the IME physician reaches or reports. Rogers v Horvath, 65 Mich App
644, 647, 237 NW2d 595 (1975). Becker v Meyer Rexall Drug Company, 141 Mich
App 481, 367 NW2d 424 (1976). Gordin v Beaumont Hospital, 180 Mich App 488,
447 NW2d 793, lv den 434 Mich 877 (1990). Higgins v Detroit Osteopathic Hospital,
154 Mich App 752, 398 NW2d 520 (1986). VanSickle v McHugh, 171 Mich App
622, 626-627, 430 NW2d 799 (1988).
Informal Consults Not Treatment. Informal consultations (“curb side consults”),
such as telephone calls, where advice is given without reviewing records or
examining the patient, do not establish a physician-patient relationship or duty of
care. Hill v Kokosky, 186 Mich App 300, 463 NW2d 265 (1990). NBD Bank, et al v
Barry, et al, 223 Mich App 370 (1997). Merely listening to another physician’s
description of a patient problem, and then offering an opinion, is not enough to
create a duty where there is no agreement to treat and only informal assistance is
provided. If, however, a physician is on call and a discussion takes place regarding
the patient’s symptoms, diagnosis, and treatment, a physician-patient relationship
has been held to exist. On-call status alone is not enough to create implied consent
to a physician-patient relationship. There is a “spectrum” of involvement. Oja v Kin,
et al, 229 Mich App 184 (1998).
B.
The “Standard of Care”
Standard of Care Generally. Professional negligence or “malpractice” is generally
defined as the failure to do something which a physician in the same specialty, of
ordinary learning, judgment or skill, would do, or would not do, under the same or
similar circumstances that existed in a particular case. M Civ JI 30.01. In a medical
malpractice action, expert witnesses are required to establish this “standard of
care.” Locke v Pachtman, 446 Mich 216, 223, 521 NW2d 786 (1994). A party
offering such expert testimony must demonstrate that the witness knows the
applicable standard of care. Turbin v Graesser (On Remand), 214 Mich App 215,
217, 542 NW2d 607 (1995). The standard of care is based on how other physicians
in the defendant's field of medicine would act, not how any particular physician
would act. Carbonell v Bluhm, 114 Mich App 216, 224, 318 NW2d 659 (1982).
Expert testimony must establish both the applicable standard of care, and that it
was more likely than not that the defendant breached that standard. Wiley v Henry
Ford Cottage Hosp, 257 Mich App 488; 668 NW2d 402 (2003). A physician is held
to a specialist’s standard, if practicing in that specialty at the time of the alleged
malpractice. Siirila v Barrios, 398 Mich 576 (1976).
Codified Burden of Proof. MCL 600.2912a(1) codifies the requirements of a
malpractice action. The statute varies slightly from the common law. It requires a
plaintiff to prove that the defendant, based upon the state of the art at the time,
failed to comply with the standard of practice for defendant’s specialty as
reasonably applied in light of facilities available in the community under the
circumstances. For non-specialists, the standard of practice is that within the
community, or a similar community. The failure to adhere to the standard of care
must have been a proximate cause of the injury and the lost opportunity to survive
8
or achieve a better result must be greater than 50%. MCL 600.2912a(1). Cudnick
v William Beaumont Hospital, 207 Mich App 378, 382-3 (1994). Wickens v Oakwood
Healthcare, 242 Mich App 385, 619 NW2d 7 (2000). In a medical malpractice case,
the plaintiff bears the burden of proving all of the following: (1) the applicable
standard of care, (2) breach of that standard by defendant, (3) injury, and (4)
proximate causation between the alleged breach and the injury. Wischmeyer v
Schanz, 449 Mich 469, 484, 536 NW2d 760 (1995). Locke v Pachtman, 446 Mich
216, 222, 521 NW2d 786 (1994). Evidence of a bad result alone is not enough. Paul
v Lee, 455 Mich 204, 211-213, 568 NW2d 510 (1997), overruled on other grounds,
Smith v Globe Life Ins Co, 460 Mich 446, 455-456, 597 NW2d 28 (1999). Where
Plaintiff’s expert was qualified by specialty, but not as to the standard of care “in
light of the facilities available in the community or other facilities reasonably
available under the circumstances” as required under MCL 600.2912a(1)(b), the
defect could have been remedied during the trial, so a directed verdict at the outset
of trial was improper. Lowery v Beer (Unpublished, February 24, 2009).
Personal Standards are Irrelevant. The standard of care is based upon how a
reasonable physician would act under the circumstances, and not how any
particular doctor would act. It is generally improper for an expert to testify about the
appropriate standard of care from the basis of what he or she would have personally
done in the situation. Young v Faremouth (Unpublished, July 26, 2007). Morrissey
v Grosinger (Unpublished, May 26, 2000). Cudnik v William Beaumont Hosp, 207
Mich App 378, 382, 525 NW2d 891 (1994). Carbonell v Bluhm, 114 Mich App 216,
224, 318 NW2d 659 (1982). May v Beaumont Hospital, 180 Mich App 728, 761, 448
NW2d 497 (1989).
Errors in Judgment. An error in judgment alone is insufficient to support a finding
of medical malpractice. Zanzon v Whittaker, 310 Mich 340 (1945). Coats v Bussard,
94 Mich App 558, 563 (1980). Where defendant's request for a “no guarantor”
charge was apparently focused on the position that a physician is not liable for an
error of judgment if the physician has acted within the appropriate standard of care
was not error. Jones v Porretta 428 Mich 132, 144; 405 NW2d 863 (1987).
Nonspecialist Standard of Care. MCL 600.2912a(1)(a) provides that a if the
defendant is a general practitioner, Plaintiff must show that the defendant failed to
conform to the recognized standard of acceptable professional practice or care in
the community in which the defendant practices or in a similar community. An
expert familiar with the standard of care in a community may testify concerning that
standard of care even if the expert has not practiced in the community. Bahr v
Harper-Grace Hospitals, 448 Mich 135, 141; 528 NW2d 170 (1995). Further, the
statute does not require a non-local expert “to contact physicians in one area to
determine the applicable standard of care in that community or to determine
whether that community is similar to another community.” Turbin v Graesser (On
Remand), 214 Mich App 215, 219; 542 NW2d 607 (1995). A family practitioner was
qualified under MCL 600.2912a(1)(a) even though he was not a general practice
physician, and was not familiar with the standard of care in the area were the
defendant practiced where plaintiff’s counsel submitted evidence that Oakland
County and Palm Beach County, Florida were similar in population, number of
9
hospitals and practicing family physicians. The practice of a family practitioner and
a general practitioner are alike in that neither practices a specific branch of
medicine. “General practitioner” is defined as “‘a medical practitioner whose practice
is not limited to any specific branch of medicine.’” Decker v Flood, 248 Mich App 75,
83; 638 NW2d 163 (2001), Random House Webster’s College Dictionary (1997).
“Family practice” is defined as a “medical specialization in general practice that
requires additional training and leads to board certification.” Random House
Webster’s College Dictionary (2001). For the purpose of MCL 600.2169, a board
certified family practitioner is qualified under MCL 600.2169(1)(c) to testify against
a doctor who is a general practitioner. Robins v Garg, 276 Mich App 351; 741
NW2d 49 (2007).
Specialist Standard of Care. MCL 600.2169(1)(a) provides that if the criticized
health care provider is a specialist, an expert witness must specialize in the same
specialty and if the specialist is board certified, the expert witness must be a
specialist who is board certified in that same specialty. A physician that can
potentially become board certified in a branch of medicine or surgery is a “specialist”
for purposes of MCL 600.2169(1). A “specialty” is a branch of medicine or surgery
in which one can potentially become board certified. The sole standard to be applied
is that of the one most applicable medical specialty. Halloran v Bhan, 470 Mich
572, 577; 683 NW2d 129 (2004). Expert witnesses must match the one most
relevant standard of practice or care-the specialty engaged in by the defendant
physician during the course of the alleged malpractice. Woodard v Custer, 476 Mich
545-559; 719 NW2d 842 (2006) and Hamilton v Kuligowski, (the companion case).
Tate v Detroit Receiving Hosp, 249 Mich App 212, 218; 642 NW2d 346 (2002). In
Jilek v. Stockson, M.D., __ Mich __ (December 21, 2011), the Michigan Supreme
Court reversed the Court of Appeals and held that the appropriate standard of care
was “family practice” because the defendant physician was board-certified solely in
family medicine, even though he was practicing urgent care medicine at the time of
the alleged malpractice. MCL 600.2912a properly allows the jury to consider that
standard of care in light of the facilities available to the defendant physician — an
urgent care center, not an emergency medical facility. Furthermore, Woodard v
Custer’s 476 Mich 545, 566 (2006), “one-most-relevant-specialty” test was
inappropriate to determine that Dr. Stockson was practicing emergency medicine,
and thus that she should have been held to the standard of care of an emergency
medicine specialist. Dr. Stockson was a “specialist,” in Family Practice medicine.
Nonphysician Local Standard of Care. If a defendant is a nurse or other nonphysician registered health care provider, the standard of care is the skill and care
ordinarily possessed and exercised by practitioners in the same or similar locality.
Bahr v Harper-Grace Hospitals, 448 Mich 135, 138 (1995). Because the language
of MCL 600.2169(1)(a) and (c), use the terms “specialist” and “general practitioner”
which can only apply to physicians, the only statutory provision applicable to nonphysician experts is MCL 600.2169(1)(b). That provision states that a qualifying
expert must have during the year immediately preceding the date of the occurrence,
have devoted a majority of professional time 1) in the active clinical practice and/or
the instruction of students in the same health profession as the person they are
testifying for or against, or 2) in the instruction of students in an accredited health
10
professional school or accredited residency or clinical research program in the same
health profession or specialty as the person they are testifying for or against. Cox
v Flint Board of Hospital Managers, 467 Mich 1, 19-20; 651 NW2d 356 (2002).
Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 492; 668 NW2d 402 (2003).
McElhaney v Harper-Hutzel Hosp, 269 Mich App 488, 490 n 1; 711 NW2d 795
(2006). Although MCL 600.2169 refers to “licensed” health care professionals,
“registered” health care professionals are also covered by the Public Health Code.
MCL 333.16106(2), MCL 333.16263(1)(p) and MCL 333.18301-MCL 333.18311.
Brown v Hayes, 270 Mich App 491, 499-500; 716 NW2d 13, rev’d in part 477 Mich
966 (2006). An expert physician assistant need not specialize in the same area of
medicine as the defendant because neither one can be a specialist. Wolford v
Duncan, 279 Mich App 631, 637; 760; NW2d 253 (2008)
Dentists Local Standard of Care. A general practitioner dentist is subject to the
standard of acceptable professional practice in the community in which he practiced
or in a similar community. MCL 600.2912a(1)(a). Copeland v Family Dental Center,
(Unpublished, 08/23/00).
Specialists National Standard of Care. If the defendant is a specialist, the
plaintiff must prove that the doctor failed to adhere to the national standard of care
for that specialty. MCL 600.2912a(1)(b).
Chiropractic Medicine Local Standard of Care. Barnes v Mitchell 341 Mich 7,
67 NW2d 208 (1954). Further, MCL 333.16401 limits the scope of chiropractic care
and, therefore, the duty a chiropractor owes to a patient. MacDonald v Barbarotto
161 Mich App 542; 411 NW2d 747 (1987). A chiropractor’s statutory authority under
the Public Health Code is limited to the spine and does not permit them to make a
differential diagnosis for non-chiropractic conditions. A chiropractor may not perform
diagnostic testing or other examinations to evaluate and diagnose other conditions,
or to determine that a referral for such conditions is necessary. Braford v O’Connor
Chiropractic, 243 Mich App 524, 624 NW2d 245 (2000). Attorney General v Beno,
422 Mich 293, 373 NW2d 544 (1985). Wengel v Herfert, 189 Mich App 427,
429-432, 473 NW2d 741 (1991). Hofman v Auto Club Ins Ass’n, 211 Mich App 55,
87, 535 NW2d 529 (1995).
C.
Theories of Recovery
Informed Consent Claims. To obtain informed consent, a physician must follow
the standard of care applicable to informing a patient of the risks and hazards of the
proposed treatment. De minimus risks may not have to be disclosed under the
standard of care. Patients have the right to make their own medical decisions. In
re AMB, 248 Mich App 144, 199; 640 NW2d 262 (2001). Liability may exist if
information required to be disclosed would have led to a decision to avoid the
proposed treatment. M Civ JI 30.02, Roberts v Young, 369 Mich 133, 119 NW2d
627 (1963). Banks v Wittenberg, 82 Mich App 274, 266 NW2d 788 (1978).
Marchlewicz v Stanton, 50 Mich App 344, 213 NW2d 317 (1973). Claims of
inadequate informed consent require expert testimony unless the inadequacy is
obvious to a lay person. Paul v Lee, 455 Mich 204 (1997). It is the duty of a
11
physician to inform a patient of the risks of a procedure--not the hospital or its
personnel. Lincoln v Gupta, 142 Mich App 615, 625, 370 NW2d 312 (1985). The
key question is whether plaintiff would have withheld consent if the withheld
information was provided. Robins v Katz, 151 Mich App 802, 811; 391 NW2d 495
(1986). Where a plaintiff had only two choices: surgery or loss of vision, as a matter
of law a reasonably prudent patient would choose surgery. The doctrine of informed
consent requires a physician to warn a patient of the risks and consequences of a
medical procedure. Wlosinski v Cohn, 269 Mich App 303, 308; 713 NW2d 16
(2005). The burden of establishing that a defendant has breached the applicable
standard of care is on the plaintiff. Wiley v Henry Ford Cottage Hosp., 257 Mich App
488, 492, 668 NW2d 402 (2003). Cistrunk v Oakwood Heritage Hospital,
(Unpublished, June 15, 2010).
Informed Consent Relates to the Procedure Not Physician Skills. There is no
duty to disclose the surgeon’s personal success rate for transplant surgery to obtain
informed consent as it was not a risk related to the procedure itself. There was no
evidence of any misrepresentation by the doctor and no evidence of a relationship
between previous failed transplants and the outcome in the case at issue.
Wlosinski v Cohn, 269 Mich App 303, 308; 713 NW2d 16 (2005). Some jurisdictions
do allow evidence of a doctor’s inexperience where the doctor asserted experience
and competence as an inducement for treatment. See: Howard v University of
Medicine and Dentistry of New Jersey, 172 NJ 537, 553-554; 800 A2d 73 (2002).
Johnson v Kokemoor, 199 Wis 2d 615, 624; 545 NW2d 495 (1996).
Assault & Battery. Medical treatment administered without a patient's consent
can constitute a tortious battery. In re Rosebush, 195 Mich App 675, 680-681; 491
NW2d 633 (1992). A battery is the willful and harmful or offensive touching of
another person resulting from an act intended to cause contact, VanVorous v
Burmeister, 262 Mich App 467, 483; 687 NW2d 132 (2004). There is no battery if
the patient consented to the contact, People v Starks, 473 Mich 227, 234; 701
NW2d 136 (2005). Damages may be recovered for attendant mental suffering and
physical injuries. An assault and battery claim must be brought within two years.
An assault and battery may also occur if consent has been exceeded. Consent may
be express or implied. “Implied consent" may be inferred from seeking treatment,
or some other act manifesting a willingness to submit to a particular course of
treatment. MCL 600.5805. Robertson v Hulbert, 226 Mich 219, 232, 197 NW 505
(1924). Lemmerman v Fealk, 449 Mich 56, 63 (1995). Banks v Wittenberg, 82 Mich
App 274, 279-280, 266 NW2d 788 (1978). Werth v Taylor, 190 Mich App 141, 146,
475 NW2d 426 (1991). Macdonald v Barbarotto, 161 Mich App 542, 411 NW2d 747
(1987).
False Imprisonment. Where a plaintiff is conscious and competent, any and all
forms of medical intervention may be declined, including lifesaving or life-prolonging
treatment. In re Rosebush, 195 Mich App 675, 681; 491 NW2d 633 (1992). In re
Martin, 450 Mich 204, 216-217; 538 NW2d 399 (1995) (a patient has the right to
refuse life-sustaining treatment). When a refusal of treatment prevents a health
facility or physician from providing appropriate care, a relationship with a patient
may be terminated upon reasonable notice. Retaining a patient who wishes to
12
refuse treatment can be false imprisonment. That tort involves “an unlawful restraint
on a person’s liberty or freedom of movement.” Peterson Novelties, Inc v City of
Berkley, 259 Mich App 1, 17; 672 NW2d 351 (2003). The elements of false
imprisonment are: (1) an act committed with the intention of confining another, (2)
the act directly or indirectly results in such confinement, and (3) the person confined
is conscious of his confinement.” Moore v Detroit, 252 Mich App 384, 387; 652
NW2d 688 (2002). Adams v Nat’l Bank of Detroit, 444 Mich 329, 341; 508 NW2d
464 (1993). Tate v Botsford General Hospital (Unpublished, April 29l, 2004). There
is a presumption of consent for unconscious patients requiring treatment under MCL
333.20201(2)(f). Delahunt v Finton, 244 Mich 226; 221 NW 168 (1928).
Res Ipsa Loquitur. “The thing speaks for itself.” The doctrine allows an inference
of negligence where a plaintiff may be unable to prove the actual occurrence of a
negligent act. In some situations an injury alone may be proof of negligence. In a
res ipsa loquitur case, negligence is inferred from the circumstances. Four factors
are necessary for a res ipsa loquitur claim: 1) the event must be of a kind which
ordinarily does not occur in the absence of someone’s negligence, 2) it must be
caused by an agency or instrumentality within the exclusive control of the
defendant, 3) it must not have been due to any voluntary action or contribution on
the part of the plaintiff, and 4) evidence of the true explanation of the event must be
more readily accessible to the defendant than to the plaintiff. Woodard v Custer,
473 Mich 1, 6; 702 NW2d 522 (2005). A bad result is insufficient to satisfy the first
element. The fact that an injury does not ordinarily occur in the absence of
negligence must be supported by expert testimony or be within the common
understanding of the jury. Locke v Pachtman, 446 Mich 216, 230; 521 NW2d 786
(1994). Maiden v Rozwood, 461 Mich 109, 597 NW2d 817 (1999). In a proper res
ipsa loquitur case, a jury may infer negligence from a result which would not have
occurred in the absence of negligence. Jones v Porretta, 428 Mich 132, 150, 405
NW2d 863 (1987). Wischmeyer v Schanz, 449 Mich 469, 484, 536 NW2d 760
(1995). Byrne v Schneider’s Iron & Metal, Inc, 190 Mich App 176, 182, 475 NW2d
854 (1991). Niemi v U.P. Orthopedic Associates, 173 Mich App 326, 433 NW2d 363
(1988). Thomas v McPherson Community Health Center, 155 Mich App 700, 705;
400 NW2d 629 (1986). The doctrine was held to not apply to a leg fracture while
placing an arterial line in a newborn’s leg. Expert testimony was required as
whether the leg could be fractured in the absence of negligence. Dube v St. John
Hosp. & Med. Ctr. (Unpublished, May 16, 2006). Sessoms v Bay Regional Medical
Center (Unpublished, August 22, 2006).
Wrongful Life. MCL 600.2971(2) prohibits a civil action for wrongful life except in
cases of intentional or grossly negligent conduct. “Gross negligence” is“conduct so
reckless as to demonstrate a substantial lack of concern for whether an injury
results.” Xu v. Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003). Michigan does
not recognize a “wrongful life” cause of action brought by a child. A court “has no
business declaring that among the living are people who never should have been
born.” Proffitt v Bartolo, 162 Mich App 35, 51, 58, 412 NW2d 232 (1987). Taylor v
Kurapati 236 Mich App 315, 360; 600 NW2d 670 (1999).
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Wrongful Birth. MCL 600.2971(1) statutorily prohibits any civil action for wrongful
birth except in cases of intentional or grossly negligent conduct. “Gross negligence”
is“conduct so reckless as to demonstrate a substantial lack of concern for whether
an injury results.” Xu v. Gay, 257 Mich App 263, 269; 668 NW2d 166 (2003).
Parents have no claim for “wrongful birth” for being deprived of a timely, informed
opportunity to terminate a pregnancy. As in “wrongful life” claims, the benefits of
children conclusively outweigh damages. Wilson v Mercy Hospital, (Unpublished,
02/04/03). Taylor v Surender Kurapati, 236 Mich App 315 (1999). Taylor overruled
Eisbrenner v Stanley, 106 Mich App 357 (1981), Proffitt v Bartolo, 162 Mich App 35,
46, 412 NW2d 232 (1987) and Blair v Hutzel Hospital, 217 Mich App 502, 509
(1996), which suggested damages for extraordinary expenses were recoverable.
Wrongful Conception/Failure to Diagnose Pregnancy. An unsuccessful tubal
ligation, failed abortion, or failure to diagnose a pregnancy resulting in delivery of
a child, may state a claim but recovery is limited to damages covering the cost of
the pregnancy, medical complications, pain and suffering, mental distress, lost
wages and loss of consortium during the perinatal period. A parent may not recover
the costs of raising a healthy child since the benefits of children conclusively
outweigh any costs. Rouse v Wesley, 196 Mich App 625, 631, 494 NW2d 7 (1992).
Rinard v Biczak, 177 Mich App 287, 294 (1989). Troppi v Scarf, 31 Mich App 240,
187 NW2d 511 (1971). Green v Sudakin, 81 Mich App 545, 265 NW2d 411 (1978).
Non Viable Fetus Claims. The Michigan Wrongful Death Act, MCL 600.2922, is
the exclusive remedy for injuries resulting in death. Endykiewicz v State Highway
Comm, 414 Mich 377, 387; 324 NW2d 755 (1982). 2005 amendments allow for
liability against a person who commits a wrongful or negligent act against a
pregnant individual if the act results in a stillbirth. MCL 600.2922a(2)(b) provides
three exceptions for damages for the death of an embryo or fetus: 1) If the death
is the result of a medical procedure performed by a physician or other licensed
health professional within the scope of his or her practice and with the pregnant
individual's consent; 2) If the death is the result of a medical procedure performed
by a physician or other licensed health professional within the scope of his or her
practice and with the consent of an individual who may lawfully provide consent on
the pregnant individuals behalf; or, 3) If the death is the result of a medical
procedure performed by a physician or other licensed health professional within the
scope of his or her practice without consent as necessitated by a medical
emergency.
Parental Claim for Stillbirth. A plaintiff has a cause of action for damages in her
own right as a result of her miscarriage. McClain v University of Michigan Board of
Regents, 256 Mich App 492 (2003). Johnson v Pastoriza, __ Mich App __; --- NW2d
---- (October 12, 2010).
Loss of Consortium of Spouse. A derivative claim is a separate part of a single
cause of action. A derivative claim for loss of consortium of a spouse stands or falls
with the primary claims in the complaint. Long v Chelsea Hosp, 219 Mich App 578,
589; 557 NW2d 157 (1996). Moss v Pacquing, 183 Mich App 574, 583, 455 NW2d
339 (1990). Even if a marriage occurs after the negligent injury, a consortium claim
14
will still lie. Gore v Rains and Block, 189 Mich App 729 (1991). Although a loss of
consortium claim is derivative of the underlying claim, it is a separate cause of
action. Eide v Kelsey-Hayes Co, 431 Mich 26; 427 NW2d 488 (1988). Montgomery
v Stephan, 359 Mich 33, 41, 101 NW2d 227 (1960). Prosser & Keeton, Torts (5th
ed.), § 125, pp. 931-934. A spouse’s release in an underlying claim does not
release a loss of consortium claim. Oldani v Lieberman, 144 Mich App 642 (1985).
Child Claim for Loss of Parental Companionship. A child may bring a claim for
loss of society and companionship when a parent is negligently injured. Berger v
Webber, 411 Mich 1, 303 NW2d 424 (1981). Damages recoverable by a child for
loss of a decedent-parent’s household services are economic damages. Larion v
Detroit, 149 Mich App 402 (1986). Bramer v Ames, 338 Mich 226 (1953). Strong v
Kittenger, 300 Mich 126 (1942). Estate of Zarif, 836 FSupp 1340 (ED Mich, 1993).
Parents Have No Claim for Loss of Companionship as to Child. Parents do not
have a personal claim for loss of consortium based upon an injury to their child
Sizemore v Smock, 430 Mich 283, 422 NW2d 666 (1988).
Negligent Infliction of Emotional Distress. Michigan recognizes a cause of
action for negligent infliction of emotional distress where a parent witnesses
negligent medical treatment given a child. Wargelin v Sisters of Mercy Health Corp,
149 Mich App 75, 385 NW2d 732 (1986). The cause of action is based on the
foreseeability of emotional harm. Damages for emotional distress and attendant
physical consequences caused by witnessing the negligence are allowed. Toms v
McConnell, 45 Mich App 647, 654, 207 NW2d 140 (1973).
Intentional Infliction of Emotional Distress Claim. To establish a prima facie
claim of intentional infliction of emotional distress, a plaintiff must present evidence
of (1) the defendant's extreme and outrageous conduct, (2) the defendant's intent
or recklessness, (3) causation, and (4) the severe emotional distress of the plaintiff.
Only when a plaintiff can demonstrate that the defendant's conduct was so
outrageous in character and so extreme as to go beyond all possible bounds of
decency and to be regarded as atrocious and utterly intolerable in a civilized
community will liability attach. Mere insults, indignities, threats, annoyances, or other
trivialities do not give rise to liability for intentional infliction of emotional distress.
Dalley v Dykema Gossett, PLLC, 287 Mich App 296, 323; 788 NW2d 679 (2010).
Hayley v Allstate Ins Co, 262 Mich App 571, 577; 686 NW2d 273 (2004). Haverbush
v Powelson, 217 Mich App 228, 234-235, 551 NW2d 206 (1996). Where a doctor
involved the plaintiff husband in a procedure to terminate his wife’s pregnancy,
reasonable persons could differ as to whether the doctor acted recklessly, or
whether the conduct was extreme and outrageous. Teadt v Lutheran Missouri
Synod, 237 Mich App 567, 582, 603 NW2d 816 (1999).
Hospital Administrative & Negligent Supervision Claims. A hospital may be 1)
directly liable for malpractice, through claims of negligence in supervision of staff
physicians as well as selection and retention of medical staff, or 2) vicariously liable
for the negligence of its agents. For a claim of negligent supervision, plaintiff must
prove that the defendant knew or should have known that the employee could not
15
be trusted with the responsibility given. Cox v Flint Bd of Hosp Managers, 467 Mich
1, 11; 651 NW2d 356 (2002). Disputes over hospital supervision of staff physicians
and decisions regarding selection and retention of medical staff are medical
malpractice claims even though they do not involve treatment. Whitney v Gallagher,
64 Mich App 46, 50-51, 235 NW2d 57 (1975). Danner v Holy Cross Hospital, 189
Mich App 397, 398, 474 NW2d 124 (1991). Dorris v Detroit Osteopathic Hospital,
460 Mich 26, 594 NW2d 455 (1999). Wilson v Stilwill, 411 Mich 587, 611, 309
NW2d 898 (1981). McLeod v Plymouth Court Nursing Home, 957 FSupp 113 (ED
Mich, 1997). MacDonald v Barbarotto, 161 Mich App 542, 411 NW2d 747 (1987).
Adkins v Annapolis Hospital, 420 Mich 87, (1984). Starr v Providence Hosp, 109
Mich App 762, 766, 312 NW2d 152 (1981). Stitt v Mahaney, 72 Mich App 120
(1976). The special relationship between employer and employee does not of itself
require an employer to protect third parties unless there is notice of special
circumstances. Millross v Plum Hollow Golf Club, 429 Mich 178, 413 NW2d 17
(1987). Claims of direct institutional liability or independent negligence against a
medical facility are claims that raise “questions of medical judgment beyond the
realm of common knowledge and experience” and pertain to events occurring
during a professional relationship. Accordingly, a direct institutional liability claim
requires expert testimony. May v Mercy Memorial Nursing Center, (Unpublished,
January 20, 2009), citing Bryant v Oakpointe Villa Nursing Ctr, 471 Mich 411, 422;
684 NW2d 864 (2004).
Patient Abandonment. Generally a physician-patient relationship continues until:
1) it is ended by the consent of the parties, 2) is revoked by the dismissal of the
physician, 3) until the services are no longer needed, or 4) the physician withdraws
from the case. A physician has a right to withdraw from a treatment relationship
where there is a reasonable opportunity to employ another physician to continue
needed care. A physician may be liable for damages caused by abandoning a
patient without sufficient notice or adequate excuse. Tierney v Univ of Michigan
Regents, 257 Mich App 681, 687; 669 NW2d 575 (2003). Fortner v Koch, 277 Mich
429, 269 NW 222 (1936). Anno: Liability of physician who abandons case, 57
ALR2d 432, 437.
Injurious Falsehood & Defamation. The elements of a defamation action are: (1)
a false and defamatory statement concerning the plaintiff, (2) an unprivileged
communication to a third party, (3) fault amounting to at least negligence on the part
of the publisher, and (4) either actionability of the statement irrespective of special
harm or the existence of special harm caused by publication. Mitan v Campbell, 474
Mich 21, 24; 706 NW2d 420 (2005). Kefgen v Davidson, 241 Mich App 611, 617;
617 NW2d 351 (2000). “A communication is defamatory if, under all the
circumstances, it tends to so harm the reputation of an individual that it lowers the
individual’s reputation in the community or deters others from associating or dealing
with the individual.” Truth is an absolute defense to a defamation claim. Porter v
Royal Oak, 214 Mich App 478, 486; 542 NW2d 905 (1995). False statements made
by a physician may result in liability if it is intended, or substantially likely, that the
statement will cause harm. Kollenberg v Ramirez, 127 Mich App 345, 353, 339
NW2d 176 (1983). 3 Restatement Torts 2d, Section 623A. A claim for defamation
arising out of defendant reporting erroneous blood tests positive for both HIV and
16
Hepatitis B to Plaintiff’s physician and the State of Michigan was held to be barred
where MCL 333.5114; 1993 AC, R. 325.172; 1993 AC, R. 325.173(1), (5) requires
physicians to inform the Michigan Department of Public Health of positive Hepatitis
B or HIV results. MCL 333.5131(6) provides immunity from liability for individuals
who releases such results. Further, statements are protected by a qualified privilege
where they are “(1) made in good faith; (2) relate to an interest to be upheld; (3) the
statement is limited in scope to the purpose; (4) made on a proper occasion; and
(5) published properly and to proper parties only. Prysak v RL Polk Co, 193 Mich
App 1, 15; 483 NW2d 629 (1992). Abouhassan v Detroit Biomedical Laboratories,
Inc. (Unpublished, October 7, 2010).
Contract or Warranty Claims. The Michigan Statute of Frauds covers all
agreements, promises or contracts relating to medical care or treatment, not just a
“warranty of cure.” Powers v Peoples Community Hospital, 183 Mich App 550, 455
NW2d 371 (1990). Trotsky v Henry Ford Hosp., 169 Mich App 286, 425 NW2d 531
(1988). Smith v City of Pontiac, 169 Mich App 559, 426 NW2d 704 (1988).
Lawrence v Ingham County Health, 160 Mich App 420, 408 NW2d 461 (1987). A
form authorizing treatment is not the basis for a breach of contract claim. An
agreement, promise, contract, or warranty of cure relating to medical care or
treatment an agreement, contract, or promise is void unless it is in writing and
signed by an authorized signature of the party being charged. MCL 566.132(1)(g).
May v Harper Hospital, 185 Mich App 548, 462 NW2d 754 (1990).
Medical Products Liability. Michigan’s “Blood Shield” statute provides that the use
of artificial tissues, including blood, corneas, bones, organs or other implants, are
a “service,” and not a “sale” giving rise to a warranty claim. If the predominant
purpose of an undertaking is to render medical care, and not to provide goods, the
common law considers the transaction a service, and negligence law rather than
warranty or product liability theories of recovery will apply. MCL 333.9121. Ayyash
v Henry Ford Health, 210 Mich App 142, 146 (1995). Neibarger v Universal
Cooperatives, Inc., 439 Mich 512, 534 (1992). McKinstrie v Henry Ford Hospital, 55
Mich App 659, 660-661, 223 NW2d 114 (1974).
Community Care Placement Claim. Hospitals owe a limited duty to supervise a
resident placed in a foster care home. The deceased had not been adjudged
mentally incompetent, nor was his freedom of movement restricted upon release
from the hospital. Although he needed supervision because he had a history of not
complying with his treatment, his status did not permit the facility to restrain his
freedom of movement. Hallman v Holy Cross Hosp. of Detroit (Unpublished,
October 25, 2005).
Breach of Confidentiality Claims. A “breach of confidentiality” claim under MCL
333.18237, providing that a psychologist “cannot be compelled to disclose
confidential information acquired from an individual consulting the psychologist in
his or her professional capacity if the information is necessary to enable the
psychologist to render services,” was a medical malpractice claim, as no
independent cause of action was provided under the statute. Schwartz v Gilbert
(Unpublished, February 19, 2009). A claim against a licensed health care provider
is medical malpractice if the claim (1) arises from conduct that occurred during the
17
course of a professional relationship, and (2) involves questions of medical
expertise or judgment outside the realm of common knowledge and experience.
Kuznar v Raksha Corp, 481 Mich 169, 176-177; 750 NW2d 121 (2008). Bryant v
Oakpointe Villa Nursing Centre, Inc, 471 Mich 411, 422; 684 NW2d 864 (2004).
Where establishing plaintiff’s claim depended upon questions of medical expertise
or judgment outside the realm of common knowledge and experience of lay
persons, it was for medical malpractice and subject to procedural and substantive
requirements governing such actions.
D.
Vicarious Liability, Respondeat Superior & Agency
Active & Passive Negligence. Active negligence is where an individual party acts
and breaches a direct duty to the Plaintiff. “Passive” negligence is where liability
arises indirectly for the conduct of others by operation of law. “Active” or “passive”
negligence is determined by the allegations in the underlying complaint. Langley v
Harris Corp, 413 Mich 592, 596-597, 321 NW2d 662 (1982). Vicarious liability is
indirect responsibility imposed by operation of law. To find a hospital vicariously
liable, the specific agents against whom negligence is alleged, and the standard of
care applicable to each agent, must be identified. Vicarious liability arises because
a hospital is held to have done what its agents have done. An employer is not
vicariously liable for acts committed by its employees outside the scope of
employment, as the employee is not acting for the employer, or under the
employer’s control. A failure to specify which agents are involved, and to
differentiate between varying standards of care applicable to each improperly
relieves plaintiff of the burden of proof. Cox v Board of Hospital Managers for the
City of Flint, 467 Mich 1, 651 NW2d 356 (2002). Johnson v Corbet, 423 Mich 304,
327, 377 NW2d 713 (1985).
Respondeat Superior. The elements of respondeat superior liability are: Conduct
of a servant within the scope of employment, but only if: (a) it is of the kind he is
employed to perform; (b) it occurs substantially within the authorized time and space
limits; (c) it is actuated, at least in part, by a purpose to serve the master. Conduct
is not within the scope of employment if it is different in kind from that authorized,
far beyond the authorized time or space limits, or too little actuated by a purpose to
serve the master. Restatement 2nd of Agency, § 228. The doctrine of respondeat
superior does not create liability between servants or agents of the principal. Coemployees are not vicariously liable for one another’s torts absent their consent.
Murphy v Kuhartz, 244 Mich 54, 56; 221 NW 143 (1928). An employee’s negligence
during a frolic or detour, or after hours, is not imputed to the employer. Drobnicki
v Packard Motor Car Co, 212 Mich 133; 180 NW 459 (1920). Eberle Brewing Co v
Briscoe Motor Co, 194 Mich 140; 160 NW 440 (1916). An employer is not liable for
intentional or reckless acts beyond the scope of employment. Bradley v Stevens,
329 Mich 556, 562; 46 NW2d 382 (1951). In cases claiming respondeat superior
liability, the “control” test governs. The right to control the agent, not actual control
at the time, is determinative. Hoffman v JDM Assoc, 213 Mich App 466; 540 NW2d
689 (1995). A master is not vicariously liable if the servant is not liable. Rogers v JB
Hunt Transport, Inc, 466 Mich 645, 651; 649 NW2d 23 (2002). The employer and
employee are “alter egos” under the doctrine of respondeat superior, establishing
18
mutual liability. This mutuality extinguishes the liability of one where the other is
released by agreement, or is dismissed with prejudice, from a legal action. The
doctrine is strictly applicable to employees, but may also be applied to agents.
Al-Shimmari v Detroit Medical Center, 477 Mich 280, 731 NW2d 29 (2007).
Theophelis v Lansing Hospital, 430 Mich 473, 424 NW2d 478 (1988). Willis v Total
Health Care, 125 Mich App 612, 337 NW2d 20 (1983).
Agency Principles. Respondeat superior and vicarious liability on the basis of
agency are separate doctrines. Rogers v JB Hunt Transport, 466 Mich 645, 656;
649 NW2d 23 (2002). Under principles of agency law, the actions of an agent bind
a principal where the agent acts with either actual or apparent authority. Actual
authority may be express or implied. “The agent of a disclosed or partially disclosed
principal is not subject to liability for the conduct of other agents unless he is at fault
in appointing, supervising, or cooperating with them.” Restatement of Agency 2nd
§ 358(1). Meyer v Holley, 537 U.S. 280, 123 SCt 824, 154 LEd2d 753 (2003). The
existence and scope of an agency relationship is generally a question of fact.
Chiamp v Hertz Corp, 210 Mich App 243, 246, 533 NW2d 15 (1995). Norcross Co
v Turner-Fisher Associates, 165 Mich App 170, 181, 418 NW2d 418 (1987). To
determine whether an agency exists, a court must consider the relation of the
parties in fact under their agreements or acts. In its broadest sense, agency
includes every relation in which one person acts for or represents another by his
authority. St Clair Intermediate School Dist v Intermediate Educ Ass’n/Michigan
Educ Ass’n, 458 Mich 540, 557; 581 NW2d 707 (1998). Saums v Parfet, 270 Mich
165, 170-171; 258 NW 235 (1935). Fundamental to an agency relationship is the
right to control the conduct of the agent. The right to interfere and control makes the
difference between an independent contractor and a servant or agent. Van Pelt v
Paull, 6 Mich App 618, 624; 150 NW2d 185 (1967). Meredith v Oakwood
Healthcare, Inc., (Unpublished, April 8, 2010). If the circumstances show that the
principal intended an agent to possess the authority to perform the act on the
principal's behalf, then actual, rather than apparent, authority may be implied. Hertz
Corp v Volvo Truck Corp, 210 Mich App 243, 246; 533 NW2d 15 (1995). Where a
defendant cloaks an agent with apparent authority to do an act not actually
authorized, the principal is bound. Cutler v Grinnell Bros, 325 Mich 370, 376; 38
NW2d 893 (1949). A principal is bound by an agent’s actions within the agent’s
actual or apparent authority. James v Alberts, 464 Mich 12, 15; 626 NW2d 158
(2001). Apparent authority arises where acts and appearances lead a third person
to reasonably believe that an agency exists. Apparent authority must be traceable
to the principal and cannot be established only by the acts and conduct of the
agent. Alar v Mercy Mem Hosp, 208 Mich App 518, 528; 529 NW2d 318 (1995).
VanStelle v Macaskill, 255 Mich App 1, 10; 662 NW2d 41 (2003). When a principal
has placed an agent in such a situation that a person of ordinary prudence is
justified in assuming that the agent is authorized to perform a particular act, and the
act has been performed, the principal is estopped from denying the agent's
authority to perform it. Meretta v Peach, 195 Mich App 695, 699-700; 491 NW2d
278 (1992). Central Wholesale Co v Sefa, 351 Mich 17, 26-27; 87 NW2d 94 (1957).
No Vicarious Liability for Intentional Acts. Generally, a “master” is responsible
for the wrongful acts committed by a “servant” when acting within the scope of
19
employment. Rogers v J B Hunt Transport, Inc, 466 Mich 645, 650-651; 649 NW2d
23 (2002). An employer is not liable for intentional acts outside of the scope of
employment. An act is outside the scope of employment if an employee acts to
accomplish a personal purpose. Green v Shell Oil Co, 181 Mich App 439, 446-447;
450 NW2d 50 (1989). Martin v Jones, 302 Mich 355, 358; 4 NW2d 686 (1942).
Where a male nurse sexually assaulted the plaintiff, summary disposition was
proper where the employee was not aided by the hospital. No liability existed merely
because the employment offered an opportunity to assault the plaintiff. Zsigo v
Hurley Medical Center, 475 Mich 215; 716 NW2d 220 (2006). Salinas v Genesys
Health System, 263 Mich App 315, 317; 688 NW2d 112 (2004). Bozarth v Harper
Creek Bd of Ed, 94 Mich App 351; 288 NW2d 424 (1979). Cawood v Rainbow
Rehabilitation Centers, Inc, 269 Mich App 116, 119; 711 NW2d 754 (2005).
Agency Between Spouses. Neither spouse, merely by virtue of the marital relation
has power to act as agent for the other. The relation is of such a nature, however,
that circumstances which in the case of strangers would not indicate the creation
of authority or apparent authority may indicate it in the case of husband or wife.
Thus, a husband habitually permitted by his wife to attend to some of her business
matters may be found to have authority to transact all her business affairs. 1
Restatement Agency, 2d,§ 22 comment b, p 94.
Medical Staff Separate From Hospitals. The medical staff is a separate entity
from the hospital. A hospital is not generally liable for actions taken by the medical
staff. A hospital “tumor board” comprised of independent staff was not an actual
“agent” of the hospital absent proof of the elements of an ostensible agency.
Wallace v Garden City Hospital, 111 Mich App 212, 314 NW2d 557 (1981), rev on
other grounds in Wallace v Garden City Hospital, 417 Mich 907, 330 NW2d 850
(1983). Howard v Zamorano (Unpublished, October 14, 2004).
Economic Reality Test, Retained Control & Employees. An employment
relationship may exist for persons not formally employed. A health care facility may
be liable for agents and independent contractors if, under an “economic reality” test,
sufficient control is exercised over their conduct. The level of control required is
usually a question of fact. However, in medical malpractice cases, where the right
to control care is limited to those with medical licenses, liability for non-employed,
independent staff is usually not subjected to the requisite level of control reuired for
the doctrine to apply. Instead, liability is generally determined by the “apparent
agency” doctrine which focuses instead on the appearance of employment, rather
than the degree of control exercised. Mallory v Conida Warehouses, 113 Mich App
280, 317 NW2d 597 (1982). Avery v American Honda Company, 120 Mich App 222,
327 NW2d 447 (1982). Little v Howard Johnson Co., 183 Mich App 675,682 (1990).
Claims Only Against Health Care Facility. If an institution is the only named
defendant, it is necessary for a plaintiff to prove that each agent or employee
violated the standard of care applicable to them. Cox v Flint Bd of Hosp Mgrs, 467
Mich 1, 11, 14-15; 651 NW2d 356 (2002). A plaintiff who brings a medical
malpractice action against only an institution must file Affidavits of Merit from health
care professionals specializing in the same areas as the professionals whose
20
conduct forms the basis of the action. Nippa v Botsford General Hosp (On
Remand), 257 Mich App 387, 392-393; 668 NW2d 628 (2003).
Effect of Default Against Agent or Employee. A party alleged vicariously liable
for the conduct of a defaulted employee or agent is not precluded from contesting
the claims of negligence for which vicarious liability is claimed. Estate of Rogers v
J. B. Hunt Transport, Inc., 466 Mich 645, 649 NW2d 23 (2002).
Grewe & Apparent or Ostensible Agency. Apparent authority is created “by
written or spoken words or any other conduct of the principal which, reasonably
interpreted, causes the third person to believe that the principal consents to have
the act done on his behalf by the person purporting to act for him.” 1 Restatement
Agency, 2d, § 27, p 103. Apparent authority cannot be established merely by an
agent’s acts; it must be traceable to the principal. Meretta v Peach, 195 Mich App
695, 698-699; 491 NW2d 278 (1992). Alar v Mercy Mem Hosp, 208 Mich App 518,
528; 529 NW2d 318 (1995). Generally, a hospital is not vicariously liable for the
negligence of a physician who is an independent contractor merely using the
hospital’s facilities to render treatment. However, if the patient looked to the hospital
for treatment, and the hospital represented that the treatment would be afforded by
a physician in its employ, an ostensible agency can be found. Grewe v Mt Clemens
General Hosp, 404 Mich 240, 251-252, 273 NW2d 429 (1978). Estate of DelGado
v St. Mary Hospital of Saginaw, 192 Mich App 29, 480 NW2d 590 (1991). Howard
v Park, 37 Mich App 496, 499-500, 195 NW2d 39 (1972). To establish an ostensible
agency, it must be shown that: 1) the person dealing with the agent did so with a
reasonable belief in the agent’s authority; 2) the belief must be generated by some
act or omission on the part of the principal sought to be held liable; and 3) the
person relying on the agent’s authority must not be guilty of negligence. Chapa v
St Mary’s Hosp, 192 Mich App 29, 33-34; 480 NW2d 590 (1991). Zdrojewski v
Murphy, 254 Mich App 50; 657 NW2d 721 (2002). Where a physician does not
represent him or herself as an employee of the hospital, and no evidence shows
that the hospital, as putative principal, did anything to create a reasonable belief that
a physician was its employee, or that the hospital was aware of such an assumption
by the Plaintiff and failed to take reasonable steps to correct it, there is no liability.
“Nothing in Grewe requires that a hospital is liable merely because the patient
“looked to” the hospital at the time of admission. The fact that the building where a
doctor provided services was owned by the hospital does not justify a belief that the
doctor is acting on behalf of the hospital. VanStelle v Macaskill, 255 Mich App 1,
13-14; 662 NW2d 41 (2003). The test is not whether a plaintiff looked to the hospital
for treatment. The hospital must do something to create a reasonable belief that the
physician was acting on behalf of institution. Wher Plaintiff did not select the facility,
an ostensible agency may still exist. There is no requirement that the patient relied
on any belief in selecting the hospital. The issue is whether Plaintiff reasonably
believed that the physician was an agent of the hospital. Chapa v St Mary’s Hosp
of Saginaw, 192 Mich App 29, 33-34, 480 NW2d 590 (1991). Sasseen v Community
Hosp Foundation, 159 Mich App 231, 240, 406 NW2d 193 (1986). Hinkleman v
Borgess Medical Center, 157 Mich App 314, 323, 403 NW2d 547 (1987). Strach v
St John Hosp Corp, 160 Mich App 251, 263, 408 NW2d 441 (1987). An agency
existed between the radiologists and the hospital where Plaintiff had no relationship
21
with the radiologists independent of the hospital setting, and the evidence showed
that the radiology department was held out as part of the hospital, leading patients
to understand that the services are being rendered by the hospital. Setterington v
Pontiac General Hospital, 223 Mich App 594, 608, 568 NW2d 93 (1997). The
relevant belief is the decedent’s belief, not plaintiff's. Estate of Inglis v Providence
Hospital and Medical Centers, Inc. (Unpublished, August 26, 2004). Where Plaintiff
failed to establish all elements of an ostensible agency, and did not recall much of
the admission, an ostensible agency theory failed as a matter of law. Miteen v
Genesys Reg’l Med. Ctr. (Unpublished, January 24, 2006). Whether Plaintiff could
have chosen another medical provider is irrelevant. Reeves v Midmichigan Health
(Unpublished, September 30, 2010).
Grewe & Prior Physician Relationship. An independent relationship between a
doctor and a patient that preceded a patient’s admission to a hospital precludes a
finding of ostensible agency, unless the acts or omissions of the hospital override
the impressions created by the pre-existing relationship and create a reasonable
belief that the doctor is an agent of the hospital. Hinkleman v Borgess Medical
Center, 157 Mich App 314, 323; 403 NW2d 547 (1987); Strach v St John Hosp
Corp, 160 Mich App 251, 263; 408 NW2d 441 (1987). Zdrojewski v Murphy, 254
Mich App 50, 66; 657 NW2d 721 (2002). Putnam v Sezgin, (Unpublished December
2, 2004). Wilson v Stilwill, 411 Mich 587, 309 NW2d 989 (1981). Hinkelman v
Borgess Medical Center, 157 Mich App 314, 403 NW2d 547 (1987). Revitzer v
Trenton Medical Center, Inc., 118 Mich App 169, 174-175, 324 NW2d 561 (1982).
Brackens v Detroit Osteopathic Hospital, 174 Mich App 290, 435 NW2d 472 (1989).
Fletcher v Port Huron Hospital, (Unpublished, February 29,2000). But, a physician’s
representation that he was part of a hospital “team” has been held to establish
vicarious liability even where a pre-existing physician-patient relationship existed.
Strach v St. John Hospital, 160 Mich App 251, 408 NW2d 441 (1987). Where a
physician calls in another physician to assist with a patient, a hospital may not be
held vicariously liable, even if treatment occurs in a hospital setting. Chapa v St
Mary’s Hospital of Saginaw, 192 Mich App 29, 33; 480 NW2d 590 (1991). Sevelis
v Sellers (Unpublished, May 17, 2005).
Grewe & Hospital Professional Buildings. Separate corporate entities are
respected under law unless there is an abuse of the corporate form. Seasword v
Hilti, Inc., 449 Mich 542, 547, 537 NW2d 221 (1995). The retained control theory
does not apply to a parent corporation’s control over a subsidiary unless the
subsidiary is a “mere instrumentality” of the parent. A health care corporation may
not be held vicariously liable for a physician from a subsidiary. “The fact that the
building in which a doctor performs medical services is owned by a hospital does
not justify a belief that the doctor is acting on behalf of the hospital.” Maki v Copper
Range Co, 121 Mich App 518; 328 NW2d 430 (1982). Ostensible agency principles
do not hold a hospital liable for confirming that a doctor, who does not work directly
out of the hospital, is a member of the hospital’s “staff.” Calling a hospital referral
service and being told that the physician is a “St. John” doctor does not create a
reasonable reliance that an ostensible agency exists. VanStelle v Macaskill, 255
Mich App 1, 13-14; 662 NW2d 41 (2003). Chapa v St Mary’s Hosp of Saginaw, 192
Mich App 29, 33-34, 480 NW2d 590 (1991). Heins v Synkonis, 58 Mich App 119,
22
124, 227 NW2d 247 (1975). A hospital’s control of a facility where Plaintiff was
examined and treated by the doctor, and its name on the consent forms, signs and
logos was insufficient to create an ostensible agency. Estate of Inglis v Providence
Hospital and Medical Centers, Inc., (Unpublished, August 26, 2004).
Referrals & Concert of Action Liability. A physician who calls in or recommends
another physician is not vicariously liable unless there is an agency, concert of
action, or negligent selection. Whitmore v Fabi, 155 Mich App 333, 399 NW2d 520
(1986). Rodgers v Canfield, 272 Mich 562, 262 NW 409 (1935). Hitchcock v
Burgett, 38 Mich 501 (1878). Where one dentist broke a tooth and another came
to assist, even if the second dentist caused no harm, there may be liability for harm
caused by others if all acted jointly and in concert. Cybak v David J. Powell, DDS
(Unpublished, March 6, 2007). If a Plaintiff cannot prove which wrongdoer injured
caused the injury, joint liability may be imposed on all wrongdoers, with each
defendant having the burden of absolving themself. Abel v Eli Lilly & Co, 94 Mich
App 59, 73; 289 NW2d 20 (1979), affirmed as modified on other grounds in 418
Mich 311; 343 NW2d 164 (1984).
Negligent Granting of Privileges. The duty owed by a hospital includes
supervision of physicians, and decisions regarding the selection and retention of
medical staff. Dye v St. John Hosp. and Medical Center, 230 Mich App 661; 584
NW2d 747 (1998). To make a case, it must be shown that privileges would have
been denied but for a hospital’s negligence in reviewing the credentials for
competency. Ferguson v Gonyaw, 64 Mich App 685, 697 (1975). Bronson v Sisters
of Mercy, 175 Mich App 647, 652-3, 438 NW2d 276 (1989). The review of staff
privileges is a statutory duty under the Public Health Code, MCL 333.1101 et seq.
MCL 333.21513(a) provides that the owner of a hospital licensed is responsible for
all phases of the operation of the hospital, selection of the medical staff, and quality
of care rendered in the hospital, and MCL 333.21521, providing that a hospital shall
meet minimum standards and carry out practices to protect the public health and
safety. However, these statutory duties do not create private causes of action.
Yankoviak v Huder (Unpublished, January 15, 2008). Fisher v WA Foote Mem
Hosp, 261 Mich App 727, 730; 683 NW2d 248 (2004).
Fraudulent Misrepresentation. Fraudulent misrepresentation requires: 1) a
material representation; 2) the representation was false; 3) when made, the
defendant knew the representation was false, or made it recklessly without
knowledge of its truth; 4) the defendant made the representation with the intention
that the plaintiff act upon it; 5) the plaintiff did act in reliance upon it; and 6) as a
result, the plaintiff suffered damages. Kassab v Michigan Basic Property Ins Ass’n,
441 Mich 433, 442, 491 NW2d 545 (1992). M&D, Inc v McConkey, 231 Mich App
22, 27-28, 585 NW2d 33 (1998). Novak v Nationwide Mut Ins Co, 235 Mich App
675, 688; 599 NW2d 546 (1999). The representation must concern a past or
existing fact and not a future one. Forge v Smith, 458 Mich 198, 212 n 41, 580
NW2d 876 (1998). Kamalnath v Mercy Hospital, 194 Mich App 543, 554, 487 NW2d
499 (1992). Fraud requires: (1) a material representation; (2) the representation was
false; (3) when the representation was made, the defendant knew that it was false,
or made it recklessly, without knowledge of its truth and as a positive assertion; (4)
the representation was made with the intention that the plaintiff would act upon it;
23
(5) the plaintiff acted in reliance upon it; and (6) the plaintiff suffered damage. Belle
Isle Grill Corp v Detroit, 256 Mich App 463, 477; 666 NW2d 271 (2003).
Negligent Misrepresentation. A “negligent misrepresentation” requires that a
party justifiably rely to their detriment on information provided without reasonable
care by one owing a duty of care to the relying party. Law Offices of Lawrence J
Stockler, PC v Rose, 174 Mich App 14, 33; 436 NW2d 70 (1989).
E.
Statutory & Regulatory Law
Federal Physician Employees. Doctor employees of a medical practice group
providing medical services under Federal mandate to an under-served area of
Kentucky had “federal employee” status under the Federally Supported Health
Centers Assistance Act of 1992, 42 USC 233, and could be sued only in
accordance with the limited waiver of immunity contained in the Federal Tort Claims
Act. That act requires the plaintiffs to seek administrative relief as a prerequisite to
federal court proceedings. Where plaintiffs did not do so, dismissal without
prejudice was proper. The Federally Supported Health Centers Assistance Act of
1992, 42 USC 233, provides that certain health centers providing necessary medical
services are deemed to be employees of the Public Health Service. 42 USC
233(g)(1)(A). Lawsuits against such individuals and centers are circumscribed by
the limitations in the Federal Tort Claims Act. 42 USC 233(g)(1)(A) and 233(a). For
medical centers and care givers to qualify, the Attorney General is required to
advise the court within 15 days of the filing of any malpractice action in state court
that the named defendant or defendants are deemed to be Public Health Service
employees and that such “employees” were acting within the scope of their
employment. 42 USC 233(l)(1) and (c). Thereafter, the Attorney General must
remove the action to federal district court as a tort action against the United States
under 42 USC. 233(c). Under 28 USC 2402, an action against the United States
under section 1346 is tried by the court without a jury. Wilson v Big Sandy Health
Care, Inc., 576 F3d 329 (6th Cir. Ky. 2009). Osborn v Haley, 549 U.S. 225 (2007).
Liability for Discrimination in Granting or Renewing Privileges.
MCL
333.21513(e) provides that hospitals shall not discriminate because of race, religion,
color, national origin, age, or sex in its operation, employment, patient admission
and care, room assignment, training programs, and selection and appointment of
staff. The statute also prohibits discrimination based upon licensure or professional
education as doctors of medicine, osteopathy or podiatry. The remedy is
administrative, as no private cause of action is expressly provided for in the statute.
An adequate means to enforce the statue exists where MCL 333.20165(1)(b)
provides for the limitation, suspension, or revocation of a health facility license, as
well as administrative fines. The department of health must investigate written
complaints of those who believe a facility has violated the Code and the director
may request a prosecuting attorney or the attorney general to bring an action to
enjoin violations, which are misdemeanor crimes punishable by a $1,000 fine for
each occurrence or day that the violations continues. Lowell R Fisher v WA Foote
Memorial Hosp, 261 Mich App 727, 730; 683 NW2d 248 (2004), lv granted 471 Mich
24
957; 691 NW2d 453, vacated and leave denied, 473 Mich 888; 703 NW2d 434
(2005). Mack v City of Detroit, 254 Mich App 498, 501-502; 658 NW2d 492 (2002).
Michigan Consumer Protection Act (“MCPA”). Health care providers must
comply with the Michigan Consumer Protection Act in “entrepreneurial, commercial
or business” conduct. Among other things, the act forbids “unfair trade practices,”
including misrepresentation of the nature of services. A patient must have relied on
any misrepresentations to state a claim. The Act does not apply to medical services
or the practice of medicine. Nelson v Ho, 222 Mich App 74, 83 (1997). The Act also
exempts industries subject to comprehensive regulation such as the insurance
industry. MCL 445.901, et seq. Bell v League Life Insurance Company, 149 Mich
App 481, 387 NW2d 154 (1986). A claim of false representations to induce placing
a person in a health care facility was properly dismissed where it did not involve
“allegations of unfair, unconscionable, or deceptive methods, acts, or practices in
the conduct of the entrepreneurial, commercial, or business aspect of a physician’s
practice.” Allegations of misconduct in the actual performance of medical services
or the actual practice of medicine are improper under the MCPA. Tipton v William
Beaumont Hospital, 266 Mich App 27, 33; 697 NW2d 552 (2005).
Physician Assistant Care. A physician cannot delegate responsibility for the
quality of medical services, even if such services are actually provided by a
physician assistant. MCL 333.17048(4).
Destruction or Alteration of Medical Records. In addition to being a felony
punishable by imprisonment and loss of license, a civil claim may be made for
destruction or alteration of medical records with intent to conceal responsibility for
an injury. MCL 750.4 provides that the failure to expressly authorize a civil action
for a criminal offense does not preclude civil recovery. MCL 750.492a. Dresden v
Detroit Macomb Hospital Corporation, 218 Mich App 292, 553 NW2d 387 (1996).
People v McMurchy, 249 Mich 147 (1930).
F.
HMO & PPO Liability
HMO Liability. There are no Michigan appellate cases holding an HMO liable for
participating physician care. HMO’s are enabled under MCL 333.21001, et seq. Non
profit health care corporations may also be incorporated under the Health Care
Corporation Reform Act, MCL 550.1101, et seq. MCL 550.1409 of that Act states:
“A civil action for negligence based upon, or arising out of, the health care providerpatient relationship shall not be maintained against a health care corporation.”
Direct HMO liability has been attempted under negligent supervision, negligent
staffing, bad faith cost-containment, breach of the implied covenant of good faith,
unfair business practices, interference with the doctor/patient relationship,
intentional and negligent misrepresentation, and other theories. Vicarious liability
theories have included ostensible agency, joint enterprise, contractual
non-delegable duty, statutory non-delegable duty, and a “corporate practice of
medicine” doctrine. These have generally been unsuccessful. Cases discussing
HMO liability in Michigan include: Decker v Blue Care Network, OCCC Civ No. 8836178 (1991), where an ostensible agency as to a radiologist was allowed where
25
an HMO advertised “complete health care services.” A claim that cost-containment
caused a physician to provide poor care was rejected in Bush v Dake, No.86-25767
NM-2 (Saginaw County Circuit Court, April 27,1989). Courts have allowed recovery
on contract theories such as breach of warranty and bad faith, but contract claims
do not allow for non-economic damages such as “pain and suffering” or “mental
anguish.” Williams v HealthAmerica, 535 NE2d 717 (Ohio App, 1987). Depenbrok
v Kaiser Foundation Health, 144 Cal Rptr 724 (Cal App 1978). Pulvers v Kaiser
Foundation Health, 160 Cal Rptr 392 (Cal App 1980).
26
II.
Medical Malpractice Procedure
___________________
A.
B.
C.
D.
E.
F.
G.
H.
I.
Pre-Suit Procedural Rules
Commencement of an Action
Service of the Summons & Complaint
Appearance for a Party
Answering the Complaint
Amending Pleadings
Court Scheduling Orders
Frivolous Claims
Previously Litigated Matters (Res Judicata)
_______________________________
A.
Pre Suit Procedural Rules
Notice of Intent 182 Day Notice Period. MCL 600.2912b(1) provides that a
medical malpractice action shall not be commenced unless a Notice of Intent to file
a claim has been mailed to the last known address of each potential defendant 182
days before filing. The notice must contain: 1) the factual basis for the claim, 2) the
applicable standard of care alleged, 3) how the standard of care is claimed to have
been breached, 4) how compliance should have been achieved, and 5) how
compliance would have avoided the harm as to each facility or professional notified.
MCL 600.2912b is a constitutional procedural law which does not eliminate vested
rights, violate due process, equal protection or the separation of powers. Morrison
v Dickinson, 217 Mich App 308, 317 (1996). The date a Notice of Intent is mailed
determines the 182 day notice period. DeCosta v Gossage, 486 Mich 116, 782
NW2d 734 (2010). The plaintiff bears the burden to establish compliance with MCL
600.2912b in commencing the action. Roberts v Mecosta Co Gen Hosp (After
Remand), 470 Mich 679, 691; 684 NW2d 711 (2004) (Mecosta II). Glisson v Gerrity,
480 Mich 883; 738 NW2d 237 (2007). A plaintiff may take advantage of the 154-day
waiting period provided in MCL 600.2912b(8) where a defendant fails to make a
good-faith response to the Notice of Intent as provided for under the statute. Bush
v Shabahang, 484 Mich 156, 165-170; 772 NW2d 272 (2009).
Who Sends a Notice of Intent. A Notice of Intent may be mailed by a Personal
Representative of an estate before the formal appointment is made. Halton v
Fawcett, 259 Mich App 699, 704; 675 NW2d 880 (2003). Young v Spectrum
Health-Reed City Campus (Unpublished, May 18, 2006). A successor Personal
Representative may file a medical malpractice complaint relying on a Notice Intent
filed by an earlier Personal Representative. Braverman v Garden City Hosp, 480
Mich 1159; 746 NW2d 612 (2008) (“Braverman II”).
Where a Notice of Intent is Mailed. A Notice of Intent sent to a physician’s
attention at a hospital was not proper as it was not the doctor’s professional or
business address as required by MCL 600.2912b. Allen v Aharauka (Unpublished,
27
May 5, 2009). A Notice of Intent must be separately mailed to a professional
corporation before suing the corporation for vicarious liability. Potter v McLeary, 484
Mich 397, 402-403; 774 NW2d 1 (2009). The failure to give notice to a corporation
is not a “mere defect” subject to cure, as substantial rights are affected. The notice
of intent statute, MCL 600.2912b, controls over the nonparty at fault statute, MCL
600.2957(2). In Driver v. Naini, __ Mich __ (August 1, 2011), the Michigan Supreme
Court held that a plaintiff may not amend an original Notice of Intent to add nonparty
defendants and have the amended Notice relate back to the original filing for
purposes of tolling the statute of limitations. A notice of intent is fatally deficient, and
substantial rights are implicated, where defendant never received a timely notice of
intent. The complete failure to serve a notice of intent is not a mere defect subject
to cure. Bush and MCL 600.2301 do not allow a plaintiff to leave a defendant out of
the original notice of intent, toll the statute of limitations against it, and then “cure”
the defect by mailing an amended notice. Griesbach v Ross, P.A.-C. (Unpublished,
November 23)(Griesbach II). MCL 600.2912b(2) is satisfied by mailing the Notice
of Intent to a last known address, even if the defendant did not receive it until the
statute of limitations expired. DeCosta v Gossage, 486 Mich 116, 782 NW2d 734
(2010). A Notice of Intent mistakenly mailed to another Noticee did not toll the
statute of limitations as to defendant to whom the notice was not sent. Fournier v
Mercy Community Health Care Sys-Port Huron, 254 Mich App 461; 657 NW2d 550
(2002). A Plaintiff substantially complied with the Notice of Intent mailing
requirement even though the Notice was addressed to “11 South Monroe”, when the
correct address was “111.” Plaintiff reasonably believed “11" to be correct based
upon a previously responded to mailing. The statute does not require a signed
receipt to prove mailing. Smith v Amaria, Unpublished, March 26, 2009).
Statutorily Compliant Notice of Intent Requirements. A plaintiff does not have
to craft a Notice of Intent “with omniscience.” Good-faith averments that provide
details responsive to the information sought by the statute, and which are as
particularized as is consistent with the early notice stage of the proceedings, are
sufficient. If, when considered as a whole, a Notice of Intent sets forth the claimed
basis of a malpractice action, it is sufficient under the statute. Decker v Stoiko, __
Mich App __; --- NW2d --- (March 30, 2010). The statute does not require a
claimant to set forth the legal and employment relationships between the parties or
state a theory of vicarious liability in a notice to a corporation, even if that is the only
claim asserted against the corporation. Potter v McLeary, 484 Mich 397, 402-403;
774 NW2d 1 (2009). MCL 600.2912b requires that all required information be
present in a readily decipherable form, but not in any particular format. Boodt v
Borgess Medical Center, (2008). Dismissal of Plaintiff’s complaint was not
warranted where it was filed one day before the 182 day notice period expired, as
filing one day early did not affect any substantial rights. Zwiers v Growney, 286 Mich
App 38, 42; 778 NW2d 81 (2009). Where a Notice of Intent did not differentiate
among the various defendants, and did not identify the standard of care applicable
to each of the different healthcare providers, the notice was inadequate under MCL
600.2912b(4). Watson v Detroit Receiving Hospital (Unpublished, April 24, 2007).
Where a notice of intent stated only that if the standard of care had been followed
the decedent would not have died, the notice was inadequate. Tousey v Brennan,
275 Mich App 535, 538; 739 NW2d 128 (2007). It is not sufficient to merely state
28
that alleged negligence caused an injury. MCL 600.2912b(4)(e) requires that a
notice of intent more precisely state the manner in which it is alleged that the breach
was a proximate cause of the injury. Roberts v Mecosta Co Gen Hosp (After
Remand), 470 Mich 679, 699-700 n 16; 684 NW2d 711 (2004) (Roberts II). In
cases involving a loss of a chance of survival, the Notice of Intent does not have to
state that the chance of obtaining a more favorable result would have been at least
51 percent or higher. Bush v Shabahang, 484 Mich 156, 165-170; 772 NW2d 272
(2009). Potter v McLeary, 484 Mich 397 (2009).
Tolling the Statute of Limitations During the Notice Period. MCL 600.5856(c)
tolls the statute of limitations if it would otherwise run during the notice period.
There is no tolling if the 182-day notice period runs before the period of limitations
does. Omelenchuk v City of Warren, 461 Mich 567, 573-574, 609 NW2d 177
(2000). A plaintiff may not amend an original Notice of Intent to add nonparty
defendants and have the amended Notice relate back to the original filing for
purposes of tolling the statute of limitations. Driver v. Naini, __ Mich __ (August 1,
2011). A timely mailed Notice of Intent tolls the statute of limitations despite it being
defective under MCL 600.2912b. MCL 600.2301, which allows for amendment and
disregard of errors or defects where the substantial rights of the parties are not
affected and justice is otherwise served, applies to defects in a Notice of Intent as
to previously notified persons and entities. A two-pronged test determines the
applicability of MCL 600.2301: 1) whether a substantial right of a party is implicated
and, 2) whether a cure is in the furtherance of justice. Medical malpractice
defendants are generally sophisticated enough to understand the claims made
notwithstanding defects in a Notice of Intent, so no substantial rights are implicated.
Bush v Shabahang, 484 Mich 156; 772 NW2d 272 (2009). Potter v McLeary, 484
Mich 397 (2009). Griesbach v Ross, P.A.-C. (Griesbach II)(Unpublished, November
23). As to the furtherance of justice, a good faith attempt to comply with MCL
600.2912b(4) is sufficient. Only when a plaintiff has not made a good faith attempt
to comply is a dismissal of the action without prejudice proper. Boodt v Borgess
Medical Ctr (“Boodt II”), 481 Mich 558, 563; 751 NW2d 44 (2008)and Roberts v
Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 699-701; 684 NW2d 711
(2004) were over-ruled on the issue. Swanson v Port Huron Hospital, __ Mich App
__; --- NW2d --- (June 24, 2010).
Challenging a Notice of Intent. MCR Court Rule 2.112(L)(2) was amended in May
2010 to provide that unless there is good cause, (a) all challenges to a notice of
intent must be made by motion, filed pursuant to MCR 2.119, at the time the
defendant files its first response to the complaint, whether by answer or motion.
MCR 2.118 allows amendment of a pleading once as a matter of course within 14
days after being served with a responsive pleading by an adverse party, or within
14 days after serving the pleading if it does not require a responsive pleading. MCL
600.2301 applies to Notices of Intent and allows for amendment of any process or
pleading, either in form or substance on such terms as are just, at any time before
a judgment is rendered. 2004 amendments to MCL 600.5856 clarified the role of a
Notice of Intent. The former statute, MCL 600.5856(d), had been interpreted as
precluding tolling of the statute of limitations for Non-compliant Notices of Intent.
The amended statute clarified that tolling is generally determined by the timeliness
29
of the notice despite any defects. Given that Notices of Intent are served at an early
stage of proceedings, defects are to be expected. MCL 600.2301, allowing for
amendments and disregard of “any error or defect” which does not affect the
substantial rights of the parties where curing the defect furthers the ends of justice,
applies to such defects. The requirements of MCL 600.2301 are met when a party
makes a good-faith attempt to comply with the content requirements of MCL
600.2912b. Bush v Shabahang, 484 Mich 156; 772 NW2d 272 (2009). A statement
of the standard of care need not contain an explicit statement of a corporate
defendant’s direct or vicarious liability. Statements providing adequate notice of a
vicarious liability theory are sufficient. Esselman v Garden City Hosp, 284 Mich App
209; 772 NW2d 438 (2009).
Reduction of the 182 Day Notice Period. The pre-suit notice period is reduced
to 154 days if a notified party fails within that time to send a written response to the
notice stating: (a) the factual basis for any defense to the claim, (b) the standard of
practice applicable to the action and that the health professional or health facility
complied with that standard, (c) the manner in which there was compliance with the
applicable standard of practice or care, and (d) the manner in which the alleged
negligence was not the proximate cause of the claimant’s alleged injury. MCL
600.2912b(7) & (8). Where a defendant does not make a good faith attempt to reply
to pre-suit notice of intent, the 154-day waiting period applies. Bush v Shabahang,
484 Mich 156, 772 NW2d 272 (2009). If a health professional or facility informs the
claimant in writing that they do not intend to settle the claim, the action may be
commenced immediately. MCL 600.2912b(9). The 182-day notice period is reduced
to 91 days if all of the following are present: (a) the claimant has previously filed a
182-day notice against other health professionals or health facilities involved in the
claim, (b) the 182-day notice period has expired as to those health professionals or
facilities, (c) the claimant has commenced an action alleging medical malpractice
against one or more of the health professionals or facilities; and (d) the claimant did
not, and could not have, reasonably have identified the health professional or facility
as a potential party to the action before filing the complaint. MCL 600.2912b(3),
Omelenchuk v City of Warren, 461 Mich 567 (2000).
Access to Medical Records During Notice Period. Under MCL 600.2912b(5),
within 56 days of proper notice, the claimant shall provide access to all medical
records pertinent to the claim and provide signed record releases. Within 56 days
of proper notice, the health care facilities or professionals notified must provide the
claimant access to all medical records. This does not restrict any other rights to
access records.
B.
Commencement of an Action
Affidavit of Merit Must be Filed With the Complaint. MCL 600.2912d(1) and
MCR 2.112(L) require that to commence a medical malpractice action, plaintiff must
file with the Complaint an Affidavit of Merit signed by a health professional who the
attorney reasonably believes meets the requirements for an expert witness under
MCL 600.2169. Scarsella v Pollak, 461 Mich 547, 549; 607 NW2d 711 (2000)
(Scarsella II). Young v Sellers, 254 Mich App 447, 450; 657 NW2d 555 (2002).
30
McElhaney v Harper-Hutzel Hosp, 269 Mich App 488, 494-495; 711 NW2d 795
(2006). Bates v Gilbert, 479 Mich 451, 456; 736 NW2d 566 (2007). Vanslembrouck
v Halperin, 277 Mich App 558; 747 NW2d 311 (2008). Affidavits of Merit must
contain a statement as to each of the following:
1.
2.
3.
4.
The claimed appropriate standard(s) of care;
How the standard of care was breached;
What conduct was required to comply with the standard of care; and
How the breach caused injury. MCL 600.2912d(1).
In Dube v St. John Hosp. & Med. Ctr. (Unpublished, May 16, 2006), the Court held
that an Affidavit of Merit must be filed even if the theory is res ipsa loquitur (where
the alleged negligence “speaks for itself”). Even if a clerical mistake is the cause
of an Affidavit of Merit to not being timely filed, the statute of limitations will run and
bar the action. Young v Sellers, 254 Mich App 447, 451; 657 NW2d 555 (2002).
Where Plaintiff’s first complaint, filed with an Affidavit of Merit, was voluntarily
dismissed and the second complaint was served with an Affidavit of Merit, but it was
not filed with the court, the Court of Appeals allowed the action, holding that Plaintiff
had not “wholly” failed to file an Affidavit of Merit. Duvall v Bronson Methodist
Hospital, (Unpublished October 28, 2008). MCL 600.2912d did not require dismissal
for noncompliance when the plaintiff did not obtain an affidavit of merit until 2½
months after she filed her medical malpractice complaint, but a copy of the affidavit
was served with the summons and complaint. While the statute plainly states that
an affidavit of merit "shall" be filed with a complaint, the statute does not address
the consequences of not filing the affidavit at the time of the complaint. VandenBerg
v VandenBerg, 231 Mich App 497, 498, 500-502; 586 NW2d 570 (1998). A belated,
but-conforming, affidavit of merit filed as an exhibit to defendants motion was
sufficient to comply with MCL 600.2912d and to defeat summary disposition where
it was filed before the statute of limitations had run. Wood v Bediako, 272 Mich App
558, 561-562; 727 NW2d 654 (2006). Hanna v Dario Merlos, D.D.S., (Unpublished,
December 14, 2010).
Motion to File a Late Affidavit of Merit. If records are not provided by a notified
party as required under MCL 600.2912b(6) within 56 days of receipt of the notice,
an Affidavit of Merit may be filed up to 91 days after the complaint is filed. Karr v
Boodin (Unpublished, February 9, 2006). MCL 600.2912b(5). On motion for good
cause shown, the court may allow an additional 28 days to file the affidavit. MCL
600.2912d(2). The twenty-eight-day extension is from the time the complaint was
filed, not the date of entry of the order. Eskew v Sethavaranguru, (Unpublished,
June 29, 2001). The filing of the motion alone will not toll the statute of limitations.
Only the entered written order granting the motion will toll the period of limitation.
Barlett v North Ottawa Community Hosp, 244 Mich App 685, 690-692; 625 NW2d
470 (2001). Moya-Jure v Iung, (Unpublished, May 11, 2004). Young v Sellers, 254
Mich App 447, 451; 657 NW2d 555 (2002).
Valid Affidavit Requirements. MCL 600.2912d requires an “affidavit,” not merely
a statement. An “affidavit” is a technical term that requires an oath or affirmation
being “taken before a person having authority to administer such oath or
31
affirmation.” Affidavits must be “confirmed by the oath or affirmation of the party
making it, taken before a person having authority to administer such oath or
affirmation.” MCL 55.287 governs the notary requirements for affidavits in the State
of Michigan. MCL 55.287(2) requires, among other things, that on each notarized
record, the notary public clearly indicate all of the following: (a) The name of the
notary public exactly as it appears on his or her notary public certificate of
appointment. (b) The statement: “Notary public, State of Michigan, County of___.”.
(c) The statement: “My commission expires___.”. (d) The statement: “Acting in the
County of ___.” The act also states: (9) A notary public shall not perform any
notarial act on a record that contains a blank space. An unsworn, unsigned or
otherwise improper affidavit does not commence an action. To constitute a valid
affidavit, the document must be a written statement of facts, made voluntarily, and
confirmed by oath or affirmation of the party making the statement. Holmes v
Michigan Capital Medical Center, 242 Mich App 703, 711-712; 620 NW2d 319
(2000). People v Sloan, 450 Mich 160, 177, n. 8, 538 NW2d 380 (1995). Black’s
Law Dictionary (7th ed.). Vanslembrouck v Halperin, 277 Mich App 558; 747 NW2d
311 (2008). A document that plaintiff’s expert signed, purporting to be an “Affidavit
of Merit,” which was not notarized to confirm an “oath or affirmation, taken before
a person having authority to administer such oath or affirmation” is not a valid
affidavit and is insufficient to commence an action or toll the period of limitations.
Moelke v McPherson Hosp. Emergency Dept., (Unpublished, May 11, 2004). A valid
affidavit must be 1) a written or printed statement of facts, 2) made voluntarily, and
3) confirmed by the oath or affirmation of the party making it, taken before a person
having authority to administer such oath or affirmation. People v Sloan, 450 Mich
160, 177 n 8; 538 NW2d 380 (1995). The failure to properly notarize an affidavit
renders a complaint null and void as a matter of law. Glancy v Steinberg
(Unpublished, June 24, 2003). An affidavit was not invalid due to an incomplete
“jurat.” Dismissal was proper where the affidavit was not signed in a notary’s
presence. Arnold v MidMichigan Med. Ctr. – Midland (Unpublished, July 26, 2007).
Valid “Foreign” Affidavit Requirements. Out of state affidavits prepared in
conformity with the Uniform Recognition of Acknowledgments Act (“URAA”), MCL
565.268 are acceptable Affidavits of Merit. MCL 600.2102(4), containing restrictive
procedures for authenticating out of state affidavits is an alternative acceptable
method. Apsey v Memorial Hosp, 477 Mich 120, 131; 730 NW2d 695 (2007).
Vanslembrouck v Halperin, 277 Mich App 558; 747 NW2d 311 (2008). State
affidavit requirements do not apply in federal court diversity actions, as they are
procedural rules and state procedures have no application in federal court cases
under Erie R.R. Co. and Fed.R.Civ.P. 8(a). Long v Adams (U.S. District Court
Eastern District of Michigan, January 23, 2006).
Affidavits of Merit Are Presumed Valid. An Affidavit of Merit is presumed valid
and tolls the statute of limitations until successfully challenged. If the challenge is
successful, the case is dismissed without prejudice. Kirkaldy v Rim, 478 Mich 581,
583-586, 734 NW2d 201 (2007). Potter v McLeary, 484 Mich 397, 408, 774 NW2d
1, (2009). Hoffman v Barrett (Unpublished, June 03, 2010). The Kirkaldy Court
limited Scarsella v Pollak, 461 Mich 547, 607 NW2d 711 (2000) to holding that there
is no tolling of the statute of limitations for complaints filed without Affidavits of
32
Merit, as opposed to those filed with non-compliant affidavits. Kirkaldy overruled
Geralds v Munson Healthcare, 259 Mich App 225, 240, 673 NW2d 792 (2003) and
Mouradian v Goldberg, 256 Mich App 566, 574, 664 NW2d 805 (2003) which had
extended Scarsella by holding that complaints with non-conforming Affidavits of
Merit also failed to toll the statute of limitations. MCR 2.112(L)(2)(b) and MCR
2.118(D) were amended by the Michigan Supreme Court in May 2010 to provide
that Affidavits of Merit or Meritorious Defense may be amended in accordance with
MCR 2.118 and MCL 600.2301. MCR 2.118 allows amendment once as a matter
of course within 14 days after being served with a responsive pleading by an
adverse party, or within 14 days after serving the pleading if it does not require a
responsive pleading. MCL 600.2301 allows the amendment of any process or
pleading, in form or substance, on such terms as are just, at any time before a
judgment is rendered. It also provides that the court shall disregard any error or
defect in the proceedings which does not affect the substantial rights of the parties.
MCR 2.118(D). MCR 2.118(D) now provides that an amendment of an Affidavit of
Merit or Meritorious Defense relates back to the date of the original filing. However,
in Ligons v. Crittenton Hospital, __ Mich __, (July 29, 2011), the Michigan Supreme
Court held that reiterated that a medical malpractice suit be dismissed with
prejudice if a defective Affidavit of Merit is filed after both the limitations period and
the saving period have expired. The case was decided under the older MCR
2.118(D) which did not expressly authorize amendments to Affidavits of Merit. The
court held that permitting such amendment would effectively repeal the statutory
affidavit of merit requirement. The court further held that MCL 600.2912d(1) sets
forth several requirements for Affidavits of Merit and the failure to include any of the
required information renders the affidavit insufficient. The court held that an Affidavit
of Merit is not a “pleading” that may be amended under the older version of MCR
2.118. Although the timely filing of a defective Affidavit of Merit tolls the limitations
period until a court finds it defective, an Affidavit of Merit filed during a saving
period after the limitations period has expired tolls nothing, as the limitations period
has run and the saving period may not be tolled.
Affidavits of Merit & Unqualified Experts. Affidavits of Merit must be signed by
an expert who is reasonably believed to qualify as an expert under MCL
600.2169(1). MCL 600.2169 states requirements for experts in medical malpractice
actions. It requires, among other things, that any expert specialize in the same
specialty as the defendant, and if the defendant is board certified, the expert must
also be board certified in that specialty, or teach in a qualified institution in the same
specialty as the defendant. Greathouse v Rhodes, 242 Mich App 221, 231; 618
NW2d 106 (2000) rev’d in part on other grounds 465 Mich 885 (2001). Decker v
Flood, 248 Mich App 75, 85-87, 638 NW2d 163 (2001). Watts v Canady, 253 Mich
App 468, 471-472; 655 NW2d 784 (2002). Howard v Zamorano, (Unpublished,
October 14, 2004). At the Affidavit of Merit stage, the only information is publicly
accessible resources to determine board certifications and specialization. That
limitation is considered when determining the reasonableness of an attorney’s
belief. Plaintiff’s attorney held a reasonable belief regarding an expert’s
qualifications when he consulted the American Medical Association website and
found no vascular surgery board certification. Grossman v Brown, 470 Mich 593,
33
599-600, 685 NW2d 198 (2004). It was unreasonable to believe that an
ophthalmologist was qualified to testify against an optometrist. Bates v Gilbert, 479
Mich 451, 458, 736 NW2d 566 (2007). MCL 600.2169(1)(a) requires an identity of
board certifications as to the care at issue, but not as to unrelated specialties a
defendant may also have. Vincent v Genesys Reg’l Med. Ctr. (Unpublished, April
6, 2006). Matching board certification does not require matching sub-specialties.
Franzel v Kerr Mfg Co, 234 Mich App 600, 620; 600 NW2d 66 (1999). Tate ex rel
Estate of Hall v Detroit Receiving Hosp, 249 Mich App 212, 215; 642 NW2d 346
(2002). McDougall v Schanz, 461 Mich 15, 25 n 9; 597 NW2d 148 (1999). Nippa v
Botsford General Hosp, 251 Mich App 664, 673; 651 NW2d 103 (2002). Counsel
has an affirmative duty to review an expert’s Curriculum Vitae as to qualifications
before filing an Affidavit of Merit. It is unreasonable to form a belief as to the
qualifications of an expert based upon beliefs of a third party without making inquiry
of the expert. Geralds v Munson Healthcare, 259 Mich App 225, 232-233; 673
NW2d 792 (2003), reversed on other grounds in Kirkaldy v Rim, 478 Mich 581,
583-586, 734 NW2d 201 (2007). Although the testimony of an ob/gyn was not
admissible against a nurse midwife, counsel’s belief was reasonable for the purpose
of an affidavit of merit where at the time the complaint was filed the claim focused
on physicians and staff. McElhaney v Harper-Hutzel Hosp, 269 Mich App 488; 711
NW2d 795 (2006). An expert is not qualified to sign an Affidavit of Merit where he
practices only 20-24 hours a week. Practicing medicine in a teaching hospital is not
formally instructing students, and does not fulfill the requirements of MCL
600.2169(1)(b)(ii). Giusti v Mt. Clemens General Hospital, (Unpublished, December
2, 2003). An Affidavit of Merit of a ob/gyn is insufficient against a nurse practitioner.
Gillespie v Lansing OB-GYN Assocs. (Unpublished, February 26, 2004). Plaintiffs’
counsel could not have reasonably believed that an affidavit of a cardiologist was
sufficient against a cardiothoracic surgeon. Slaggert v Michigan Cardiovascular
Institute, P.C. (Unpublished, July 6, 2006). Dismissal was proper where an Affidavit
of Merit was signed by a dermatologist against a plastic surgeon. Kapp v Colony
(Unpublished, May 9, 2006). It was reasonable for counsel to rely on erroneous
information provided by a hospital as to a physician’s specialty. Kurz v Detroit
Osteopathic Hospital, (Unpublished, September 26, 2006). Where a review of an
expert’s Curriculum Vitae would have revealed that Plaintiff’s expert was not in
active practice in the year preceding the negligence, dismissal was proper.
Newsome v Bono (Unpublished, November 14, 2006).
Affidavits of Merit & Inadequate Content. The contents of an Affidavit of Merit
must sufficiently state the required elements set forth in MCL 600.2912d. No
particular form is required. If an Affidavit of Merit, considered as a whole,
adequately addresses the required elements, it complies with the statute. Esselman
v Garden City Hosp, 284 Mich App 209; 772 NW2d 438 (2009). An affidavit which
fails to adequately address the statutory requirements is non-conforming. An
affidavit which simply stated that as a direct result of the failure to comply with the
applicable standard of care a baby was delivered stillborn was insufficient to allege
causation. Bailey v Pornpichit, (Unpublished, August 8, 2006). Where an affidavit
of merit failed to indicate that the expert reviewed the notice of intent allegations,
failed to indicate the appropriate standard of care, and failed to articulate the
manner in which the defendant’s conduct foreseeably caused the injury, it failed to
meet the statutory requirements of MCL 600.2912d. Smith v Joy (Unpublished,
34
August 8, 2006). Where the Affidavit of Merit did not state how delayed treatment
caused a metastasis of cancer, the affidavit was insufficient and dismissal was
proper. Schneemilch v Shields, (Unpublished, October 17, 2006). Where a nursing
expert failed to state how the alleged negligence caused injury, dismissal was held
proper. Newsome v Bono (Unpublished, November 14, 2006).
Affidavit of Merit Only Required for an Original Complaint. MCL 600.2912d
only requires the filing of an Affidavit of Merit with the original complaint. By its own
terms, MCL 600.2912d(1) does not require an additional Affidavit of Merit for an
amended complaint. Further, where discovery is not available until after plaintiff files
a complaint and affidavit of merit, an Affidavit of Merit is not required to contain
information that could not have been known. As with a Notice of Intent, both are
provided at the earliest stage of a medical malpractice proceeding. King v Reed,
278 Mich App 504; 751 NW2d 525 (2008).
Affidavit of Merit Required for Each Health Care Provider Whose Conduct Is
At Issue. A plaintiff may not avoid the requirements of MCL 600.2912d(1) and MCL
600.2169 by naming only the hospital as a defendant. An institutional defendant is
incapable of committing independent action, so medical malpractice actions are
necessarily premised on vicarious liability. The standard of care is that standard
applicable to each agent who is alleged to have been negligent. All procedural
requirements apply to claims against the hospital as if its agents were actually
named. Therefore, when a plaintiff files a medical malpractice action against a
hospital, an Affidavit of Merit from health care professionals practicing in the same
field as the agents alleged to have breached the standard of care must be filed with
the complaint. Cox v Flint Bd of Hosp Managers, 467 Mich 1, 12-15; 651 NW2d 356
(2002). Nippa v Botsford General Hospital, 251 Mich App 664, 651 NW2d 103
(2002). Nippa v Botsford Gen Hosp (On Remand), 257 Mich App 387, 391-393; 668
NW2d 628 (2003). Accord Sturgis Bank & Trust Co v Hillsdale Community Health
Ctr, 268 Mich App 484, 492; 708 NW2d 453 (2005).
Affidavit of Merit by Nurse Valid for Causation. MCL 600.2169 only requires that
an Affidavit of Merit be from an expert in the same health care profession as the
defendant. Therefore, an Affidavit of Merit signed by a nurse was sufficient under
MCL 600.2912d(1) to commence an action, even if a nurse does not have the
qualifications necessary to establish the required proximate cause portion of the
affidavit. MCL 600.2912d refers exclusively to MCL 600.2169(1) and was not
intended by the Legislature to incorporate MCL 600.2169(2) which goes to the
assessment of the broader qualifications of an expert beyond the areas of practice
stated in MCL 600.2169(1). A medical malpractice plaintiff is “only required to
submit an affidavit of an expert practicing or teaching in the same health care
profession as those accused of wrongdoing and that the affidavit contain the
necessary elements listed in MCL 600.2912(1)(a)-(d).” Sturgis Bank & Trust Co v
Hillsdale Comm Health Ctr, 268 Mich App 484, 491-492; 708 NW2d 453 (2005), lv
den 479 Mich 854, 735 NW2d 206 (2007).
Affidavits of Merit Against Nonphysicians. An affidavit of merit signed by a
physician, was insufficient against a nurse practitioner. MCL 600.2169(1) requires
35
a nurse practitioner to attest to the alleged negligence of a nurse practitioner. The
terms “general practitioner” and “specialist” as used in the expert witness statute,
MCL 600.2169(1)(a) and (c), apply only to physicians, but an expert must also meet
the requirement of MCL 600.2169(1)(b). Cox v Flint Board of Hosp Mgrs, 467 Mich
1; 651 NW2d 356 (2002). MCL 600.2169(1)(b)(i) and (ii) apply to all health
professionals, and require that an affiant or expert, during the year immediately
preceding the alleged malpractice, must have either devoted a majority of
professional time to the active clinical practice of the same health profession as the
alleged negligent professional or have taught such students at an accredited health
professional school and in the same area of concentration as the alleged negligent
professional. MCL 600.2169(1)(b)(ii). Where a plaintiff’s expert failed to satisfy the
statutory requirements, a claim is properly dismissed. Bogus v Sawka (Unpublished,
January 24, 2006).
Complaints with Defective Affidavits of Merit Must Still Be Answered. A
defendant must timely answer or file a responsive pleading to a complaint, or be
subject to entry of a default. A unilateral belief that an Affidavit of Merit does not
conform to MCL 600.2912d is not “good cause” to fail to respond timely to a
Complaint, and is not a proper basis to challenge entry of a default. The Defendant
was properly defaulted for failure to timely respond, and the default did not need to
be set aside. Saffian v Simmons, 477 Mich 8, 13; 727 NW2d 132 (2007).
Affidavits of Merit and the Statute of Limitations. Filing of a medical malpractice
Complaint without an affidavit of merit is insufficient to commence an action and
stop the statute of limitations. Scarsella v Pollack 461 Mich 547,607 NW2d 711
(2000). Hadley v Ramah, 134 Mich App 380, 384-385, 351 NW2d 305 (1984).
Stephenson v Union Guardian Trust Co, 289 Mich 237, 241-242, 286 NW 226
(1939). Even if an affidavit is signed timely, if a clerical mistake results in it not
being filed before the running of the statute of limitations, the statute of limitations
will run and bar the action. “The existing case law construing the statutory authority
governing medical malpractice actions states that the failure to timely file a
complaint and an affidavit of merit will not toll the applicable limitations period.”
Young v Sellers, 254 Mich App 447, 450; 657 NW2d 555 (2002). Scarsella v Pollak,
232 Mich App 61, 62-63; 591 NW2d 257 (1998) (“Scarsella I”), aff’d 461 Mich 547;
607 NW2d 711 (2000) (“Scarsella II”). Holmes v Michigan Capital Medical Ctr, 242
Mich App 703, 711-712; 620 NW2d 319 (2000). Young v Sellers, 254 Mich App
447; 657 NW2d 555 (2002).
Proper Party Plaintiffs. Generally, the injured person is the one with “standing” to
bring a lawsuit. An action must be prosecuted in the name of the real party in
interest. MCR 2.201(B). “A real party in interest is one who is vested with a right of
action in a given claim, although the beneficial interest may be with another.” A
minor cannot sue on his or her own behalf. If a minor does not have a conservator,
the court shall appoint a competent and responsible person to appear as Next
Friend for the minor. MCR 2.201(E)(1)(b). The Next Friend then becomes the real
party in interest, even though the beneficial interest rests with the minor. Rohde v
Ann Arbor Pub Schools, 265 Mich App 702, 705; 698 NW2d 402 (2005). The
appointment of a Next Friend is made prior to, or simultaneously, with the filing of
a complaint. Bowden v Hutzel Hosp, 252 Mich App 566, 569; 652 NW2d 529 (2002)
The Next Friend is responsible for the costs of the action. MCR 2.201(E)(1)(b). A
36
complaint filed for a minor without a Next Friend was subject to dismissal. Cotter v
Britt, (Unpublished May 31, 2007).
Complaints Must Plead All Claims from Transaction or Occurrence. MCR
2.203(A) requires a plaintiff to join all claims arising out of the same transaction or
occurrence, including any medical malpractice claims. ISB Sales Co v Dave’s
Cakes, 258 Mich App 520, 526-527; 672 NW2d 181 (2003).
Venue. Statutory law establishes the proper court where a lawsuit should be tried.
Generally, the county where the original injury occurred is the proper county for
venue, if either plaintiff or a defendant resides or conducts business there. MCL
600.1629. A trial court’s decision concerning a motion for a change of venue is
reviewed under a clearly erroneous standard. Huhn v DMI, Inc., 215 Mich App 17,
18, 544 NW2d 719 (1996).
Venue in Wrongful Death Claims. In Wrongful Death cases, venue is proper
where the “original injury” resulting in death occurred, not where the death occurred.
An original injury cannot ordinarily be an ongoing event. Karpinski v St John
Hospital-Macomb Center Corp, 238 Mich App 539, 543-545, 606 NW2d 45 (1999).
MCL 600.1629. Pickering v Lakeland Reg. Health Sys. (Unpublished, March 23,
2006). The “injury” in a loss of opportunity to survive case is the death, not the
original injury. Wickens v Oakwood Healthcare System, 465 Mich 53, 60-61; 631
NW2d 686 (2001). For venue, the “original injury” for MCL 600.1629 was not the
misdiagnosis, but the subsequent cardiac arrest. Dutko v Rim, (Unpublished, April
11, 2006). Where negligent advice is given by telephone, the claim arises in the
county where the advice is received. Anthony v Forgrave, 126 Mich App 489, 337
NW2d 546 (1983). Tthe location of treatment after defendants’ services in reading
an x-ray was determinative of venue, as the “original injury” resulting from the
allegedly negligent radiology services occurred when the treating doctor acted in
reliance on the x-ray. Taha v Basha Diagnostics, PC, 275 Mich App 76; 737 NW2d
844 (2007).
Venue Must be Challenged in the First Responsive Pleading. A motion for
change of venue must be filed with, or before, the Answer to the Complaint. A
Court may order a change of venue only upon the motion of a party. MCR
2.223(A)(1). Bursley v Fuksa, 164 Mich App 772, 417 NW2d 602 (1987). An action
otherwise brought in an improper county may remain there unless a timely motion
is brought for a change of venue. Pietrangelo v Burns Clinic Medical Center, 179
Mich App 302, 445 NW2d 194 (1989). Anthony v Forgrave, 126 Mich App 489, 337
NW2d 546 (1983). MCR 2.221. MCL 600.1651. In order to be “conducting business”
in a county, a physician must have a real, systematic, continued business presence
in the county. Pulcini v Doctor’s Clinic, 158 Mich App 56, 404 NW2d 702 (1987).
Any party may move for change of venue, otherwise proper, on the basis of
hardship, inconvenience or where justice so requires. Generally, the convenience
of the parties and witnesses is the key consideration, but such change is within the
court’s discretion. MCL 600.1629. MCR 2.222. Dayton Mall Motor Inn v Honeywell,
Inc., 132 Mich App 174, 347 NW2d 15 (1984). Cray v General Motors Corp., 389
Mich 382, 207 NW2d 393 (1973). A change of venue motion brought on
convenience grounds under MCR 2.222 is reviewed for an abuse of discretion.
37
Hunter v Doe, 61 Mich App 465, 467, 233 NW2d 39 (1975). Kokx v Bylenga, 241
Mich App 655, 658-659, 617 NW2d 368 (2000). Where defendants’ principal office
was in another county, part of the claim arose there, and most counsel, witnesses
and records were in another county, it was an abuse of discretion not to change
venue. Brown v Hillsdale Co Rd Comm, 126 Mich App 72, 79, 337 NW2d 318
(1983). Hickman v General Motors Corp, 177 Mich App 246, 251-252, 441 NW2d
430 (1989). Lorencz v Ford Motor Co, 439 Mich 370, 375, 483 NW2d 844 (1992).
Complaint Allegations Not Made in the Notice of Intent. A complaint which
raises issues not raised in the Notice of Intent fails to comply with the notice
requirements of MCL 600.2912b(4)(c). Gulley-Reaves v Baciewicz, 260 Mich App
478, 484; 679 NW2d 98 (2004). Newton v Medina (Unpublished, April 18, 2006).
Complaints Must Be Plead with Specificity & Allege All Elements. Complaints
must contain a statement of the facts and the specific allegations necessary
reasonably to inform the adverse party of the nature of the claims. MCL 2.111(B).
Nationsbanc Mortgage Corp of Georgia v Luptak, 243 Mich App 560, 566; 625
NW2d 385 (2000). The primary function of a pleading is to give notice of the nature
of the claim or defense sufficient to permit the opposite party to take a position.
Stanke v State Farm Mut Automobile Ins Co, 200 Mich App 307, 317; 503 NW2d
758 (1993). 1 Martin, Dean & Webster, Michigan Court Rules Practice, p 186. A
party may not expand the claims of malpractice beyond the allegations in the
complaint unless leave to amend is granted by the Court. Bishop v St. John
Hospital, 140 Mich App 720, 364 NW2d 290 (1984). A Complaint must allege all
elements of a cause of action, including the applicable standard of care, the breach
of that standard, the nature of the injury, and proximate cause between the breach
and the injury alleged. Locke v Pachtman, 446 Mich 216, 222 (1994). Where the
alleged malpractice is within the knowledge of ordinary lay persons, it may be pled
less specifically, but a medical malpractice complaint generally must allege with
reasonable definiteness every fact necessary to constitute a cause of action. Smith
v Stolberg, 231 Mich App 256, 259; 586 NW2d 103 (1998). MCR 2.111(B).
Weymers v Khera, 454 Mich 639, 654-8 (1997). Dacon v Transue, 441 Mich 315,
332-3 (1992). Simonelli v Cassidy, 336 Mich 635, 59 NW2d 28 (1953). Where a
complaint does not plead vicarious liability, a Defendant is not on reasonable notice
of such a claim. A plaintiff's theory in a medical malpractice case must be pleaded
with specificity and the proofs must be limited in accordance with the theories
pleaded. MCR 2.111(B)(1). Badalamenti v William Beaumont Hospital-Troy, 237
Mich App 278, 602 NW2d 854 (1999).
C.
Service of a Summons & Complaint
Service on an Individual & “Personal” Jurisdiction.
Jurisdiction over a
defendant is governed by the United States Constitution and the constitution and
laws of the State of Michigan. Due process requires a defendant to be informed of
a lawsuit by the best means available under the circumstances. MCL 600.701 et
seq. MCR 2.105(A)(1) provides that process may be served on an individual by
“delivering a summons and a copy of the complaint to the defendant personally.”
Informing the defendant of the nature of the papers, offering them to the defendant,
and leaving them within the defendant’s physical control is required for valid
38
personal service. Barclay v Crown Building and Development, Inc. 241 Mich App
639, 617 NW2d 373 (2000).
Service on an Individual by Mailing. MCR 2.105(A)(2) also allows service of the
Summons and Complaint on an individual by registered or certified mail restricted
to the addressee, with return receipt requested. Service by registered mail is
complete only when the defendant acknowledges receipt and a copy of the signed
return receipt is filed with the court as proof of service. MCR 2.107(B)(1)(a)
provides, “the original service of the summons and complaint must be made on the
party as provided by MCR 2.105.” Although MCR 2.107(C)(3) goes on to provide
that “by mail is complete at the time of mailing,” where a defendant does not sign
for the summons and complaint until after the summons has expired, dismissal
without prejudice is required. MCR 2.102(E)(1). MCR 2.504(E). Mitan v Reznick,
(Unpublished, June 15, 2004).
Inadequate Service. An objection to personal jurisdiction must be raised in the first
responsive pleading, or it is waived. MCR 2.111(F)(2). In re Gordon Estate, 222
Mich App 148, 158; 564 NW2d 497 (1997). Laying documents on the body of a sick
man unable to understand their meaning is not valid service. People ex rel Midler
v Judge of the Superior Court, 38 Mich 310 (1878). Sliding a subpoena under the
door is not sufficient to make personal service. People v Featherstone, 93 Mich App
541, 286 NW2d 907 (1979).
Service on an Evasive Witness. Informing witness, through the door, of the
nature of document and affixing it to the door was sufficient personal service for an
evasive witness where the purpose of MCR 2.105 is to provide actual notice of the
hearing/trial etc. Barclay v Crown Bldg and Develop, 241 Mich App 639 (2000).
Service on Corporations. Service on a corporation, including professional
corporations, may be obtained by 1) serving a summons and complaint on an officer
or the resident agent or 2) serving a summons and complaint on a director, trustee,
or person in charge of an office of the corporation and sending a summons and
complaint by registered mail, addressed to the principal office of the corporation.
Challenging Defective Service. MCR 2.116(I)(3) does not require a jury trial to
determine whether service of process was sufficient. A general appearance did not
waive objections to the sufficiency of service of process under MCR 2.116(C)(3) if
a defendant raises such objections under MCR 2.116(D)(1) by raising the issue in
the first responsive pleading or motion, whichever is filed first. Al-Shimmari v Detroit
Medical Ctr, 477 Mich 280; 731 NW2d 29 (2007). An action shall not be dismissed
for improper service of process unless the service failed to inform the defendant of
the action within the time provided for service of process. MCR 2.105(J)(3). Hill v
Frawley, 155 Mich App 611, 613, 400 NW2d 328 (1986). Where a Summons is not
served with a Complaint, there is a complete failure of service and dismissal is
required. The summons notifies a party that an action has been commenced, and
informs the defendant of his rights and duties in the action, including the time limits
for responding to the complaint. Holliday v Townley, 189 Mich App 424, 426, 473
NW2d 733 (1991). In re Gordon Estate, 222 Mich App 148, 158, 564 NW2d 497
39
(1997). The jury trial requirement applies to issues of fact regarding service of
process bearing on motions brought under MCR 2.116(C)(7). Al-Shimmari v
Rengachary (Unpublished, November 1, 2005).
Expiration of Summons & Second Summons. MCR 2.102(E) provides that a
party not served before expiration of a summons is to be dismissed “unless the
defendant has submitted to the court’s jurisdiction.” A summons is effective for 91
days. Within the life of the original summons, an order for a second summons may
be granted. Moriarity v Shields, 260 Mich App 566, 572-573; 678 NW2d 642 (2004).
A second summons issued pursuant to such order may extend for up to a year from
the date the complaint was filed if “good cause” is shown. Good cause exists only
if Plaintiff has made diligent efforts to serve the original process. MCR 2.102(D).
Bush v Beemer, 224 Mich App 457 (1997). “Half-hearted” service efforts are not
good cause even where dismissal results in the case being barred by the statute of
limitations. Friedman v Estate of Presser, 929 F2d 1151, 1157 (CA 6, 1991).
Richards v McNamee, 240 Mich App 444, 613 NW2d 366 (2000). If plaintiff
presents no facts showing good cause for a second summons, issuance is an
abuse of discretion. Dep’t of Transportation v Randolph, 461 Mich 757, 768; 610
NW2d 893 1208 (2000). Under MCR 2.102(E)(1), on expiration of the summons, the
action is deemed dismissed without prejudice as to unserved defendants. MCR
2.102 provides no authority for issuing a third summons. Hyslop v Wojjusik, 252
Mich App 500, 652 NW2d 517 (2002).
D.
Appearance for a Party
Appearances Generally. A party who enters a general appearance and contests
a cause of action on the merits submits to the court’s jurisdiction and waives service
of process objections. In re Gordon Estate, 222 Mich App 148, 158; 564 NW2d 547
(1997). Generally, any action on the part of a defendant that recognizes the pending
proceedings, with the exception of objecting to the court’s jurisdiction, will constitute
a general appearance. Only two requirements must be met to render an act
adequate to support the inference that there is an appearance: (1) knowledge of the
pending proceedings and (2) an intent to appear. Penny v ABA Pharmaceutical Co
(On Remand), 203 Mich App 178, 181- 182; 511 NW2d 896 (1993). Ragnone v
Wirsing, 141 Mich App 263, 265; 367 NW2d 369 (1985). A party that submits to the
court’s jurisdiction may not be dismissed for not having received service of process.
MCR 2.102(E)(2). If an attorney files a paper with the court, the filing is deemed
notice of the attorney’s appearance. Woods v SLB Prop Mgt, LLC, 277 Mich App
622, 625; 750 NW2d 228 (2008). Evans v Grosse Pointe Public School System,
(Unpublished, October 22, 2009).
E.
Answering the Complaint
Answering the Complaint. An answer to the Complaint must be filed within 21
days after plaintiff files a proper affidavit of merit. MCL 600.2912e. Where plaintiff
fails to file an affidavit of meritorious claim as required by MCL 600.2912d, a
defendant still must answer the complaint.
40
Specific Denials Required. An answer, just as the allegations in a complaint, must
be sufficiently specific to allow adequate notice of what a defense is. A general
“neither admit nor deny” may not be an adequate answer to an allegation. MCR
2.111(D). Stanke v State Farm, 200 Mich App 307, 318 (1993). 1 Martin, Dean &
Webster, Michigan Court Rules Practice.
Affidavits of Meritorious Defense. MCL 600.2912e(1) provides that a Defendant
must file an Affidavit of Meritorious Defense within 91 days of plaintiff filing an
Affidavit of Merit. The affidavit must be by a health care professional in the same
specialty as the defendant and contain:
A.
B.
C.
D.
The factual basis for each defense,
The standard of care alleged applicable in compliance with same,
How compliance with the standard of care occurred,
How, if applicable, the alleged injury was not related to the care and
treatment rendered.
If the Plaintiff has not provided medical records as required under MCL
600.2912b(5) within 56 days of receipt of the notice, an affidavit of meritorious
defense may be filed up to 91 days after answering the Complaint. MCL
600.2912e(2).
Qualification of Expert Signing Affidavit of Meritorious Defense. The plain
language of MCL 600.2912e(1) only requires that an attorney reasonably believe
that the expert meets the expert qualification requirements of MCL 600.2169. It
does not require that the expert actually meet those requirements. Grossman v
Brown, 470 Mich 593, 599, 685 NW2d 198 (2004). Brown v Hayes, 477 Mich 966;
724 NW2d 470 (2006).
Late or Defective Affidavits of Meritorious Defense. An affidavit of meritorious
defense is mandatory under MCL 600.2912e(1) but the statute does not provide a
remedy for noncompliance. The grant or denial of motion for default for a
defendant’s failure to file a timely affidavit of meritorious defense is a matter of
discretion. Costa v Community Emergency Med Svcs, 263 Mich App 572, 581; 689
NW2d 712 (2004). The court should consider the reasons for the delay, the actions
the defendant took to apprise the plaintiff and the court of the reason for delay, any
prejudice to plaintiff resulting from the delay, and any other relevant factors before
determining any sanction. Wilhelm v Mustafa, 243 Mich App 478, 485; 624 NW2d
435 (2000). A default was inappropriate where plaintiff suffered no prejudice and did
not raise the issue before trial. Kowalski v Fiutowski, 247 Mich App 156, 161,
165-166; 635 NW2d 502 (2001). Gawlik v Rengachary, 270 Mich App 1, 9; 714
NW2d 386 (2006).
Defenses Not Limited to the Affidavit of Meritorious Defense. MCL 600.2912e
does not limit the scope of evidence that a defendant may present at trial to the
contents of the affidavit. Although MCL 600.2912e(1)(a) requires a defendant to
state a factual basis for each defense to the claims against it, a detailed statement
is not required as it is impractical and unrealistic to require the parties to explicitly
41
detail all relevant facts that support their claims. Haque v William Beaumont
Hospital, (Unpublished, January 20, 2005).
Affidavit of Meritorious Defense Signed by Defendant. A Defendant may sign
the affidavit of meritorious defense. Romanek v Girardot (Unpublished, December
8, 2003). MCL 600.2912e(1) permits a defendant to file an affidavit of meritorious
defense on his own behalf if not represented by an attorney, it is reasonable as a
matter of law for defendant’s attorney’s to believe that the defendant could execute
the affidavit of meritorious defense on his own behalf. But co-defendant’s reliance
on another defendant’s affidavit of meritorious defense will not satisfy MCL
600.2912e(1) and MCR 2.112(L) as an affidavit is required. Bates v Gilbert,
(Unpublished, August 16, 2005)
Affidavit of Noninvolvement. A defendant not involved directly or indirectly in the
claim may file an affidavit of non-involvement instead of an answer. The affidavit
shall result in dismissal without prejudice after 90 days unless discovery shows the
defendant’s involvement. MCL 600.2912c.
F.
Amending Pleadings
Amendment of Pleadings Generally.
MCR 2.118(A)(4) provides that
amendments to pleadings must be numbered consecutively. Unless otherwise
indicated, an amended pleading supersedes the former pleading. An amended
pleading that is complete in itself and does not refer to or adopt a former pleading,
supersedes the former pleading, and the prior pleading is considered withdrawn.
Nippa v Botsford General Hospital, 251 Mich App 664, 651 NW2d 103 (2002). If,
considered as a whole, a notice of intent sets forth the claimed basis of a
malpractice action, an amended complaint consistent with the notice of intent did
not assert any “new” potential causes of injury. Decker v Stoiko, __ Mich App __;
--- NW2d --- (March 30, 2010). An amended pleading may introduce new facts,
theories, or a different cause of action if arising from the same transaction or
occurrence set forth in the original pleading. LaBar v Cooper, 376 Mich 401, 406,
137 NW2d 136 (1965). MCR 2.116(I)(5). Doyle v Hutzel Hospital, 241 Mich App
206, 615 NW2d 759 (2000). Weymers v Khera, 454 Mich 639, 658, 563 NW2d 647
(1997). Dacon v Transue, 441 Mich 315, 328, 490 NW2d 369 (1992). Hakari v Ski
Brule, Inc, 230 Mich App 352, 355, 584 NW2d 345, (1998). Amendments restating
claims already made are futile, as are amendments adding allegations that still fail
to state a claim. Lane v Kindercare Learning Centers, Inc, 231 Mich App 689, 697,
588 NW2d 715 (1998). Amended pleadings supersede the original complaint. MCR
2.118(A)(4). Grzesick v Cepela, 237 Mich App 554, 562, 603 NW2d 809 (1999).
Amending the Complaint. An initial pleading may be amended as a matter of
course within 14 days. MCR 2.118(A)(1). Thereafter, a motion is required and
allowance of amendments is discretionary, but amendments are to be freely granted
where justice requires. MCR 2.118(A)(2). The Court may find prejudice where a
party seeks to add claims after discovery is closed, or the matter is on the verge of
trial, where the opposing party had no reasonable notice of the claim or theory. The
rules governing amendment of pleadings are designed to facilitate amendment
42
except where it would result in unfair prejudice. Motions to amend are discretionary,
but should ordinarily be granted. They may be denied for reasons such as undue
delay, bad faith, dilatory motive, repeated failure to cure deficiencies in prior
amendments, undue prejudice, or futility. If a trial court grants summary disposition,
the court must allow an opportunity to amend the pleadings unless an amendment
would be futile. If the trial judge denies a request for an amendment, specific
findings must be made on the record as to why justice would not be served. Ben P
Fyke & Sons v Gunter Co, 390 Mich 649, 659, 213 NW2d 134 (1973). Ter Haar v
Hoekwater, 182 Mich App 747, 750, 452 NW2d 905 (1990).
Amending Affirmative Defenses. Affirmative defenses may be amended under
the same rules for amending the complaint. Dunmore v Babao, 149 Mich App 140
(1986). Terhaar v Hoekwater, 182 Mich App 747 (1990). Gordin v William Beaumont
Hospital, 180 Mich App 48 (1989). Gardner v Stodgel, 175 Mich App 241 (1989).
Davis v Chrysler Corp., 151 Mich App 463, 473-474 (1986). Welke v Kuzilla, 140
Mich App 658 (1985). Coffey v State Farm Mutual, 183 Mich App 723 (1990).
Harvey v Security Services, Inc., 148 Mich App 260 (1986). Cape v Howell Board
of Education, 145 Mich App 459 (1985). Grzesick v Cepela, 237 Mich App 554, 564,
603 NW2d 809 (2000).
Relation Back of Amendments & Affidavits of Merit. MCR 2.118(D) provides
that an amendment that adds a claim or a defense relates back to the date of the
original pleading if the claim or defense asserted in the amended pleading arose out
of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in
the original pleading. MCR 2.118(D) was amended effective May 2010 to add that
in a medical malpractice action, an amendment of an affidavit of merit or affidavit
of meritorious defense relates back to the date of the original filing of the affidavit.
Substitution of Parties. MCR 2.202(A)(1)(b) provides that if a party dies and the
claim is not extinguished, the court may order substitution of the proper parties, but
if no motion is made within 91 days after filing and service of a statement of the fact
of the death, the action must be dismissed as to the deceased party, unless there
is no prejudice to another party by allowing a later substitution. Where allowing a
late substitution of a party is discretionary and no motion to substitute an estate was
made until four months after a notice of death was filed, dismissal of the case was
upheld. Babbish v Spencer, (Unpublished, September 16, 2008). See: Zurich Ins
Co v Logitrans, Inc, 297 F3d 528, 530 (CA 6, 2002).
Amendments to Conform to the Evidence. MCR 2.118(C) governs the
amendment of complaints at trial. 2.118(C)(1) provides that if issues not plead are
tried by express or implied consent, they are treated as if plead, and a motion to
amend to conform to the evidence may be made and granted at any time, even
after judgment. Under MCR 2.118(C)(2), if evidence is objected to at trial on the
ground that it is not within the pleadings, an amendment shall not be allowed unless
the amendment and admission of evidence would not prejudice the objecting party.
The court may grant an adjournment to enable the objecting party to meet the
evidence. Zdrojewski v Murphy, 254 Mich App 50, 66; 657 NW2d 721 (2002).
G.
Court Scheduling Orders
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Scheduling Orders Generally. Under MCR 2.401(B)(1)(b) a trial court has
authority to enter a scheduling order setting deadlines for discovery, witness lists
and other matters. A trial court has discretion to disallow conduct or witnesses not
in conformity with its order. People v Grove, 455 Mich 439, 464-465, 566 NW2d
547 (1997). MCR 2.401(B)(2) and (I)(2). Carmack v Macomb Co Community
College, 199 Mich App 544, 546, 502 NW2d 746 (1993). Dean v Tucker, 182 Mich
App 27, 31, 451 NW2d 571 (1990). An abuse of discretion will be found only in
extreme cases where the result is “palpably and grossly violative of fact and logic.”
Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 227, 600 NW2d 638
(1999). Marrs v Bd of Medicine, 422 Mich 688, 694, 375 NW2d 321 (1985).
Spalding v Spalding, 355 Mich 382, 384-385, 94 NW2d 810 (1959).
Witness Lists & Amendments. MCR 2.401(I) provides that a witness list must
include the name of each witness, the witness’s address, if known, whether the
witness is an expert, and the field of expertise. A party who fails to list witnesses
may be barred from calling any at trial. Allowing an amendment to substitute an
expert is within the court’s discretion. Tisbury v Armstrong, 194 Mich App 19, 20,
486 NW2d 51 (1992). Butt v Giammariner, 173 Mich App 319, 321, 433 NW2d 360
(1988). LaCourse v Gupta, 181 Mich App 293, 448 NW2d 827 (1989). Herrera v
Levine, 176 Mich App 350 439 NW2d 378 (1989). Factors considered in allowing
an untimely witness list include: 1) whether the violation was wilful or accidental; 2)
the history of refusing to comply with discovery requests or to disclose witnesses;
3) prejudice to the parties; 4) actual notice of the witness and the time prior to trial
such notice was received; 5) whether there is a history of deliberate delay; 6) the
degree of compliance with other provisions of the court’s order; 7) an attempt to
timely cure the defect; and 8) whether a lesser sanction better serves the interests
of justice. Dean v Tucker, 182 Mich App 27, 31, 451 NW2d 571 (1990). Bass v
Combs, 238 Mich App 16, 26-27; 604 NW2d 727 (1999). Where the party seeking
to disallow a witness was dilatory in bringing a motion for relief, a witness may be
allowed. Estate of Dively v William Beaumont Hospital, (Unpublished, June 22,
2004). State Hwy Comm v Redmon, 42 Mich App 642; 202 NW2d 527 (1972).
H.
Frivolous Claims
Pleadings Must Be Well Grounded in Fact and Warranted by Law. The
signature of an attorney or party on a pleading is a certification that the pleading is
well grounded in fact and warranted by law or a good faith argument for extension
of the law. An action may be deemed to be “frivolous” where 1) the primary purpose
was to harass, embarrass or injure, 2) no reasonable basis existed to believe that
the facts of the claim were true, or 3) the party’s legal position was devoid of
arguable merit. MCR 2.114. MCL 600.2591.
Sanctions for Frivolous Actions. MCL 600.2591, MCR 2.114(E) and MCR
2.625(A)(2) allow a court to impose sanctions on both parties and attorneys for
bringing a frivolous claim. The reasonableness of an attorney's inquiry into the
factual and legal viability of a pleading is reviewed under an objective standard.
LaRose Market, Inc v Sylvan Center, Inc, 209 Mich App 201, 210; 530 NW2d 505
(1995), and depends on the particular facts and circumstances of the case, Louya
44
v William Beaumont Hospital, 190 Mich App 151, 164; 475 NW2d 434 (1991). The
focus is on the attorney's efforts to investigate the claim at the time it was filed. In
re Stafford, 200 Mich App 41, 42; 503 NW2d 678 (1993). If an attorney has violated
MCR 2.114(D), sanctions are mandatory. Contel Systems Corp v Gores, 183 Mich
App 706, 710-711; 455 NW2d 398 (1990). If a court finds an action or defense
frivolous, it shall order actual costs, and possibly fees, to be paid by the party or
attorney asserting the claim. An improper purpose, or bad faith, is not needed if an
action is not well grounded in fact or law. Briarwood v Faber’s Fabrics, 163 Mich
App 784, 415 NW2d 310 (1987). John J Fannon Co v Fannon Products, LLC, 269
Mich App 162, 171; 712 NW2d 731 (2005). MCR 2.114(F) grants the trial court
discretion to fashion an appropriate sanction which may include, but is not limited
to, paying the opposing party reasonable expenses including attorney fees.
FMB-First Mich. Bank v Bailey, 232 Mich App 711, 726; 591 NW2d 676 (1998).
I.
Previously Litigated Matters
Joinder of Claims. MCR 2.203(A) requires plaintiffs to join all claims arising out
of the same transaction or occurrence, including medical malpractice claims. ISB
Sales Co v Dave’s Cakes, 258 Mich App 520, 526-527; 672 NW2d 181 (2003). A
later judgment or dismissal with prejudice resolves all claims arising out of the same
transaction or occurrence which were raised or, with reasonable diligence, could
have been raised in the action. Summary judgment on the statute of limitations is
an adjudication on the merits. Washington v Sinai Hosp. of Greater Detroit, 478
Mich 412, 733 NW2d 755 (2007).
Law of the Case Doctrine. The law of the case doctrine provides that where an
appellate court has ruled on a legal question and remanded the case for further
proceedings, the legal question determined will not be decided differently on a
subsequent appeal. The doctrine only applies to appellate decisions. CAF
Investment Co v Saginaw Twp, 410 Mich 428, 454, 302 NW2d 164 (1981). Baks v
Moroun, 227 Mich App 472, 498, 576 NW2d 413 (1998).
Res Judicata. Res judicata means “the thing was already litigated.” The doctrine
bars re-litigating issues that were, or should have been, litigated in the previous
lawsuit. When final judgment is entered on a claim, all rights with respect the claim
out of which the transaction or occurrence from which the claim arose are also
extinguished. Factors in determining whether there is a single claim include:
relatedness in time, space, origin, or motivation, and whether the events form a
convenient unit for trial. If there is a substantial similarity a second action should
be precluded. Jones v State Farm Mutual Auto Ins Co, 202 Mich App 393, 397, 509
NW2d 829 (1993). The related doctrine of bar precludes re-litigating the same
cause of action between the same parties. Rogers v Colonial Fed Sav & Loan
Ass’n, 405 Mich 607, 275 NW2d 499 (1979). Union Guardian Trust Co v Rood, 308
Mich 168, 172, 13 NW2d 248 (1944). A dismissal on the statute of limitations is a
“decision on the merits,” and res judicata bars a later action. Al-Shimmari v Detroit
Medical Ctr, 477 Mich 280; 731 NW2d 29 (2007). Washington v Sinai Hosp of
Greater Detroit, 478 Mich 412, 418; 733 NW2d 755 (2007).
45
46
III.
Causation
________________
A.
B.
C.
Cause in Fact
Proximate (Legal) Cause
Aggravation of Preexisting Conditions
______________________
Causation Generally. Causation encompasses two distinct aspects: cause in fact
and legal cause. A defendant’s actions must be both a cause in fact and a legal
cause of an injury for a plaintiff to recover. Prosser and Keaton, Torts (5th ED),
§42, pp. 272-273, 279. Cause in fact requires a showing that the injuries would not
have occurred but for defendants’ negligent conduct. A plaintiff must present
substantial evidence from which a jury may conclude that more likely than not, but
for the defendant’s conduct, the plaintiff’s injuries would not have occurred. To
establish legal or proximate cause, the plaintiff must show that it was foreseeable
that the defendant’s conduct could create a risk of harm to the victim, and that the
result of that conduct and those of intervening causes were foreseeable. Haliw v
Sterling Heights, 464 Mich 297, 310, 627 NW2d 581 (2001). Weymers v Khera, 454
Mich 639, 647, 563 NW2d 647 (1997). An explanation that is consistent with known
facts but not deducible from them constitutes impermissible conjecture. Skinner v
Square D Co, 445 Mich 153, 164-165, 516 NW2d 475 (1994). Moning v Alfono, 400
Mich 425, 439, 254 NW2d 759 (1977).
A.
Cause in Fact
Cause in Fact Generally. The plaintiff must present substantial evidence from
which a jury may conclude that more likely than not, but for the defendant’s conduct,
the plaintiff’s injuries would not have occurred. Kaminski v Grand Trunk W R Co,
347 Mich 417, 422; 79 NW2d 899 (1956). MCL 600.2912a(2). Dykes v Williams
Beaumont Hosp, 246 Mich App 471, 476-482; 633 NW2d 440 (2001). Thomas v
McPherson Community Health Ctr, 155 Mich App 700, 705; 400NW2d 629 (1996).
Badalamenti v William Beaumont Hospital-Troy, 237 Mich App 278, 285-286; 602
NW2d 854 (1999), quoting Skinner v Square D Co, 445 Mich 153, 164-165; 516
NW2d 475 (1994). Case v Consumers Power Co, 463 Mich 1, 6 n 6; 615 NW2d 17
(2000). Cause in fact generally requires a showing that “but for” the defendant’s
actions, the plaintiff’s injury would not have occurred. Haliw v Sterling Heights, 464
Mich 297, 310; 627 NW2d 581 (2001). Where plaintiff’s expert admitted surgery to
remove a tumor would have been required no matter what, and could not say a less
invasive surgery could have been performed, causation was not established.
Gilmore v Jankowski, (Unpublished, June 19, 2003). Although the defendant’s
credibility was not challenged, Plaintiff’s expert testifying that the standard of care
required more prompt surgery contradicted the doctor’s testimony that he would
have done nothing differently, creating a question of fact on the issue of causation.
47
Martin v Ledingham, __ Mich __ (December 10, 2010), reversing 282 Mich App 158;
774 NW2d 328 (2009). White v Taylor Distributing Co, 482 Mich 136, 141 (2008).
Where a doctor’s assertion that he would not have acted differently or intervened
sooner despite not being informed of plaintiff's changing condition was speculative
and self-serving, and Plaintiff's expert testimony called into question the credibility
of the surgeon by asserting that the standard of care required swifter intervention,
a question of fact existed on causation. Ykimoff v Foote Mem Hosp, 285 Mich App
80; 776 NW2d 114 (2009).
Circumstantial Evidence and Cause In Fact. Cause in fact may be established
by circumstantial evidence, but the evidence must not be speculative and must
support a reasonable inference of causation. Wiley v Henry Ford Cottage Hosp, 257
Mich App 488, 496; 668 NW2d 402 (2003). Expert testimony on the cause of death
was inadequate where the expert could not testify to a medical probability
concerning the cause of injury or that an earlier diagnosis have avoided plaintiff’s
death. Pennington v Longabaugh, 271 Mich App 101; 719 NW2d 616 (2006).
Rare Conditions and Proximate Cause. Although a condition is rare, if it is known
that it can occur it can be a proximate cause. However, rarity remains relevant to
the issue of compliance with the standard of care. Estate of Jones v Detroit Medical
Center, __ Mich App __; --- NW2d ---- (May 20, 2010). The fact that an aortic
dissection was not foreseeable did not eliminate the duty to act in accordance with
the standard of care. The modern trend is to eliminate foreseeable consequences
as a test of proximate cause, except where an independent, responsible,
intervening cause is involved. The determination of remoteness should seldom, if
ever, be summarily determined. Davis v Thornton, 384 Mich 138, 147; 180 NW2d
11 (1970), quoting 38 Am Jur, Negligence, §§ 58, 709-710. Lockridge v Oakwood
Hosp., 285 Mich App 678, 684; 777 NW2d 511 (2009).
Speculation as to Cause is not Permitted. A mere possibility of causation is not
enough. Proof on causation must amount to a reasonable likelihood of probability.
When the matter remains in the realm of speculation or conjecture, or the
probabilities are evenly balanced, the court should direct a verdict for the defendant.
A plaintiff must set forth specific facts that would support a reasonable inference of
a logical sequence of cause and effect. The evidence need not negate all other
possible causes, but such evidence must exclude other reasonable hypotheses with
a fair amount of certainty. Circumstantial evidence must be subject to reasonable
inferences and cannot consist of mere speculation. An explanation consistent with
known facts but not deducible from them is impermissible conjecture. Conjecture
is simply an explanation consistent with the facts or conditions, it is not necessarily
a reasonable inference from them. Craig v Oakwood Hosp, 471 Mich 67, 93; 684
NW2d 296 (2004). Genna v Jackson, 286 Mich App 413, 418; 781 NW2d 184
(2009). Skinner v Square D Co, 445 Mich 153, 164, 516 NW2d 475 (1994).
Mulholland v DEC Int’l Corp, 432 Mich 395, 416 n 18, 443 NW2d 340 (1989).
Helmus v Dep’t of Transportation, 238 Mich App 250, 255, 604 NW2d 793 (1999).
Badalamenti v William Beaumont Hospital-Troy, 237 Mich App 278, 602 NW2d 854
(1999). Weymers v Khera, 454 Mich 639, 647-8 (1997). M Civ JI 15.01. There must
be facts in evidence to support the opinion testimony of an expert. 75A Am Jur 2d,
48
Negligence, § 461, p 442. Teal v Prasad, 283 Mich App 384, 391; 772 NW2d 57
(2009). Liability can be imposed for a failure to adequately report only if the
diagnosis or treatment would have been altered. Martin v Ledingham, 282 Mich App
158, 161; 774 NW2d 328 (2009), rev’d on question of fact grounds — Mich —
(December 10, 2010).
Substantial Factor Requirement. When other factors contribute to an injury, a
defendant’s conduct is not a “proximate cause” unless it is a substantial factor.
Brisboy v Fibreboard Corp, 429 Mich 540, 547-549, 418 NW2d 650 (1988). Glinski
v Szylling, 358 Mich 182, 203, 99 NW2d 637 (1959). McLean v Rogers, 100 Mich
App 734, 737, 300 NW2d 389 (1980). Restatement of Torts, 2nd, §431, page 428.
Schutte v Celotex Corp., 196 Mich App 135, 492 NW2d 773 (1992).
Loss of a Chance of Survival or Better Result. To recover for the loss of an
opportunity to survive, or to achieve a better result, a plaintiff must show that had
the defendant not been negligent, there was a greater than fifty percent chance of
survival or of a better result. Dykes v Williams Beaumont Hosp, 246 Mich App 471,
476-482; 633 NW2d 440 (2001). To recover for loss of an opportunity to achieve a
better result, a plaintiff must show that the alleged malpractice reduced the
difference in the opportunity by more than 50 percent. MCL 600.2912a(2). Fulton
v William Beaumont Hosp, 253 Mich App 70, 83; 655 NW2d 569 (2002). An
“obvious retrospective conclusion does not establish Plaintiff’s chance of cure on
the later date was literally zero simply because the Plaintiff died. Kuper v
Metropolitan Hosp, (Unpublished, January 27, 2005). Where Plaintiff’s expert
testified that plaintiff initially had an 80 to 90 percent chance of being cured until the
alleged failure to timely treat, the difference between an 80 or 90 percent chance
of recovery and zero satisfied MCL 600.2912a(2). Bevis v Bartholomew, D.O.,
(Unpublished, June 20, 2006). A living plaintiff cannot recover for a loss of
opportunity to survive under the statute because a lost opportunity claim must
include those injuries actually suffered and not possible future injuries, such as
death. Wickens v Oakwood Healthcare System, 465 Mich 53, 60-62; 631 NW2d 686
(2001). The Fulton decision was poorly reasoned, but controlling. A lost chance
theory is potentially available where a plaintiff cannot prove that a defendant’s
actions were the cause of his injuries, but can prove that the defendant’s actions
deprived him of a chance to avoid those injuries. However, many “lost chance”
cases are actually traditional claims of malpractice under the same facts. Stone v
Williamson, 482 Mich 144; 753 NW2d 106 (2008). The injury in the case of a
traditional medical malpractice claim is the injury or loss of life itself, whereas the
injury in a lost opportunity case is the loss of the opportunity for survival or a better
result. A court may still consider the risk of death as a part of the calculation of the
“opportunity to achieve a better result.” Lanigan v Huron Valley Hosp., 282 Mich
App 558; 766 NW2d 896 (2009).
B.
Proximate (Legal) Cause
Proximate Cause Generally. “Proximate cause” is a term of art involving both
cause in fact and legal cause. Craig v Oakwood Hosp, 471 Mich 67, 86; 684 NW2d
296 (2004). After causation in fact is shown, legal or “proximate” cause must be
49
proven. “Proximate” also considers the foreseeability of the consequences of
conduct and public policy considerations. Proximate causation in a malpractice
claim is no different than in an ordinary negligence claim. It is well-established that
there can be more than one proximate cause contributing to an injury. O'Neal v St.
John Hosp & Medical Center, 487 Mich 485, 490; --- NW2d --- (2010). A proximate
cause produces consequences without the intervention of any independent,
unforeseen cause without which the injuries would not have occurred. McMillian v
Vliet, 422 Mich 570, 576; 374 NW2d 679 (1985). Helmus v Dep’t of Transportation,
238 Mich App 250, 255, 604 NW2d 793 (1999). Ridley v Collins 231 Mich App 381,
590 NW2d 69 (1998). Moning v Alfono, 400 Mich 425, 437-9 (1977). Ross v Glaser,
220 Mich App 183, 192, 559 NW2d 331 (1996). Charles Reinhart Co. v Winiemko,
444 Mich 579, 586, n 13 (1994). Social policy may limit ability. Poe v City of
Detroit, 179 Mich App 564 (1989). Heitch v Hampton, 167 Mich App 629 (1988).
The existence of proximate cause is ordinarily for the jury to decide, but if public
policy issues exist, or reasonable minds could not differ, the issue is a matter of law.
Moll v Abbott Laboratories, 444 Mich 1, 14, 506 NW2d 816 (1993). Vesetula v
Whitmyer, 187 Mich App 675, 682, lv den 439 857 (1991). Marcelletti v Bathani, 198
Mich App 655, 662, (1993). Weymers v Khera, 454 Mich 639, 647-8 (1997).
Sizemore v Smock, 430 Mich 283, 293 (1988).
Equal Possibilities for Causation. “Negligence is not established if the evidence
lends equal support to inconsistent conclusions or is equally consistent with
contradictory hypotheses.” Badalamenti v William Beaumont Hosp-Troy, 237 Mich
App 278, 286; 602 NW2d 854 (1999). There may be two or more plausible
explanations as to how an event happened or what produced it; yet, if the evidence
is without selective application to any one of them, they remain conjecture. If
evidence points to any one theory of causation, indicating a logical sequence of
cause and effect, then there is a basis for liability notwithstanding other plausible
theories of causation. Skinner v Square D Co, 445 Mich 153, 166; 516 NW2d 475
(1994). Robins v Garg (On Remand), 276 Mich App 351, 362; 741 NW2d 49 (2007).
The Proximate Cause In Statutory Law.
Where a statute refers to “the
proximate” such as in the Worker’s Disability Compensation Act (WDCA), MCL
418.101 et seq., or the Governmental Tort Liability Act (GTLA), MCL 691.140 et
seq., MCL 691.1407(2)(c) “the proximate cause” must be the one most immediate,
efficient, and direct cause of the injury or damage. Paige v City of Sterling Hts, 476
Mich 495, 524; 720 NW2d 219 (2006), overruling Hagerman v Gencorp Automotive,
457 Mich 720; 579 NW2d 347 (1998). Where the plaintiff was intoxicated at the time
of an accident that caused a leg fracture and then alleged negligent treatment of the
fracture causing a further injury, the plaintiff was not 50 percent or more the cause
of the injury from the malpractice due to intoxication under MCL 600.2955a becasue
the injury arising from the medical treatment was not the fracture, but a separate
and distinct injury (pain and clawing of the toes from compartment syndrome).
Under MCL 600.2955a(1) plaintiff’s impairment from alcohol must be the one
proximate cause of the injury. Beebe v Richard J. Hartman, Jr., D.O., __ Mich App
__; --- NW2d --- (November 9, 2010).
50
Intervening & Superseding Causes. An act or omission is not a proximate cause
simply because it allows another force to cause injury. A defendant is not liable for
harm that prior negligence helped bring about where the injury is from a an
unforeseeable superseding cause. Brown v Michigan Bell (On Remand), 225 Mich
App 617, 625, 572 NW2d 33 (1997). Whether an intervening act is a superseding
cause is usually a question of fact for the jury. Cay v Richard’s Industries, Inc, 170
Mich App 665, 669; 428 NW2d 734 (1988). A superseding cause intervenes to
prevent a defendant from being liable for harm which the defendant’s antecedent
negligence was a substantial factor in causing. Ridley v City of Detroit, 231 Mich
App 381, 390; 590 NW2d 69 (1998). To relieve a negligent defendant from liability,
an intervening force must not be reasonably foreseeable. Ridley v Collins 231 Mich
App 381, 590 NW2d 69 (1998). Hickey v Zezulka, 439 Mich 408, 437, 487 NW2d
106 (1992). Mowery v Crittenton Hospital, 155 Mich App 71, 400 NW2d 633 (1986).
Nicholson v Children’s Hospital of Michigan, 139 Mich App 434, 363 NW2d 1
(1984). Taylor v Wyeth Laboratories, Inc., 139 Mich App 389, 362 NW2d 293
(1984). A defendant is not negligent for failure to anticipate improper or wrongful
acts of another. Wright v Delray Railroad Co., 361 Mich 619, 627 (1960). Munson
v Vane-Stecker Co., 347 Mich 377, 393-394 (1956).
Expert Testimony on Causation. Expert testimony that the alleged malpractice
was a cause in fact of plaintiff’s injury and that the injury was a natural and
probable, or reasonably anticipated, result of the negligent conduct is almost always
required unless the relationship is obvious to a layperson. M Civ JI 15.01. Ghezzi
v Holly, 22 Mich App 157, 163, 177 NW2d 247 (1970). Miles v Van Gelder, 1 Mich
App 522, 536, 137 NW2d 292 (1965). Moore v Foster, 96, Mich App 317, 321, 292
NW2d 535 rev’d on other grounds 410 Mich 863(1980). Wallace v Garden City
Hospital, 111 Mich App 212, 216, 314 NW2d 557 Rev’d on other grounds, 417 Mich
907, 330 NW2d 850 (1981). There is insufficient proof of causation where an expert
opinion is hypothetical. Neblett v Henry Ford Health Sys. (Unpublished, January 31,
2006). An expert opinion cannot establish malpractice when based on assumptions
not in accord with the established facts. MRE 703. Testimony by Plaintiff’s pediatric
neurologist, Dr. Gabriel, was insufficient to establish causation where it was a
hypothesis, and the science was still developing. Nudell v Oakwood Healthcare,
Inc., (Unpublished, August 3, 2006).
Nurses Cannot Establish Proximate Cause. Nurses lack the education, training,
knowledge and experience to testify whether a retained sponge caused the
decedent’s cancer to spread and lead to her death. Nurses do not engage in the
practice of medicine. Cox v Flint Bd of Hosp Managers, 467 Mich 1, 17-20; 651
NW2d 356 (2002). Under MRE 702, a nurse is not qualified to give expert testimony
regarding the standard of care for a physician. Waati v Marquette General Hosp,
Inc, 122 Mich App 44, 48-49; 329 NW2d 526 (1982). Kirkaldy v Rim, 251 Mich App
570; 651 NW2d 80 (2002)(Overruled on other grounds in Kirkaldy v Rim, 477 Mich
1063; 728 NW2d 862 (2007). Estate of Renswick v Providence Hospital and
Medical Centers, Inc. (Unpublished, June 3, 2004).
Plaintiff’s Negligence Causing the Treatment. A Plaintiff’s lack of concern over
his or her health may be a proximate cause of an injury which also is alleged to be
the result of medical treatment. Conduct without which an injury would not have
51
occurred, but which provides the occasion or opportunity for another event to
produce an injury is not a proximate cause. A proximate cause of an injury is not
necessarily the immediate cause, or the cause nearest in time, distance, or space.
Assuming a direct, natural and continuous sequence between an act and an injury,
an act can be a proximate cause without regard to its separation from the injury by
time or distance. Shinholster v Annapolis Hosp, 471 Mich 540; 685 NW2d 275
(2004). Parks v Starks, 342 Mich 443, 448; 70 NW2d 805 (1955), 38 Am Jur,
Negligence, § 55, p 703. Singerman v Muni Service Bureau, Inc, 455 Mich 135,
145, 146; 565 NW2d 383 (1997). 57A Am Jur 2d, Negligence, § 473, p 454.
Egg Shell Plaintiffs. A tort feasor may be liable for aggravating a condition even
where it is unknown and the negligence results in an injury greater than a
reasonable person should have foreseen. This rule applies not only where the
peculiar physical condition which makes the injuries greater than expected is
unknown, but also where the condition is unknown to anyone until after the harm is
sustained. A defendant has been held liable for pain caused by a pre-existing brain
tumor which only became symptomatic after a car accident, even though the
accident did not affect the tumor development. Restatement of Torts, 2d § 461,
Wilkinson v Lee, 463 Mich 388, 617 NW2d 305 (2000). Rypstra v Western Union
Telegraph Co, 374 Mich 166, 167-168, 132 NW2d 140 (1965). Richman v City of
Berkley, 84 Mich App 258, 262, 269 NW2d 555 (1978). McNabb v Green Real
Estate Co, 62 Mich App 500, 515-519, 233 NW2d 811 (1975). Schwingschlegl v
City of Monroe, 113 Mich 683, 685-686, 72 NW 7 (1897). Rawlings v Clyde Plank
& Macadamized Road Co, 158 Mich 143, 146, 122 NW 504 (1909).
Negligent Record Keeping & Proximate Cause. The question is whether the
treatment and care rendered was negligent. The presence or absence of written
memoranda might have a bearing on the burden of proof or persuasion but has no
bearing on whether defendants are negligent. A Plaintiff’s physical condition cannot
be attributed to the alleged failure of the treating physicians to keep adequate
records. Boyd v City of Wyandotte, 402 Mich 98, 104-105, 260 NW2d 439 (1977).
Garabedian v William Beaumont Hosp. 450 Mich 985, 547 NW2d 654 (1996).
Zdrojewski v Murphy, 254 Mich App 50, 64-66; 657 NW2d 721 (2002).
C.
Aggravation of Preexisting Conditions
Generally. Where a person has a pre-existing condition aggravated by allegedly
negligent conduct, the trier of fact must separate the pre-existing condition from
any aggravation caused by the defendant. If this cannot be done, the trier of fact
is to award full damages for the condition. M Civ JI 50.11. Schwingschlegl v City
of Monroe, 113 Mich 683 (1897). Mason v Chesapeake & O R Co., 110 Mich App
76 (1981). Richman v City of Berkley, 84 Mich App 258 (1978). McNabb v Green
Real Estate Co., 62 Mich App 500, Belue v Uniroyal, Inc., 114 Mich App 589 (1982).
52
IV
Damages & Allocation of Damages
_____________________
A.
B.
C.
D.
E.
F.
G.
H.
Damages Burden of Proof
Types of Recoverable Damages
Damages Caps
Joint & Several Liability & Allocation of Fault
Insurance, Collateral Sources & Setoffs
Wrongful Death Actions
Mitigation of Damages
Interest as a Part of Damages
____________________________
A.
Damages Burden of Proof
Physical Injury Requirement.
Historically, Plaintiffs were required to have
suffered a “definite and objective physical injury” to recover “emotional distress”
damages. Michigan law now will allow emotional distress damages as long as
some objective physical consequence follows the injury. The burden of establishing
such an objective physical injury has been held to be minimal, but remains present.
Weight loss, inability to perform her household duties, nervousness, and irritability
are sufficient, but an “inability to trust medical personnel” has been held insufficient.
Daley v LaCroix, 384 Mich 4, 12-3, 179 NW2d 390 (1970). Stiles v Sundstrand Heat
Transfer, Inc, 660 FSupp 1516, 1527 (WD Mich, 1987). Dabrowski v Holland
Community Hospital, (Unpublished, August 18, 2000). Some “physical impact” must
result from any emotional distress alleged to have been the result of negligent
conduct. To recover damages, a plaintiff must prove an objective manifestation of
a physical injury. A retained needle which Plaintiff’s expert testified would cause no
physical harm does not meet the”physical impact” requirement. Towns v Sinai
Hospital, (Unpublished, December 17, 2002). Daley v LaCroix, 384 Mich 4, 12-13,
179 NW2d 390 (1970). Bernhardt v Ingham Regional Medical Center, 249 Mich App
274, 279, n 2, 641 NW2d 868 (2002). Stites v Sundstrand Heat Transfer, Inc, 660
FSupp 1516, 1526 (WD Mich 1987). M Civ JI 50.02 and comment. McClain v Univ
of Michigan Bd of Regents, 256 Mich App 492, 498; 665 NW2d 484 (2003).
Damages & Uncertainty as to Amount. A party asserting a claim has the burden
of proving damages with reasonable certainty. Hofmann v Auto Club Ins Ass’n, 211
Mich App 55, 108; 535 NW2d 529 (1995). S C Gray, Inc v Ford Motor Co, 92 Mich
App 789, 801; 286 NW2d 34 (1979). Uncertainty as to the amount of damages does
not preclude an award, but uncertainty as to the existence of damages does. Bruno
v Detroit Institute of Technology, 51 Mich App 593 (1974). Plaintiff must prove
damages with reasonable certainty. Damages are not speculative merely because
they cannot be determined with mathematical precision. Godwin v Ace Iron & Metal
Co, 376 Mich 360, 368; 137 NW2d 151 (1965). The certainty requirement is relaxed
where damages are established but the amount remains an open question. Bonelli
53
v Volkswagen of America, Inc, 166 Mich App 483, 511; 421 NW2d 213 (1988).
Wendt v Auto-Owners Ins Co, 156 Mich App 19, 26; 401 NW2d 375 (1986). Where
the fact of damages has been established, if a reasonable basis for computing them
exists, the damages may be allowed even though the result is approximate.
McCullagh v Goodyear Tire & Rubber Co, 342 Mich 244, 255; 69 NW2d 731 (1955).
Bonelli v Volkswagen of America, Inc, 166 Mich App 483, 511; 421 NW2d 213
(1988). Purcell v Keegan, 359 Mich 571, 576; 103 NW2d 494 (1960). Ensink v
Mecosta Co Gen Hosp, 262 Mich App 518, 524; 687 NW2d 143 (2004). Body
Rustproofing, Inc v Michigan Bell Tel Co, 149 Mich App 385, 390; 385 NW2d 797
(1986). Allison v Chandler, 11 Mich 542, 554 (1863).
Damages that are Remote, Contingent, or Speculative. The general rule is that
a tort-feasor is liable for all injuries resulting directly from a wrongful act, whether
foreseeable or not, provided such damages are a legal and natural consequence
of the act and according to common experience can be reasonably anticipated.
Remote, contingent, or speculative damages may not be recovered. Sutter v Biggs,
377 Mich 80, 86-87; 139 NW2d 684 (1966). Van Keulen & Winchester Lumber Co
v Manistee & Northwestern Railroad Co, 222 Mich 682; 193 NW 289 (1923). Fisk
v Powell, 349 Mich 604, 613; 84 NW2d 736 (1957). Hofmann v Auto Club Ins Ass’n,
211 Mich App 55, 108; 535 NW2d 529 (1995). Theisen v Knake, 236 Mich App 249,
258; 599 NW2d 777 (1999). Law Offices of Lawrence J Stockler, PC v Rose, 174
Mich App 14, 33; 436 NW2d 70 (1989). Nearness in the order of events and
closeness in the relation of cause and effect must be evident and predominate over
other causes. Woodyard v Barnett, 335 Mich 352, 358; 56 NW2d 214 (1953).
Questions of what damages may be reasonably anticipated is left to the fact finder.
Wendt v Auto-Owners Ins Co, 156 Mich App 19, 26; 401 NW2d 375 (1986).
Damages Need Not Be Awarded. There is no legal requirement that a jury’s
finding of liability necessitates an award of damages. Joerger v Gordon Food
Service, Inc, 224 Mich App 167, 173; 568 NW2d 365 (1997). Awards for personal
injury, pain and suffering in particular, rest within the fact finders’ sound discretion.
Meek v Dep’t of Transportation, 240 Mich App 105, 122; 610 NW2d 250 (2000).
Assessing credibility and weighing testimony is the prerogative of the trier of fact.
Kelly v Builders Square, Inc, 465 Mich 29, 39-40; 632 NW2d 912 (2001).
B.
Types of Recoverable Damages
Lost Opportunity to Survive or Achieve a Better Result. Michigan has
historically recognized a right to recover damages that have not occurred, and may
never occur, but which represent a “lost opportunity” to survive. Falcon v Memorial
Hospital, 436 Mich 443; 462 NW2d 44 (1990). MCL 600.2912a(2) later codified the
doctrine in medical malpractice claims, providing that a plaintiff “cannot recover for
loss of an opportunity to survive or an opportunity to achieve a better result unless
the opportunity was greater than 50%.” MCL 600.2912a(2) sets a statutory “more
likely than not” standard for proving causation, and requires that the difference in
the loss of an opportunity to survive or achieve a better result be more than fifty
percent. It is Plaintiff’s burden to show that the loss was greater than 50%. Under
the statute, a plaintiff must show that the difference in the loss of an opportunity to
54
survive or achieve a better result caused by the alleged negligence exceeded 50
percent. Fulton v William Beaumont Hosp, 253 Mich App 70, 83; 655 NW2d 569
(2002). A living plaintiff may not recover for loss of an opportunity to survive as the
statute only allows recovery for a present injury, not a potential one. Klein v Kik,
264 Mich App 682; 692 NW2d 854 (2005). The gravamen of plaintiff’s complaint
determines whether a cause of action is for traditional damages or for a lost
opportunity. A case is not a “loss of an opportunity” case where direct harm has
been caused by the breach of the standard of care. In Stone v Williamson, 482 Mich
144, 187, 193; 753 NW2d 106 (2008) (Markman J., concurring) three Justices
called the statute’s language incomprehensible and unenforceable as written. A
fragmented Michigan Supreme Court split on the constitutionality of the statute, but
a plurality held that Fulton remained as precedent. Whether MCL 600.2912a(2)
applies depends on the nature of the claims brought. If the plaintiff only brought a
traditional medical malpractice claim, MCL 600.2912a(2) will not apply and the
plaintiff will be left with the traditional burden of proof. Ykimoff v Foote Mem Hosp,
285 Mich App 80, 87-88; 776 NW2d 114 (2009). Taylor v Kent Radiology, PC, 286
Mich App 490; 780 NW2d 900 (2009). The chance of survival at death is irrelevant.
It is the difference in the chance of survival at the time of the alleged malpractice
that controls. The failure to timely and properly diagnose and treat resulting in a leg
amputation presented a traditional malpractice case and not a loss of an opportunity
to attain a better result. Velez v Tuma, 283 Mich App 396; 770 NW2d 89 (2009).
Compton v Pass, 485 Mich 920, 773 NW2d 664 (2009). Shivers v Schmiege, 285
Mich App 636; 776 NW2d 669 (2009).
Living Plaintiffs Cannot Recover for Lost Chance of Survival. A living plaintiff
may not recover for loss of an opportunity to survive on the basis of a decrease in
the chances of long-term survival. MCL 600.2912a(2) “expressly limits recovery to
injuries that have already been suffered and more probably than not were caused
by the defendant’s malpractice.” A living plaintiff may, however, recover for other
damages such as: 1) the more invasive medical treatments caused by the delay, 2)
the emotional trauma attributable to a worsened physical condition, and 3) the pain
and suffering attributable to the unnecessarily worsened physical condition.
Wickens v Oakwood Healthcare System, 242 Mich App 385, 392, 619 NW2d 7
(2000), rev’d in part 465 Mich 53 (2001). Edry v Adelman, (Unpublished, December
23, 2008). Edry v Adelman, D.O. 486 Mich 634; 786 NW2d 567 (2010).
Economic Damages. Economic losses are “objectively verifiable pecuniary
damages such as medical expenses, rehabilitation services, custodial care, loss of
wages, loss of future earnings, burial costs, loss of use of property, costs of repair
or replacement of property, costs of obtaining substitute domestic services, loss of
employment, or other objectively verifiable monetary losses.” This includes the costs
incurred as replacement services. Taylor v Kent Radiology, PC, 286 Mich App 490;
780 NW2d 900 (2009). Economic damages include lost wages, medical expenses,
replacement services, attendant care expenses, and other economic “out of pocket”
or “special” damages. Such damages are recoverable if incurred, even if not paid,
at the time of trial. Wilson Leasing Co. v Seaway Pharmacal, 53 Mich 359 (1974).
A defendant may introduce evidence of plaintiff’s income tax liability in order to
show that future earnings would not be as much as plaintiff claims. Woodruff v USS
Great Lakes Fleet, 210 Mich App 255 (1995).
55
Loss of Earning Capacity. Loss of future earning capacity is the future economic
damage representing what plaintiff was capable of earning based upon evidence
of training, education and interest, as opposed to what plaintiff would have earned,
but for the injury. The damages must be reasonably certain to occur and may not
be purely speculative. Prince v Lott, 369 Mich 606, 610; 120 NW2d 780 (1963).
Hedonic Damages. In personal injury actions, damages under M Civ JI 50.02 may
include damages for denial of social pleasure and enjoyment or “hedonic” damages.
Beath v Rapid R Co, 119 Mich 512; 78 NW 537 (1899). Berger v Weber, 411 Mich
1, 35; 303 NW2d 424 (1981). Pierce v New York C R Co, 409 F2d 1392 (CA 6,
1969). Gowdy v United States, 271 F Supp 733 (WD Mich, 1967), rev’d 412 F2d
525 (CA 6, 1969), cert den 396 US 960; 90 S Ct 437; 24 L Ed 2d 425 (1969).
However, expert testimony as to “hedonic” damages is not authorized in Michigan.
Kurncz v Honda North America, Inc, 166 FRD 386 (WD Mich, 1996). Hedonic
damages are not recoverable in a wrongful death action under MCL 600.2922(6).
Estate of Welch v Noack (Unpublished, June 21, 1996).
Noneconomic Damages. Non-economic damages include pain and suffering,
mental anguish, embarrassment, loss of society and companionship and other
injuries not quantifiable in a specific amount. Michigan law permits recovery for
purely mental damages where a defendant negligently inflicts an immediate physical
injury. Emotional distress recovery differs from mental anguish recovery, and nonpecuniary personal damages beyond emotional distress are available including
physical pain and suffering; mental anguish; fright and shock; denial of social
pleasure and enjoyment; embarrassment, humiliation, and mortification. Daley v
LaCroix, 384 Mich 4, 11-12; 179 NW2d 390 (1970). McClain v Univ of Michigan Bd
of Regents, 256 Mich App 492, 498; 665 NW2d 484 (2003).
Wrongful Death Damages. MCL 600.2922 specifies the damages allowed in a
wrongful death case. Those include: reasonable medical, hospital, funeral, and
burial expenses for which the estate is liable; reasonable compensation for the pain
and suffering, while conscious, undergone by the deceased during the period
intervening between the time of the injury and death; and damages for the loss of
financial support and the loss of the society and companionship of the deceased.
MCL 600.2922(6) does not preclude loss of service damages. Loss of service is not
merely a component of the loss of society and companionship or loss of consortium.
A loss of service claim is not subject to the damages cap of MCL 600.1483. Thorn
v Mercy Mem. Hosp. Corp., 281 Mich App 644; 761 NW2d 414 (2008). Damages
recoverable include emotional distress, mental anguish, and grief and sorrow.
Further, other damages would be available to a plaintiff who could prove them such
as damages for physical pain and suffering, fright, shock, denial of social pleasure
and enjoyment, embarrassment, humiliation, or other appropriate damages.
Johnson v Pastoriza, __ Mich App __; --- NW2d --- (October 12, 2010).
Exemplary & Punitive Damages. Michigan does not allow “punitive” damages,
but does allow “exemplary” damages where a defendant’s conduct is malicious or
so wilful and wanton as to demonstrate a reckless disregard of the plaintiff’s rights
or safety. Exemplary damages fall within the larger category of actual damages,
56
and essentially duplicate emotional distress damages top which a Plaintiff is already
entitled. Where a statute expressly provides for allowance of exemplary damages,
they may be awarded separately. Ray v City of Detroit, Dep’t of Street Railways,
67 Mich App 702, 704, 242 NW2d 494 (1976). In medical malpractice law, there is
no specific statute allowing exemplary damages. Eide v Kelsey-Hayes Co., 431
Mich 26, 38, 52-55 (1988). Bailey v Graves, 411 Mich 510 (1981). Birkenshaw v
Detroit, 110 Mich App 500 (1981). A plaintiff may not recover exemplary damages
for alleged concealment of malpractice as they duplicate an award of ordinary
damages for mental distress and anguish. Veselenak v Smith, 414 Mich 567, 327
NW2d 261 (1982). Hayes-Albion Corp. v Kuberski, 421 Mich 170, 187 (1984).
Phinney v Perlmutter, 222 Mich App 513, 532 (1997).
Damages & Assertion of Privileges. Under MCR 2.314(B)(2), relating to
discovery of medical information, a party who asserts a privilege and prevents
discovery of medical information relating to his or her mental or physical condition
may not thereafter, unless the court rules otherwise, present or introduce any
physical, documentary, or testimonial evidence relating to the party’s medical history
or mental or physical condition. MCR 2.314 that limits the scope of discovery
normally permitted by MCR 2.302(B) by requiring that the physical or mental
condition of a party actually be “in controversy” before medical information
concerning that condition is subject to discovery. LeGendre v Monroe County 234
Mich App 708, 600 NW2d 78 (1999). Pleadings alone may be sufficient to place a
mental or physical condition “in controversy” such as when a plaintiff in a negligence
action alleges mental or physical injury. Schlagenhauf v Holder, 379 US 104, 85 SCt
234, 13 LEd 2d 152 (1964).
C.
Damages Caps
Caps on Noneconomic Damages Generally. Non-economic damages caps apply
to all medical malpractice claims accruing after April 1, 1994. MCL 600.1483. The
trier of fact must separate economic (wage loss, medical expenses, etc.) from noneconomic (pain & suffering, disfigurement, mental anguish, etc.) damages. In
medical malpractice cases, non-economic damages exceeding the cap are not
allowed. There are two caps, depending upon the nature of the injury. The caps are
constitutional. Zdrojewski v Murphy, 254 Mich App 50, 64-66; 657 NW2d 721
(2002). Jenkins v Patel, 471 Mich 158, 164-165; 684 NW2d 346 (2004). Wiley v
Henry Ford Cottage Hosp, 257 Mich App 488; 668 NW2d 402 (2003). Retroactive
application of the caps would violate the constitutional right to a jury trial, due
process of law, and equal protection. Tobin v Providence Hospital, 244 Mich App
626 (February 16, 2001). The cap applied by the judge is the one in effect at the
time of the judgment. Wessels v Garden Way, Inc., 263 Mich App 642, 689 NW2d
526 (2004). Egeler v Wylie, (Unpublished, March 19, 2009).
Current Damage Caps. The caps, originally $280,000.00 and $500,000.00, are
to be adjusted annually using the consumer price index (“CPI”). MCL 600.1483.
The current 2010 damages caps are $408,200.00 and $729,000.00.
http://www.michigan.gov/documents/nonecolimit101_3658_7.pdf.
57
Lower Damages Cap. The lower cap applies unless there is an exception. The
total verdict is reduced for comparative negligence before applying the cap.
Shinholster v Annapolis Hospital, 255 Mich App 339, 660 NW2d 361 (2003).
Higher Damages Cap. The higher cap, provided for in MCL 600.1483(1)(a), (b),
or (c), applies only in the following circumstances:
1.
2.
3.
The plaintiff is hemiplegic, paraplegic, or quadriplegic resulting in a total
permanent functional loss of 1 or more limbs caused by injury to the brain
or spinal cord, MCL 600.1483(1)(a);
The plaintiff has permanently impaired cognitive capacity rendering him or
her incapable of making independent, responsible life decisions and
permanently incapable of independently performing the activities of normal,
daily living. MCL 600.1483(1)(b); or
There has been permanent loss of or damage to a reproductive organ
resulting in the inability to procreate. MCL 600.1483(1)(c).
Erectile dysfunction is not an impairment sufficient to meet the statutory requirement
of an “inability to procreate” for purposes of applying the higher damages cap and
does not entail a “permanent loss of or damage to a reproductive organ.” Ykimoff
v Foote Mem Hosp, 285 Mich App 80; 776 NW2d 114 (2009).
Damages Caps & Death Cases. Generally, the lower cap applies in wrongful
death claims. Jenkins v Patel, 471 Mich 158; 684 NW2d 346 (2004). Death itself
is not a qualifying injury. The higher cap may apply in a wrongful death case, but
only if the deceased suffered an exception under MCL 600.1483(1)(a), (b), or (c)
prior to death. A person who died after being comatose from medical care qualified
for the higher cap where they lost functional use of one or more limbs. Shinholster
v Annapolis Hosp, 471 Mich 540; 685 NW2d 275 (2004). The time for determining
whether an injured person meets the higher cap criteria of MCL 600.1483(1) is any
time after the allegedly negligent injury occurs. The duration of time that a Plaintiff
qualifies for the higher cap is not determinative. To establish the upper cap in a
death case, a plaintiff must prove permanently impaired cognitive capacity
independent of the death. The lower cap applied where there was insufficient proof
that Plaintiff’s wife had sustained a “permanently impaired cognitive capacity” for at
least an hour before death. Johnson v Henry Ford Hospital, (Unpublished, March
22, 2005). A temporary cognitive impairment before death is insufficient to establish
entitlement to the higher cap. Young v Nandi, 276 Mich App 67; 740 NW2d 508
(2007). Where the decedent never regained consciousness, was on a ventilator,
and had irreversible brain damage for nine days before death, the high cap applied.
Egeler v Wylie, (Unpublished, March 19, 2009).
Jury Not Informed of Caps. The jury is not to be informed of the caps. The Court
applies the applicable cap before entering the final judgment.
D.
Joint & Several Liability & Allocation of Fault
Allocation of Fault Among Parties. If there is fault by more than one party, and
the Plaintiff is comparatively negligent, the trier of fact shall include in the verdict the
58
total damages and the percentage of fault of all the parties, including the plaintiff.
In determining a percentage of fault, the nature of the conduct and the extent of the
causal connection between the conduct and the damages shall be considered. The
allocation is limited to fault for the injury for which damages are sought. Where a
plaintiff did not sue for an original injury, only an aggravation, the plaintiff could only
be allocated liability for fault causing aggravation of the preexisting injury. Taylor v
Kent Radiology, PC, __ Mich App __; --- NW2d --- (December 22, 2009).
Comparative Negligence. If Plaintiff is also negligent, a judgment is entered
based upon the total damages awarded (reduced by prior settlement amounts, and
collateral sources) in accordance with the percentage of fault. The total verdict is
reduced for comparative negligence before applying any cap. Shinholster v
Annapolis Hosp, 471 Mich 540; 685 NW2d 275 (2004). Shinholster v Annapolis
Hospital, 255 Mich App 339, 660 NW2d 361 (2003). Where there is comparative
negligence, upon a motion made within six months after a final judgment, the court
shall determine whether all or part of a party’s share of damages is uncollectible,
and shall reallocate any uncollectible amount among the other parties according to
their respective percentages of fault. A party is not required to pay a percentage of
any uncollectible amount that exceeds that party’s percentage of fault. The party
whose liability is reallocated continues to be subject to contribution and to any
continuing liability to the plaintiff on the judgment.
Pretreatment Comparative Negligence. MCL 600.6304(6)(b). MCL 600.6304(1)
allows the trier of fact to consider plaintiff’s pre-treatment negligence to off set a
defendant’s fault where reasonable minds could differ as to whether such
negligence was “a proximate cause” of plaintiff’s injury and damages. A failure to
regularly take medication preceding a fatal stroke stated a claim of comparative
negligence. Shinholster v Annapolis Hosp, 471 Mich 540; 685 NW2d 275 (2004).
Plaintiffs Who are Not Negligent. A medical malpractice plaintiff who is not
comparatively negligent is entitled to a joint and several judgment against all
defendants at fault. In such cases, the percentage allocation of fault determines the
responsibilities of the defendants between themselves, but any defendant is
potentially liable for the entire judgment. In all other cases, joint liability is abolished
and jurors allocate a percentage of damages to each defendant, or non-party
identified by notice, found to be at fault. MCL 600.2925b. MCL 600.6304(6). Joint
and several liability under MCL 600.6304(6)(a)) extends to damages caused by a
named non-party at fault. Bell v Ren-Pharm, Inc, 269 Mich App 464, 466; 713
NW2d 285 (2006).
Allocation of Damages Among Nonparties at Fault. Except for most medical
malpractice actions and a few other exceptions, Michigan abolished “joint and
several” liability in 1995, replacing it with “fair share liability” for a defendant’s
percentage of fault in causing the injury. Now, the trier of fact must consider
separately the fault of all parties and properly identified non-parties at fault, and
allocate a percentage of damages to each one found to be at fault. MCL 600.2956.
MCL 600.2957. MCL 600.6304. MCR 2.112(K). A duty must first be proved before
the issue of fault can be considered. Allocating damages to non-parties is improper
59
unless there is a legal duty on the part of the non-party. Romain v Frankenmuth
Mut. Ins. Co., 483 Mich 18, 21-22, 762 NW2d 911 (2009). Jones v Enertel, Inc, 254
Mich App 432, 437; 656 NW2d 870 (2002). Non-Party fault does not apply except
as to a tortfeasor’s conduct that is the factual and proximate cause of the initial
injury. Any negligence after the original injury does not trigger the need to assess
fault under comparative fault statutes because such negligence is not a part of the
causal chain for the original injury. Such subsequent negligence is a separate tort
and a new causal chain with its own damages. Plumley v Klein, 388 Mich 1, 8; 199
NW2d 169 (1972). Slager v Kid’s Kourt, L.L.C., __ Mich App__; --- NW2d --(September 30, 2010).
Time for Filing Notice of Nonparty Fault. Under MCR 2.112(K)(3)(c) a notice
of non-party fault must be filed within 91 days after the first responsive pleading.
The parties may not agree to waive the time restriction provided for under the rule.
The allocation of fault provisions apply to “an action based on tort or another legal
theory seeking damages for personal injury, property damage, or wrongful death.”
MCL 600.2957(1). MCL 600.6304(1). MCR 2.112(K) specifically covers “actions for
personal injury, property damage and wrongful death,” but the rule has been held
to apply to liability in other tort-based actions such as negligent procurement of
insurance coverage. Holton v A+ Ins Ass’n, Inc, 255 Mich App 318, 323-324; 661
NW2d 248 (2003). The rule does not apply to actions not based upon a tort or
property damage. Durda v Chembar Dev Corp, 95 Mich App 706; 291 NW2d 179
(1980). Dwight v Cutler, 3 Mich 566 (1855). Hogsett v Ellis, 17 Mich 351 (1868).
MCL 600.2957(1). MCL 600.6304(1). MCR 2.112(K). All types of “fault” are
considered in determining a percentage of fault and liability for damages. Plaintiff’s
own comparative negligence will reduce the recovery, even where the defendant
committed an intentional tort or wilful and wanton negligence. Lamp v Reynolds,
249 Mich App 591, 645 NW2d 311 (2002). Defendants may identify subsequent
treating physicians as third-party defendants or non-parties at fault under MCR
2.204(A) and MCR 2.112(K)(3), but if a defendant pleads the concurrent or
intervening liability of other physicians, expert testimony by medical a person in the
same specialty as the identified physician is required to establish a violation of the
standard of care. Stone v Williamson, 482 Mich 144 (2008).
Late Notice of Nonparty Fault. The trier of fact may not assess the fault of a
nonparty, unless the defendant has given timely notice of the nonparty fault claim.
MCR 2.112(K)(2). Rinke v Potrzebowski, 254 Mich App 411, 415; 657 NW2d 169
(2002). A notice of non-party fault filed more than 91 days after the first responsive
pleading must be made by motion, showing that the notice could not, with
reasonable diligence, have been filed earlier provided that the late filing of the notice
does not result in unfair prejudice to the opposing party. MCR 2.112(K)(3)(c) states
that “the court shall allow a later filing” if the facts were not and could not have been
known with reasonable diligence and the late filing does not result in unfair prejudice
to the opposing party. Bint v Doe, 274 Mich App 232; 732 NW2d 156 (2007). The
need to file a notice is not apparent until claims against another defendant are
dismissed. Salter v Patton, 261 Mich App 559, 567; 682 NW2d 537 (2004). There
is no unfair prejudice where a plaintiff is aware of the potential liability of the
non-party. The ability of a defendant to litigate a non-party’s responsibility by way
60
of a separate cause of action for contribution or indemnification is not a basis to
deny the motion. Wilson v Henry (Unpublished, February 9, 2006). A late notice of
non-party fault may be stricken where defendants failed to show “reasonable
diligence” under MCR 2.112(K)(3)(c) in investigating whether a radiologist was at
fault in contributing to plaintiff’s injuries. Snyder v Advantage Health Physicians, 281
Mich App 493, 500, 760 NW2d 834 (2008).
Right to Contribution & Indemnification. The abolition of joint and several
liability, and the adoption of the non-party fault system, did not abolish a tortfeasor’s
right to contribution, although it often makes it unnecessary. Gerling Konzern
Allgemeine Versicherungs AG v Lawson, 472 Mich 44, 50-53; 693 NW2d 149
(2005). The availability of a separate action for contribution or indemnification
between a party and a nonparty is not a basis for denying a motion for leave to file
a notice of nonparty fault. Wilson v Henry (Unpublished, February 9, 2006).
Nonparty Fault Does Not Preclude Causation Defense. The allocation of fault
to non-parties rule found in MCR 2.112(K) and MCL 600.2957 and MCL 600.6304
do not deprive defendants of their right to contest proximate cause. MCL 2.112(K)
protects plaintiffs against an allocation of fault without notice, but it does not take
away a defense that the harm was caused by another. “It is entirely proper for a
defendant in a negligence case to present evidence and argue that liability for an
accident lies elsewhere, even on a nonparty,” and no notice need be filed for such
a defense to be litigated at trial. Veltman v Detroit Edison Co, 261 Mich App 685,
690; 683 NW2d 707 (2004).
Allocation of Fault Is Required in Medical Malpractice Actions. Notwithstanding
the retention of joint and several liability in most medical malpractice actions where
a plaintiff is not at fault, MCL 600.6304(6)(1) & (2) still explicitly require an allocation
of fault. The fact finder shall allocate liability among parties and non-parties before
joint and several liability is imposed on each defendant. Once joint and several
liability is determined to apply, joint and several liability prohibits the limitation of
damages to any percentage of fault, and set-offs are allowed for any settlement
amounts paid to the Plaintiff. In malpractice actions where a Plaintiff is
comparatively negligent, joint liability is abolished and damages are paid according
to an allocation of fault, with modification where a defendant may be insolvent.
Salter v Patton, 261 Mich App 559; 682 NW2d 537 (2004).
Statutory Penalties for “Bad” Parties. MCL 600.2959 bars any non-economic
(pain and suffering, etc.) recovery for plaintiffs who are more than 50% at fault. MCL
600.2955a provides that a claim is barred entirely where a plaintiff reaches 50% of
comparative fault from an impairment “diminished from the norm” due to alcohol or
a controlled substance. “Impaired ability to function due to the influence of
intoxicating liquor or a controlled substance” means that the individual’s senses are
impaired to the point that the ability to react is diminished from what it would be had
the individual not consumed liquor or a controlled substance. Plaintiff need not be
convicted or impaired to the statutory limit (.07% blood alcohol). MCL 600.2955a(1).
Where decedent’s own negligence in becoming intoxicated was the proximate
cause of his death, and reasonable minds could not differ that the decedent was 50
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percent or more the cause of the acute alcohol withdrawal causing his death, the
defendant met the requirements of MCL 600.2955a and was entitled to judgment.
An individual is presumed to have an impaired ability to function due to the influence
of intoxicating liquor or a controlled substance if, under a standard prescribed by
MCL 257.625a a presumption would arise that the individual’s ability to operate a
vehicle was impaired. Harbour v Correctional Medical Services, Inc, 266 Mich App
452, 465; 702 NW2d 671 (2005). Where the plaintiff was intoxicated at the time of
an accident that resulted in a leg fracture and then alleged subsequent negligent
treatment of the fracture causing a further injury, plaintiff was not 50 percent or
more the cause of the injury from the malpractice due to his intoxication under MCL
600.2955a. “The injury” arising from the medical treatment was not the fracture
itself, but the pain and the clawing of his toes from untreated compartment
syndrome. There were two distinct injuries caused by separate occurrences. Under
the plain language of MCL 600.2955a(1), plaintiff’s impairment from alcohol must
be the one proximate cause of the injury. Although the usual standard for proximate
causation in a negligence action is that the negligence be a proximate cause,
causation as used in MCL 600.2955a(1) requires the impairment to be “the” one
cause of the accident or event that resulted in the injury. Beebe v Richard J.
Hartman, Jr., D.O., __ Mich App __; --- NW2d --- (November 9, 2010).
E.
Insurance, Collateral Sources & Setoffs
Collateral Sources Generally. A “collateral source” is a benefit paid by another
for an element of damage normally recoverable in the action. Collateral sources
include insurance reimbursements, employee benefits, worker’s compensation
benefits, and social security and other enumerated government entitlements. Life
insurance or benefits paid under a statutory or asserted contractual right to a lien
are not included. MCL 600.6303(4) refers to “social security benefits” and to
Medicare payments, but not Medicaid, so Medicaid is not a collateral source.
Shinholster v Annapolis Hosp, 255 Mich App 339, 360; 660 NW2d 361 (2003), rev’d
on other grnds, 471 Mich 540; 685 NW2d 275 (2004).
Right to Setoff for Collateral Sources. Under MCL 600.6303, a set-off is allowed
for items payable by a collateral source, less any premiums paid for the benefits.
A collateral source setoff is allowed for medical care, rehabilitation services, loss of
earnings, loss of earning capacity, or other economic loss paid or payable by a
collateral source and evidence of same shall be admissible after the verdict and
before judgment. The court shall then reduce the portion of the judgment
representing damages paid or payable by a collateral source. Under MCL
600.6303(4) “collateral source” includes insurance policies, health and dental care
contracts, HMO agreements, employee benefits, social security benefits, worker’s
compensation benefits, and medicare benefits. Collateral source does not include
liens from the above sources which have been asserted. MCL 600.6303(3) requires
the plaintiff inform potential lien holders of a verdict within ten days, and that a lien
be exercised within twenty days of such notice. Zdrojewski v Murphy, 254 Mich App
50, 64-66; 657 NW2d 721 (2002).
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Social Security Benefits Setoff. Social Security benefits are identified as
collateral source payments under MCL 600.6303(4). Such benefits reduce a verdict
under MCL 600.6303(1). Haberkorn v Chrysler Corp, 210 Mich App 354, 375; 533
NW2d 373 (1995). However, Social Security benefits will not reduce a judgment
unless there is a previously existing statutory obligation to pay the benefits. MCL
600.6303(5). Cost of living adjustments for future Social Security benefits, even
though likely, are not certain to occur. Therefore, future economic damages should
not be reduced. Jimkoski v Shupe, 282 Mich App 1; 763 NW2d 1 (2008).
Right to Setoff Should Be Pled as Affirmative Defense. Although not specifically
listed as an affirmative defense in the court rules, a claim of a right to a set-off is
comparable to an affirmative defense and pleading it as such is prudent. Defenses
beyond rebutting a prima facie case should be pleaded, or they may be considered
waived. Travelers Ins Co v Detroit Edison Co, 237 Mich App 485, 494-495; 603
NW2d 317 (1999). Hofmann v Auto Club Ins Ass’n, 211 Mich App 55, 90; 535
NW2d 529 (1995). Cole v Ladbroke Racing Michigan, Inc, 241 Mich App 1, 9; 614
NW2d 169 (2000). Stanke v State Farm Mut Automobile Ins Co, 200 Mich App 307,
312; 503 NW2d 758 (1993). Although a defendant failed to plead a setoff as an
affirmative defenses, the issue was preserved by being raised in a counterclaim.
Minority Earth Movers, Inc v Walter Toebe Const Co, 251 Mich App 87, 96 (2002).
Medicaid Providers Cannot Increase Fee by Lien on Judgment. Service
providers who accept Medicaid must accept that payment as payment in full. This
remains true when a third party is later found liable for the medical expenses. 42
USC 1396a(a)(25)(C). Courts considering whether a Medicaid provider may recover
the difference between their customary fee and the Medicaid reimbursement have
denied the claims, holding that it amounts to “balance billing” prohibited under
federal law. Spectrum Health Continuing Care Group v Anna Marie Bowling
Irrecoverable Trust, 410 F3d 304, 319 (6th Cir. 2005), Evanston Hospital v Hauck,
1 F3d 540, 542 (7th Cir. 1993), cert. den., 510 US 1091 (1994).
Right to Setoff for Settlements Paid by Other Parties. Michigan’s new “fair
share” system of several liability requires that most defendants only pay an
allocated percentage of fault as determined by the Jury. The system allows
allocation of a percentage of damages to non-parties whom a defendant can prove
to also be “at fault.” In such cases, setoffs for other settlements are no longer
allowed since, theoretically, no ones pays more than their “fair share.” Abrigo v
Schultz, (Unpublished, January 28, 2000). However, in medical malpractice claims,
joint liability still remains in most cases. Therefore, the common law rule allowing
a set-off for other moneys paid continues to assure that there is “but one recovery
for an injury” except in cases where a Plaintiff is comparatively negligent. MCL
600.6304(1) & (2) explicitly requires allocation of fault between all parties and all
properly identified non-parties in all personal injury actions. No allocation can be
made to non-parties without a timely “notice of non-party fault.” Usually, this
allocation of fault will not be important in medical malpractice cases, and a
defendant will remain entitled to a full set-off for settlement amounts paid by others
regardless of percentages of fault. A medical malpractice defendant should
preserve the right to allocate fault to non-parties in a proper case by timely filing a
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notice of non-party fault, and bringing a motion for leave to file a late notice of nonparty fault when a co-defendant settles, so that allocation of fault can be made if
necessary where a Plaintiff is comparatively negligent. MCL 600.6304(6)(b).
Markley v Oak Health Care Investors of Coldwater, Inc., 255 Mich App 245; 660
NW2d 344 (2003). Salter v Patton, 261 Mich App 559; 682 NW2d 537 (2004).
Generally, only one recovery for a single injury is allowed. Great Northern
Packaging, Inc v Gen Tire & Rubber Co, 154 Mich App 777, 781; 399 NW2d 408
(1986). A joint tortfeasor’s payment reduces the amount another defendant has to
pay to satisfy a judgment. The distinction between judgments and satisfaction of
judgments is discussed in Grand Blanc Cement Products, Inc v Ins Co of North
America, 225 Mich App 138, 150-151; 571 NW2d 221 (1997).
Medicaid Liens. State law requires the injured person/plaintiff and/or his or her
attorney to notify the state whenever a case is commenced which will include
damages for costs expended by the state on behalf of the plaintiff. Under MCL
400.106(b)(ii) a notice must be sent to the Michigan Department of Community
Health, Revenue and Reimbursement Division, P.O. Box 30435, Lansing, MI 48909,
using form: www.michigan.gov/documents/documents/DCH-1183(E)917537.doc.
For more information contact: Michigan Department of Community Health, (517)
335-8340, [email protected]. A medically indigent individual receiving family
independence program benefits or an individual receiving supplemental security
income under title XVI, or his or her legal counsel, shall notify the contracted health
plan and the Michigan state department when filing an action in which the state may
have a right to recover expenses paid. If a legal action where there is a right to
recover expenses paid is settled without notice, the state department or the
medicaid contracted health plan may file an action against the individual or their
legal counsel, or both, to recover expenses paid as well as costs and attorney fees.
MCL 400.106(5) provides that the state has first priority against the proceeds of any
net recovery, but if Plaintiff would recover less than the lien paid, the two shall share
equally in the net recovery.
Medicare Liens. Under 42 USC 1395y(b), reimbursement is required for medicare
expenses recovered in a civil action.
F.
Wrongful Death Actions
Wrongful Death Actions Generally. The Wrongful Death Act is the exclusive legal
remedy following death and any recovery. A cause of action belongs to the estate,
not the personal representative. Shenkman v Bragman, 261 Mich App 412,
415-416; 682 NW2d 516 (2004).
Proper Party Plaintiff in Wrongful Death Action. An action filed following the
death of the injured person must be brought by an appointed personal
representative of the estate through an attorney. Late appointment of a personal
representative will not relate back to, or validate, the original Complaint, and it is
properly dismissed. MCL 600.2922(2). Smith v Henry Ford Hospital, 219 Mich App
555, 558 (1996). A wrongful death action not commenced with a personal
representative of the decedent’s estate acting under letters of authority is a nullity.
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Myers v Marshall Med. Assocs., P.C., (Unpublished, December 20, 2005). The
Personal Representative does not represent him or herself in a wrongful death
action brought under MCL 600.2922(2) and cannot proceed In Pro Per as that is
engaging in the unauthorized practice of law. Shenkman v Bragman, 261 Mich App
412, 416; 682 NW2d 516 (2004). A notice of intent under MCL 600.2912b(1) may
be mailed by a personal representative of a estate before their formal appointment.
Halton v Fawcett, 259 Mich App 699, 704; 675 NW2d 880 (2003).
Persons Entitled to Wrongful Death Damages. The following surviving persons
are entitled to damages: decedent’s spouse, children, descendants, parents,
grandparents, brothers and sisters or, if none survive, then persons to whom the
estate would pass under the laws of intestate succession, the children of the
deceased’s spouse, and devisees under the will, including beneficiaries of a
testamentary trust or a living trust if there is a devise thereto in the will. MCL
600.2922. MCL 600.2922. Cannon v Transamerica Freight, 37 Mich App 313, 194
NW2d 736 (1971).
Damages Allowed for Wrongful Death. Damages may be awarded for medical,
funeral and burial expenses, conscious pain and suffering before death, loss of
financial support, and loss of society and companionship. Future wages are not
compensable except as lost support. MCL 600.2922(6)(d). M Civ JI 45.02. Jenkins
v Raleigh Trucking, 187 Mich App 424, 468 NW2d 64 (1991), lv den 440 Mich 862
(1992). The Wrongful Death Act does not authorize pain and suffering of the family
as an element of damages. Wycko v Gnodtke, 361 Mich 331, 340; 105 NW2d 118
(1960). Porter v Northeast Guidance Center, Inc., (Unpublished, October 5, 2001).
MCL 600.2922, provides for the distribution of settlement proceeds to members of
the estate in an amount the court deems fair and equitable. The court is to assess
the type of relationship the decedent had with each claimant objectively as indicated
by the time and activity shared and the overall characteristics of the relationship.
McTaggart v Lindsey, 202 Mich App 612, 615-616; 509 NW2d 881 (1993). In re
Claim of Carr, 189 Mich App 234, 239-240; 471 NW2d 637 (1991). Loss of service
damages are recoverable as an element of economic damage not subject to the
damages cap of MCL 600.1483. Thorn v Mercy Memorial Hosp., 483 Mich 1122,
767 NW2d 431 (2009), MCL 600.2922(6). Exemplary damages are not recoverable
in wrongful death actions. Fellows v Superior Products Co, 201 Mich App 155; 506
NW2d 534 (1993). Endykiewicz v State Hwy Comm, 414 Mich 377, 387-388; 324
NW2d 755 (1982). Although a will may be relevant, the trial court is not bound by
it. In re Thornton, 192 Mich App 709, 715; 481 NW2d 828 (1992).
Comparative Negligence of Parent in Action on Behalf of Child. A parent’s
comparative negligence is relevant under the wrongful death statute where recovery
is sought for damages to the parent for the death of the child. However,
comparative negligence of a parent may not be imputed to reduce the child’s
damages prior to death. Byrne v Schneider’s Iron & Metal, Inc., 190 Mich App 176,
475 NW2d 854 (1991). Feldman v Detroit U R Co, 162 Mich 486, 127 NW 687
(1910). McCann v Detroit, 234 Mich 268, 270, 207 NW 923 (1926). Nielsen v Henry
H Stevens, Inc, 359 Mich 130, 101 NW2d 284 (1960). It is impermissible for a
defendant to raise a parent’s negligence in an action against a third party for injuries
sustained by their child. Wymer v Holmes, 144 Mich App 192, 196-199; 375 NW2d
384 (1985). Lapasinskas v Quick, 17 Mich App 733, 739; 170 NW2d 318 (1969).
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Life Expectancy Tables. The statutory mortality tables contained in MCL 500.834
were repealed in 1994. Prior to that, those tables controlled general life
expectancies in civil actions where there was no evidence life expectancy was
diminished. The comments to M Civ JI 53.02 note that government tables are now
offered in conjunction with expert testimony to establish life expectancy. General
mortality tables are available through the Michigan Department of Community
Health at http://michigan.gov/mdch/0,1607,7-132-2944_4669_4686---,00.html, and
also the National Center for Health Statistics (a part of the CDC) at
http://www.cdc.gov/nchs/products/life_tables.htm.
G.
Mitigation of Damages
Mitigation of Damages Generally. The duty to mitigate includes obtaining medical
treatment which does not involve danger to life or extraordinary suffering and which
has a high probability of success. Klanseck v Anderson Sales and Service, Inc., 136
Mich App 75 (1984).
Wrongful Death Damages and Remarriage. Remarriage is not relevant or
admissible to show mitigated damages in a wrongful death case. Bunda v Hardwick,
376 Mich 640 (1965). Hollis v Abraham, 67 Mich App 426 (1976).
H.
Interest as a Part of Damages
Interest Generally. Interest on money judgments is calculated at 6 month
intervals from the date the complaint is filed at a rate of 1% plus the average
interest rate paid at auctions of 5-year U.S. treasury notes during the six (6) months
preceding July 1 and January 1, and is compounded annually. However, interest is
not allowed on future damages prior to the date the judgment is entered. MCL
600.6013. The interest rate on money judgments for the period beginning 07/01/05
has been certified by the Michigan Department of Treasury at 4.845%.
Pre & Post Judgment Interest.
Post Judgment interest is statutory and
mandatory. Prejudgment interest is discretionary. Militzer v Kal-Die Casting, 41
Mich App 492 (1972). M Civ JI 53.04. Interest on a verdict is calculated from date
of filing the complaint to the date of judgment at 12% if based upon a writing, or at
semi-annual rates tied to the 5 year average of T bills +1%. MCL 600.6013. Yaldo
v North Pointe Insurance Company, 457 Mich 341, 578 NW2d 274 (1998). For
current rates, see http://www.michigan.gov/documents/nonecolimit101_3658_7.pdf.
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V.
Defenses
___________________
A.
B.
C.
D.
E.
F.
Affirmative and Special Defenses
Statute of Limitations
Tolling the Statute of Limitations
Immunity
Comparative Negligence
Other Defenses
________________________
A.
Affirmative & Special Defenses
Pleading & Waiver of Affirmative Defenses. MCR 2.111(F)(3) requires
affirmative defenses to be stated under a separate and distinct heading. Affirmative
defenses are any defense that does not directly deny the case, but which otherwise
defeats it on other legal grounds. Affirmative defenses must be raised in a party's
first responsive pleading or by motion filed not later than this responsive pleading,
or the defense is waived. To prevent the adverse party from being surprised at trial,
a party must state the facts constituting an affirmative defense. MCR 2.111(F)(3)(a).
Horvath v Delida, 213 Mich App 620, 630; 540 NW2d 760 (1995). Lancaster v
Wease, (Unpublished, September 28, 2010). An affirmative defense is adequate if
it is sufficient to permit the opposite party to take a responsive position. Hanon v
Barber, 99 Mich App 851, 856; 298 NW2d 866 (1980).
Affirmative Defenses Which Must Be Plead. A defense not asserted is waived
except for lack of jurisdiction over the subject matter and failure to state a claim.
Affirmative defenses include comparative negligence, an agreement to arbitrate,
assumption of risk, payment, release, satisfaction, discharge, license, fraud, duress,
estoppel, statute of frauds, statute of limitations, immunity granted by law, lack of
consideration, that an instrument or transaction is void, voidable, non-delivery, a
defense seeking to avoid the legal effect of or defeat the claim, a ground of defense
that if not raised would likely to take the adverse party by surprise. Governmental
immunity cannot be waived. Mack v City of Detroit, 467 Mich 186, 197-205; 649
NW2d 47 (2002). Pohutski v City of Allen Park, 465 Mich 675, 681; 641 NW2d 219
(2002). Attorney General ex rel Dept of Environmental Quality v Bulk Petroleum
Corp, 276 Mich App 654, 664; 741 NW2d 857 (2007). MCR 2.111(F)(2) and (F)(3).
Immunity under the Emergency Medical Service Act (EMSA) is waived if not pled
as an affirmative defense. Holmes v Bauer (Unpublished, May 15, 2003). A
defendants failure to set forth the factual bases for an affirmative defense of the
statute of limitations did not waive the defense under MCR 2.111(F)(2). Simon, Sr.
v Kim Widrig, C.R.N.A., (Unpublished July 15, 2008).
Affirmative Defenses May Be Freely Amended. Affirmative defenses may be
freely amended by leave of the court when justice requires, and relate back to the
original filing date. MCR 2.111(F)(3). MCR 2.118. Campbell v St. John Hospital, 434
Mich 608 (1990). Stanke v State Farm Insurance, 200 Mich App 307, 312 (1993).
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B.
Statutes of Limitations
Statute of Limitations Generally. The statute of limitations in effect at the time
a cause of action accrues controls. The policies behind statutes of limitation are to
encourage the rapid recovery of damages, to penalize plaintiffs who have not been
diligent in pursuing rights, and to protect against stale claims which may be difficult
to defend against. Lemmerman v Fealk, 449 Mich 56 (1995). Stephens v Dixon,
449 Mich 531, 534, 536 NW2d 755 (1995). Moll v Abbott Laboratories, 444 Mich 1,
14, 506 NW2d 816 (1993). Exceptions to statutes of limitations are strictly
construed. Michigan Millers Mutual Ins Co v West Detroit Building Co, Inc, 196
Mich App 367, 374, 494 NW2d 1 (1992). Poffenbarger v Kaplan, 224 Mich App 1,
568 NW2d 131 (1997). Poffenbarger v Kaplan, 457 Mich 865, 581 NW2d 733
(1998). Dismissal of a claim on the statute of limitations is “an adjudication on the
merits” under MCR 2.504(B)(3) barring all future claims that were, or could have
been, raised in the action. Al-Shimmari v Detroit Medical Ctr, 477 Mich 280, 284,
295; 731 NW2d 29 (2007).
Savings Statutes. A saving statute allows a claimant to file suit even after the
period of limitations has expired. Vanslembrouck v Halperin, 277 Mich App 558,
573; 747 NW2d 311 (2008). By contrast, a statute of limitations is a statutory
provision requiring a person who has a cause of action to bring suit within a
specified time. Savings statutes are not tolled by statutory provisions that toll
statutes of limitation and statutes of repose. Waltz v Wyse, 469 Mich 642, 649-650;
677 NW2d 813 (2004).
Accrual of the Statute of Limitations. Medical malpractice claims “accrue” (or
arise) at the time of each act or omission which is alleged to constitute negligence.
MCL 600.5838(1). MCL 600.5838a. Poffenbarger v Kaplan, 224 Mich App 1, 568
NW2d 131 (1997). Poffenbarger v Kaplan, 457 Mich 865, 581 NW2d 733 (1998).
MCL 600.5838a(1) requires the trial court to examine the basis of a malpractice
action to determine the accrual date. The failure to follow up on an x-ray report does
not establish a separate act of malpractice as the “continuing wrong” doctrine does
not exist in Michigan. A claim of failure to maintain a system to ensure follow up
would have accrued at the time of the original act, and not when the follow up
contacts allegedly should have been conducted. McCarty v Midwest Health Ctr.,
P.C. (Unpublished, March 31, 2005). Each distinct negligent act or omission gives
rise to a new accrual date, but the ongoing adherence to an original misdiagnosis
or treatment regimen does not. There is no continuing wrong or continuing
treatment rule for extending the limitations period. There is no “continuing violations”
doctrine in medical malpractice actions. McKiney v Clayman, 237 Mich App 198,
204-205 n 4, 207; 602 NW2d 612 (1999). Garg v Macomb Co Community Mental
Health Services, 472 Mich 263, 266; 696 NW2d 646 (2005).
Contractually Varying the Statute of Limitations. A party may contractually
shorten the statute of limitations applicable to a claim. An unambiguous contractual
provision providing for a shortened period of limitations is to be enforced as written
unless the provision would violate law or public policy. A judicial assessment of
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“reasonableness” is an invalid basis upon which to refuse to enforce contractual
provisions. Only recognized traditional contract defenses may be used to avoid the
enforcement of a contract provision. Rory v Continental Ins Co, 473 Mich 457, 470;
703 NW2d 23 (2005). Clark v Daimler Chrysler Corp, 268 Mich App 138, 144-145;
706 NW2d 471 (2005).
Pleading the Statute of Limitations. The statute of limitations must be pled as an
affirmative defense in the first responsive pleading. MCR 2.111(F)(3)(a). Palenkas
v Beaumont Hospital, 432 Mich 527; 443 NW2d 354 (1989). Where a complaint was
filed without an affidavit of merit, defendants were not required to raise any
affirmative defenses because the action was never properly commenced. Auslander
v Chernick, 480 Mich 910, 739 NW2d 620 (2007). Scarsella v Pollak, 461 Mich 547,
549-550; 607 NW2d 711 (2000).
Statute of Limitations for Adults. The statute of limitations is 2 years from the
date of the act or omission which is the basis for the claim or six months from the
date when plaintiff discovers or should have discovered the existence of the claim,
whichever is later, but in any case not more than six years from the date of the
alleged malpractice. MCL 600.5805(6) and 600.5838a(2). Sills v Oakland General
Hospital, 220 Mich App 303, 310 (1996). Buszek v Harper Hospital, 116 Mich App
650, 654 (1982).
Statute of Limitations for Minors. If a medical malpractice claim accrues for a
person under eight years of age, the action must generally be commenced on or
before the person’s tenth birthday. If a claim accrues to a person eight years of age
or older, the action must be brought within two years of the alleged malpractice.
MCL 600.5851(7). If a person is under 13 and the claim involves an injury to the
person’s reproductive system, the claim must generally be brought within two years,
or before age fifteen, whichever is later. MCL 600.5851(8). Hollins v Sinai-Grace
Hospital, (Unpublished, March 16, 2006). These statutes are subject to the “late
discovery” rule of MCL 600.5838a, allowing filing within 6 months of when a claim
is discovered, but never more than 6 years after the alleged malpractice. Prior to
1994, if a minor was 13 or under when the claim accrued, a claim generally had to
be brought before the minor’s 15th birthday. If the minor was over 13, the regular
2 year statute of limitations applied. Prior to 1986, the minor generally had one year
after attaining 18 years of age to bring an action. A deceased minor does not
continue to age for purposes of extending the statute of limitations under MCL
600.5851(7). Vance v Henry Ford Health Sys, 272 Mich App 426; 726 NW2d 78
(2006). The extension of time for minors is a statute of limitation. Vanslembrouck
v Halperin, 277 Mich App 558; 747 NW2d 311 (2008).
Old Claims & the Statute of Limitations. The statute of limitations in effect when
a claim arises applies. Chase v Sabin, 445 Mich 190, 192 n 2, 516 NW2d 60 (1994).
Casey v Henry Ford Health Systems, 235 Mich App 449, 597 NW2d 840 (1999).
The statute of limitations prior to 1986 provided for a two year statute of limitations,
but a claim did not “accrue” until the last date of treatment. Karr v Williams, 126
Mich App 222, 226, 337 NW2d 51 (1983). Eberhard v Harper Hospital, 179 Mich
App 24, 30 (1989). Before 1986, minors were also permitted to file a claim within
one year after turning 18.
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Which Statute of Limitations Applies. The limitations period applicable to a
claim may not be changed by pleading a different theory. If the alleged negligence
involved the provision of professional services and occurred “within the course of
a professional relationship,” the gravamen of the action is generally for medical
malpractice. Becker v Meyer Rexall Drug Co., 141 Mich App 481, 485, 367 NW2d
424 (1985). Bronson v Sisters of Mercy, 175 Mich App 647 (1989).
Accrual Date Disputes. Generally, a factual dispute regarding when the statute
of limitations accrued is resolved by the jury, but where there is no material dispute,
the Court is to decide and summary judgment may be granted. Kermizian v
Sumcad, 188 Mich App 690, 470 NW2d 500 (1991). Coddington v Robertson, 160
Mich App 406, 407 NW2d 666 (1987). Rice v Zimmer Mfg. Co., 180 Mich App 681,
447 NW2d 771 (1989). Levinson v Sklar, 181 Mich App 693, 449 NW2d 682 (1989).
Weisberg v Lee, 161 Mich App 443, 411 NW2d 728 (1987). But see: Blana v
Spezia, 155 Mich App 348, 399 NW2d 511 (1986), holding that the Court is to
decide factual disputes as to the limitations period.
Wrongful Pregnancy Claim Accrual. A cause of action for wrongful pregnancy
accrues when plaintiff learns of the conception. Stewart v Bebko, 576 FSupp 182
(DDC 1983). Discovery of a malpractice claim involving tubal ligation occurred after
delivery. Coleman v Dowd, 185 Mich App 662, 462 NW2d 809 (1990).
Addition of New Claims & the Statute of Limitations. Under the doctrine of
“relation back,” amendments to pleadings, new claims of negligence, and defenses
may be added even though the statute of limitations has run. Such pleadings will
relate back to the date the original Complaint was filed. This doctrine generally
applies to avoid statute of limitations issues, and has been held inapplicable to
attempts to add new parties or avoid new statutory laws. MCR 2.118(D). Doyle v
Hutzel Hospital, 241 Mich App 206, 615 NW2d 759 (2000). Smith v Henry Ford
Hospital, 219 Mich App 555, 557, 557 NW2d 154 (1996). Weymers v Khera, 454
Mich 639, 654-60 (1997). Ben P. Fyke & Sons v Gunter, 390 Mich 649, 656 (1973).
MCR 2.118(D) provides that “an amendment that adds a claim or a defense relates
back to the date of the original pleading if the claim or defense asserted in the
amended pleading arose out of the conduct, transaction, or occurrence set forth,
or attempted to be set forth, in the original pleading.” The doctrine of relation-back
does not apply to the addition of new parties. Miller v Chapman Contracting, 477
Mich 102, 106; 730 NW2d 462 (2007).
Late Naming of a Defendant & the Statute of Limitations. The discovery rule
does not apply when a claim is known, but the identity of a particular defendant is
not. A Plaintiff has a duty to timely determine the potential defendants in a timely
manner. Weisburg v Lee, 161 Mich App 443, 448, 411 NW2d 728 (1987). Lefever
v American Red Cross, 108 Mich App 69, 74 (1981). Taulbee v Mosley, 127 Mich
App 45, 48 (1983). Smith v Sinai Hospital, 152 Mich App 716, 726 (1986). Furby v
United Auto Workers, et al, 458 Mich 854, (1998). However, in a pharmaceutical
case, a Federal Court held that a claim did not accrue until plaintiff was able to
identity the manufacturer. Yustick v Eli Lilly & Co., 573 FSupp 1558 (ED Mich 1983).
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“John Doe” Complaints & the Statute of Limitations. In Fazzalare v Desa
Indus, Inc, 135 Mich App 1, 6; 351 NW2d 886, 888 (1984), the court said, “While
we are persuaded of no reason to prohibit the filing of “John Doe” complaints, it is
our opinion that the running of the applicable statutory limitation period is not
interrupted by the filing of such a complaint.” In Bell v Kostanko, (Unpublished, July
6, 2004), the appellate court held that aAn amendment to a “John Doe” complaint
that seeks merely to add a specifically named defendant does not relate back to the
original filing of the complaint for the purpose of tolling the statute of limitations. Hurt
v. Michael's Food Center, Inc, 220 Mich.App 169, 179; 559 NW2d 660
(1996);Thomas v. Process Equip Corp, 154 Mich.App 78, 84-85; 397 NW2d 224
(1986); citing Meda v. City of Howell, 110 Mich.App 179, 185-186; 312 NW2d 202
(1981); Fazzalare v. Desa Industries, Inc, 135 Mich.App 1, 6; 351 NW2d 886
(1984); Browder v. Int'l Fidelity Ins Co, 98 Mich.App 358, 361; 296 NW2d 60 (1980).
Late Discovery Rule. Under MCL 600.5838a(2), a claim may be timely if plaintiff
shows that it was filed within six months of when plaintiff discovered, or should have
discovered, the claim. The six-month discovery rule is a “period of limitation” and
not merely a savings provision. MCL 600.5838a(2) provides for two distinct periods
of limitation: two years after the accrual of the cause of action, and six months after
the existence of the claim was or should have been discovered by the medical
malpractice claimant. Miller v Mercy Memorial Hosp, 466 Mich 196; 644 NW2d 730
(2002). Haskell v Colfer (Unpublished, September 20, 2005). A claim accrues when
Plaintiff discovers, or through the exercise of reasonable diligence should have
discovered: 1) an injury, and 2) the causal connection between the injury and the
breach. The burden is on plaintiff to prove the claim could not reasonably have been
discovered earlier. Knowledge of a possible claim starts the statute of limitations
running. The test for whether a plaintiff should have discovered a claim is objective
and not based on subjectively belief. Moll v Abbott Laboratories, 444 Mich 1, 14,
506 NW2d 816 (1993). Vesetula v Whitmyer, 187 Mich App 675, 682, lv den 439
857 (1991). Discovery of any injury will start the statute of limitations running.
Plaintiff has the burden of showing that discovery of the existence of the claim was
not reasonable until within six months before filing the complaint. Mental or
emotional damages alone will start the statute running. Shields v Shell, 237 Mich
App 682, 691, 604 NW2d 719 (1999). MCL 600.5858a(2). Berrios v Miles, Inc, 226
Mich App 470, 471-472, 477-478, 574 NW2d 677 (1997). Turner v Mercy Hospitals
& Health Services of Detroit, 210 Mich App 345, 353, 533 NW2d 365 (1995).
Stephens v Dixon, 449 Mich 531, 538, 536 NW2d 755 (1995). Moll v Abbott
Laboratories, 444 Mich 1, 16, 506 NW2d 816 (1993). Gebhardt v O’Rourke, 444
Mich 535, 545, 510 NW2d 900 (1994). Poffenbarger v Kaplan, 224 Mich App 1, 568
NW2d 131 (1997). Poffenbarger v Kaplan, 457 Mich 865, 581 NW2d 733 (1998).
Solowy v Oakwood Hospital, 454 Mich 214, 219-30 (1997). Smith v Beuker
(Unpublished, December 15, 2003). Whether a plaintiff should have discovered a
claim is tested objectively by application of a reasonable person standard. Levinson
v Trotsky, 199 Mich App 110, 112, 500 NW2d 762 (1993). Where Plaintiff learned
that her mammogram found cancer, the fact that she was not aware that it was
misinterpreted was not necessary to discover a claim. Rick v Thumb Medical
Imaging, P.C. (Unpublished, October 26, 2004). Summary disposition was proper
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where the claim was not filed within six-months of discovery where Plaintiff was a
nurse who knew the implications of a cancer diagnosis. Prins v Ewald,
(Unpublished, April 12, 2005). Bonucchi v Michigan State Univ. Bd. of
Trs.(Unpublished, March 28, 2006). Plaintiff is charged with the discovery of facts
that with the exercise of reasonable diligence she ought to have discovered. The
Meyer & Anna Prentis Family Foundation, Inc v Barbara Ann Karmanos Cancer
Institute, 266 Mich App 39, 45-46 n 2; 698 NW2d 900 (2005). The discovery rule
does not act to hold a matter in abeyance indefinitely while a plaintiff seeks
professional assistance to determine the existence of a claim.A plaintiff must act
diligently to discover a possible cause of action and “cannot simply sit back and wait
for others” to inform her of its existence. Grimm v Ford Motor Co, 157 Mich App
633, 639; 403 NW2d 482 (1986).
Continuing Wrongs Do Not Extend the Statute of Limitations. In determining
when a medical malpractice claim accrues, Michigan does not recognize the
concept of a “continuing wrong” extending the statute of limitations to the end of
treatments. McKiney v Clayman, 237 Mich App 198, 208; 602 NW2d 612 (1999).
Mitchell v Policherla, P.C., (Unpublished, November 15, 2005).
Six Year Statute of Repose.
MCL 600.5838a(2), provides that except as
otherwise provided for certain minors, a claim shall not be commenced later than
6 years after the date of the act or omission that is the basis for the claim.” The
statute was held applicable only to the “late discovery” rule in Casey v Henry Ford
Health Systems, 235 Mich App 449, 597 NW2d 840 (1999). The 6 year statute of
repose does not apply where: 1) discovery of the claim was prevented by fraud; 2)
a foreign object was wrongfully left in the body; or 3) the injury involves the
reproductive system. MCL 600.5838a. The statute of repose is constitutional. Sills
v Oakland General Hospital, 220 Mich App 303, 312 (1996).
Laches. Laches, an “equitable statute of limitations,” may apply to bar an action
when the delay of one party has resulted in prejudice to the other party. Yankee
Springs Twp v Fox, 264 Mich App 604, 611, 612; 692 NW2d 728 (2004).
C.
Tolling the Statute of Limitations
Tolling Generally. Tolling provisions are intended to protect the right to bring an
action and prevent a defendant from defeating a claim by avoiding jurisdiction.
Statutes of limitations are intended to promote plaintiffs’ diligence, prevent litigation
of stale claims, and to establish reasonable, limited times for bringing actions. As
a general rule, exceptions to statutes of limitations are strictly construed. Lausman
v Benton Tp, 169 Mich App 625, 629; 426 NW2d 729 (1988).
Tolling the Statute of Limitations by Mailing a Notice of Intent. If during the
pre-suit notice period, the statute of limitations or repose would otherwise run, the
statute of limitations stops running for 182 days from the date of mailing the pre-suit
notice of intent even if the shorter 154 day notice period applies. MCL 600.2912b.
Omelenchuk v City of Warren, 461 Mich 567 (2000). Vanslembrouck v Halperin, 277
Mich App 558; 747 NW2d 311 (2008). A notice of intent must be mailed to the last
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known residential or business address to toll the statute of limitations. Fournier v
Mercy Community Health Care System-Port Huron, 469 Mich 921 (2003). Roberts
v Mecosta Co Hosp (After Remand), 470 Mich 679, 681-682, 686; 684 NW2d 711
(2004). Decosta v Gossage, D.O., (Unpublished, September 2, 2008).
Notices of Intent Do Not Toll the Wrongful Death “Savings Provision.” MCL
600.5852 allows a personal representative of an estate to file a claim within two
years of issuance of any original or subsequent letters of authority as long as the
claim is filed within three years of the time the applicable statute of limitations would
otherwise have run. Letters of authority are “issued” on the date signed by the
probate judge. Lentini v Urbancic, 262 Mich App 552; 686 NW2d 510 (2004)(Lentini
I), vacated on other grounds in Lentini v Urbancic, 472 Mich 885 (2005) (Lentini II).
Miller v Mercy Memorial Hospital, 466 Mich 196; 644 NW2d 730 (2002). Lipman v
William Beaumont Hosp., 262 Mich App 552 (05/06/03). Because the 182 day presuit notice tolling under MCL 600.5856(c) only tolls statutes of limitations or repose,
the wrongful death savings provision provided for in MCL 600.5852 is not tolled by
MCL 600.5856(c). Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004). Miller v
Mercy Memorial Hospital, 466 Mich 196; 644 NW2d 730 (2002).
Additional Notices of Intent & the Statute of Limitations. After the initial notice
has tolled the statute of limitations once, the tacking (addition) of successive
182-day tolling periods is not allowed, regardless of how many additional notices are
subsequently mailed for the claim, or how many additional health professionals or
facilities are notified. MCL 600.2912b(6). An additional Notice of Intent will toll the
statute of limitations, and does not violate the prohibition against tacking in MCL
600.2912b(6) if other notices were sent soon enough that the notice period did not
run into the statute of limitations. MCL 600.2912b(6) only bars multiple tolling
periods. Mayberry v General Orthopedics, PC, 474 Mich 1, 7-8; 704 NW2d 69
(2005). Sfreddo v University of Mich. Regents (Unpublished, January 31, 2006).
Hoffman v Boonsiri, __ Mich App __; --- NW2d --- (September 14, 2010).
Arbitration Proceedings Do Not Toll the Statute of Limitations. The statute of
limitations is not tolled by initiating an arbitration proceeding. Varga v Heritage
Hospital, 139 Mich App 358 (1984). Mair v Consumers Power Co., 419 Mich 74,
348 NW2d 256 (1984). Michigan courts have long held that the tolling statute deals
with prior “lawsuits” or “court proceedings.” Buscaino v Rhodes, 385 Mich 474, 482,
189 NW2d 202 (1971). Barczak v Rockwell International Corp., 68 Mich App 759,
762, 244 NW2d 24 (1976).
Adding a New Defendant & Tolling the Statute of Limitations. An order
allowing amendment to add new defendant does not toll the statute of limitations
until the entry of the order. Hall v Fortino, 158 Mich App 663, 405 NW2d 106 (1986).
Hadley v Ramah, 134 Mich App 380, 384-385, 351 NW2d 305 (1984). Stephenson
v Union Guardian Trust Co, 289 Mich 237, 241-242, 286 NW 226 (1939).
Defective Affidavits of Merit & the Statute of Limitations. Filing a complaint with
a defective Affidavit of Merit will toll the statute of limitations until successfully
challenged. Kirkaldy v Rim, 477 Mich 1063; 728 NW2d 862 (2007). MCL
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600.2912d(2) allows a 28 day extension for “good cause.” A valid affidavit must be
properly notarized. Holmes v Michigan Capital Medical Center, 242 Mich App 703,
620 NW2d 319 (October 10, 2000). Where a Plaintiff files an affidavit from an
unqualified expert, files a nonconforming affidavit, or has not filed an affidavit at all,
the case is subject to dismissal without prejudice. Decker v Flood, 248 Mich App
75, 638 NW2d 163 (2001). Kirkaldy v Rim, 251 Mich App 570, 651 NW2d 80
(2002), overruled on other grounds in Kirkaldy v Rim, 477 Mich 1063; 728 NW2d
862 (2007). Scarsella v Pollack 461 Mich 547,607 NW2d 711 (2000). Nippa v
Botsford General Hospital, 251 Mich App 664, 651 NW2d 103 (2002). The failure
to correctly indicate matching specialties in an Affidavit of Merit did not make the
affidavit nonconforming as long as the specialties matched in fact. Kurz v Detroit
Osteopathic Hosp. Corp., (Unpublished, September 26, 2006).
Tolling the Statute of Limitations by Filing a Complaint. MCL 600.5856 tolls the
statute of limitations or repose if: a) at the time the complaint is filed, if a copy of
the summons and complaint are served on the defendant within the time set forth
in the supreme court rules; (b) at the time jurisdiction over the defendant is
otherwise acquired; (c) at the time notice is given in compliance with the applicable
notice period under section 2912b, if during that period a claim would be barred by
the statute of limitations or repose; but in this case, the statute is tolled not longer
than the number of days equal to the number of days remaining in the applicable
notice period after the date notice is given. The tolling statute is to be liberally
construed to allow litigation of apparently valid claims where the defendant has
actually received timely notice of the action. Sanderfer v Mt Clemens General Hosp,
105 Mich App 458, 461, 306 NW2d 322 (1981). Merely mailing a notice of intent
is not notice that a party will actually be sued. Loewengruber v University of
Michigan Health Systems, (Unpublished, July 26, 2002).
Personal Representatives & Wrongful Death Savings Provision. MCL 600.5852
is a “savings provision” which provides that if a person dies before the period of
limitations has run, or less than 30 days after the period of limitations has run, an
action may be commenced within two years after a personal representative of the
estate is appointed, but not more than three years after the period of limitations
would otherwise have run. The savings period starts upon the appointment of any
personal representative of the estate. Lindsey v Harper Hospital, 455 Mich 56,
67;564 NW2d 861 (1997). A deceased minor does not continue to age for purposes
of extending the statute of limitations under MCL 600.5851(7). Vance v Henry Ford
Health Sys, 272 Mich App 426; 726 NW2d 78 (2006). A successor personal
representative may file a complaint within two years after appointment as long as
it is within three years of when the period of limitations would otherwise have run.
Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d
139 (2003). Estate of Dale v Robinson, 279 Mich App 676, 760 NW2d 557 (2008).
Mitchell-Crenshaw v Joe (Unpublished, February 7, 2006). It is immaterial why the
successor personal representative was appointed. Braverman v Garden City
Hospital, 480 Mich 1159; 746 NW2d 612 (2008). A successor cannot revive an
untimely complaint filed by a prior personal representative. The relation back
doctrine and MCL 700.3701 do not apply to successor personal representatives ot
make a filing timely. McMiddleton v Bolling, 267 Mich App 667, 673; 705 NW2d 720
74
(2005). Amon v Botsford Gen. Hosp. (Unpublished, December 27, 2005). Jordan
v Mercy Mem’l Hosp. (Unpublished, April 25, 2006). A successor personal
representative may not institute a new action where the original personal
representative had the benefit of the full two-year savings period, but neglected to
file suit timely due to an error in determining when the complaint must be filed.
McLean v McElhaney, 269 Mich App 196; 711 NW2d 775 (2005). A successor
personal representative appointed after the lawsuit was filed could not save the
statute of limitations. King v Briggs, D.O. (Unpublished, July 12, 2005). Where an
unauthorized personal representative had no authority to file the original lawsuit, a
subsequent properly authorized successor could timely file suit within the time set
forth in MCL 600.5852. Jackson v Henry Ford Health System, (Unpublished,
January 17, 2006). Where the probate court initially appointed plaintiff as a personal
representative with restrictions, and only later granted general letters of authority,
an action commenced within two years of issuing the general letters was timely.
Mays v Michigan Heart, P.C. (Unpublished, April 25, 2006). A successor personal
representative may file a medical malpractice complaint relying on a notice intent
filed by an earlier personal representative. Braverman v Garden City Hosp, 480
Mich 1159; 746 NW2d 612 (2008) (“Braverman II”). Reappointment of the same
personal representative renews the two-year wrongful death saving period under
MCL 600.5852 even if the reappointment was not necessary. Carmichael v Henry
Ford Hosp., 276 Mich App 622, 742 NW2d 387 (2007). A successor personal
representative must be substituted into an action brought by a prior representative.
MCL 700.3613.
Late Naming of Nonparties At Fault & the Statute of Limitations. A defendant
may file a notice identifying a non-party “at fault” to which a jury may later allocate
damages. The party is to be identified as specifically as possible, but a full name
and address is not required. Under MCR 2.112(K)(3)(c), the Michigan court rules
require that such a notice be filed within 91 days after a defendant files a first
responsive pleading. The parties may not waive the requirements of MCR 2.112(K).
Staff v Marder, 242 Mich App 521, 619 NW2d 57 (2000). Any notice filed thereafter
must be made by a motion showing that the “fault” of such non-parties could not,
with reasonable diligence, have been known earlier. Although MCL 600.2957
provides that when a defendant files a notice of nonparty at fault, the statute of
limitations will not continue to run as to the non-parties for 91 days, allowing plaintiff
to add them, the notice of intent statute, MCL 600.2912b, supercedes the tolling
under MCL 600.2957. Driver v Naini, 287 Mich App 339, 788 NW2d 848 (2010).
Tolling Statute of Limitations Due to Insanity or Imprisonment. MCL
600.5851(1) provides that if the person first entitled to make an entry or bring an
action under this act is . . . insane at the time the claim accrues, the person or those
claiming under the person shall have 1 year after the disability is removed through
death or otherwise, to make the entry or bring the action although the period of
limitations has run. Insanity is “a condition of mental derangement such as to
prevent the sufferer from comprehending rights he or she is otherwise bound to
know and is not dependent on whether or not the person has been judicially
declared to be insane.” MCL 600.5851(2). The insanity must exist at the time the
claim accrues. If the disability comes into existence after the claim has accrued, a
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court shall not recognize the disability for the purpose of modifying the period of
limitations. MCL 600.5851(3). To avoid summary disposition, plaintiff must submit
documentary evidence that creates a question of fact with respect to whether the
plaintiff was deranged at the time the claim accrued. Asher v Exxon Co, USA, 200
Mich App 635, 641; 504 NW2d 728 (1993).Subsequent disabilities do not re-toll the
statute. MCL 600.5851(4). A declaration of incompetence alone does not satisfy the
definition of insane in MCL 600.5851(2). Casey v Henry Ford Health System, 235
Mich App 449, 597 NW2d 840 (1999). Whether a person is “insane” for purposes
of MCL 600.5851 is generally a jury question unless: 1) plaintiff did not suffer from
insanity at the time the claim accrued or 2) plaintiff had recovered from any such
disability more than one year before filing a complaint. Meiers-Post v Schafer, 170
Mich App 174, 179; 427 NW2d 606 (1988). Makarow v Volkswagen of America, Inc,
157 Mich App 401, 407; 403 NW2d 563 (1987). Rittenhouse v Erhart, 126 Mich App
674, 679; 337 NW2d 626 (1983), modified on other grounds 424 Mich 166 (1985).
Hogan v Allstate Ins Co, 124 Mich App 465, 467; 335 NW2d 6 (1983). Davidson v
Baker-VanderVeen Construction Co, 35 Mich App 293; 192 NW2d 312 (1971), lv
den 386 Mich 756 (1971). Hills v Clark Equipment Co, 42 Mich App 405; 202 NW2d
530 (1972), lv den 388 Mich 801 (1972).
Insanity Tolling Does Not Apply to Medical Malpractice Claims. MCL
600.5851(1), read with MCL 600.5851(7), excludes medical malpractice claimants
from the disability grace period provided to those who are “insane” when their claim
accrues. MCL 600.5851(1) is subject to subsections (7) and (8), but neither provides
an exception for insanity. The exclusion does not violate equal protection
guarantees. Vega v Landland Hosp at Niles & St Joseph, Inc, 267 Mich App 565,
569-570; 705 NW2d 389 (2005). Hollins v Sinai-Grace Hospital, (Unpublished,
March 16, 2006). The Vega case, although deciding an issue of first impression in
holding that MCL 600.5851(1), tolling of the statute of limitations due in cases of
insanity, did not apply to medical malpractice claimants, is retroactive. Long v
Children’s Hospital of Michigan, (Unpublished, August 1, 2006).
Repressed Memory Will Not Toll the Limitations Period. Neither the “late
discovery rule” of MCL 600.5805 nor the insanity tolling provisions of MCL
600.5851(1) extend the statute of limitations for a tort action based upon “repressed
memory syndrome” even if the defendant admits the conduct.
Demeyer v
Archdiocese of Detroit, 233 Mich App 409, 593 NW2d 560 (1999). Guerra v Garratt,
222 Mich App 285, 564 NW2d 121 (1997). Lemmerman v Fealk, 449 Mich 56,
76-77, 534, NW2d 695 (1995).
Tolling for Fraudulent Concealment of a Claim. MCL 600.5855 provides that
if a person fraudulently conceals the existence of a claim, or the identity of a person
who may be liable for the claim, an action may be commenced within 2 years after
a plaintiff discovers, or should have discovered, the existence of the claim or the
identity of the person liable. “Fraudulent concealment means employment of artifice,
planned to prevent inquiry or escape investigation, and mislead or hinder
acquirement of information disclosing a right of action. The acts relied on must be
of an affirmative character and fraudulent.” DeHaan v Winter, 258 Mich 293, 296;
241 NW 923 (1932). The acts must be affirmative and fraudulent. Silence does not
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establish fraudulent concealment. An affirmative act or misrepresentation calculated
to prevent discovery is required. The plaintiff is also charged with the discovery of
facts that, with the exercise of reasonable diligence, he ought to have discovered.
Shember v Univ. of Michigan Medical Ctr., 280 Mich App 309; 760 NW2d 699
(2008). The plaintiff must plead in the complaint the acts or misrepresentations that
comprised the fraudulent concealment. Doe v Roman Catholic Archbishop of
Archdiocese of Detroit, 264 Mich App 632, 692 NW2d 398 (2004). Dunmore v
Babaoff, 149 Mich App 140, 145, 386 NW2d 154 (1985). DeHaan v Winter, 258
Mich 293, 296, 241 NW 923 (1932). If there is a known cause of action there can
be no fraudulent concealment. Doe v Roman Catholic Archbishop of the
Archdiocese of Detroit, 264 Mich App 632, 642-643; 692 NW2d 398 (2004). Hughes
v Patel (Unpublished, April 11, 2006). Lemson v General Motors Corp, 66 Mich App
94, 98, 238 NW2d 414 (1975). Dowse v Gaynor, 155 Mich 38, 43, 118 NW 615
(1908). Eschenbacher v Hier, 363 Mich 676, 680-682, 110 NW2d 731 (1961). Sills
v Oakland General Hosp, 220 Mich App 303, 310, 559 NW2d 348 (1996). Buszak
v Harper Hospital, 116 Mich App 650, 654, 323 NW2d 325 (1982). To avoid
summary disposition, a plaintiff must plead all facts constituting fraudulent
concealment. Phinney v Perlmutter, 222 Mich App 513, 562-563, 564 NW2d 532
(1997). Draws v Levin, 332 Mich 447, 452-453, 52 NW2d 180 (1952).
Estoppel from Asserting the Statute of Limitations. A defendant may be
estopped from asserting the statute of limitations if there has been 1) a false
representation or concealment of material fact, 2) expectation that other party will
rely on the misconduct, and 3) knowledge of the actual facts on the part of the
representing or concealing party. Cincinnati Ins Co v Citizens Ins Co, 454 Mich 263,
562 NW2d 648 (1997).
Equitable Tolling of the Statute of Limitations. The doctrine of equitable tolling
may be invoked in rare circumstances to prevent injustice. Equitable tolling has
been applied where the plaintiff actively pursued judicial remedies by filing a
defective pleading during the statutory period or the claimant has been induced or
tricked by the defendant’s misconduct into allowing the filing deadline to pass. 51
Am Jurisdiction 2d, Limitation of Actions, § 174, p 563. Equitable or judicial tolling
applies to extraordinary situations where it would be unfair to allow a statute of
limitations defense to prevail because of a defendant’s bad faith or other particular
and unusual inequity. 51 Am Jur 2d, Limitation of Actions, § 177. Secura Ins Co v
Auto-Owners Ins Co, 461 Mich 382, 387-388; 605 NW2d 308 (2000). Garg v
Macomb Co Community Mental Health Services, 472 Mich 263, 285 n 12; 696
NW2d 646 (2005). Devillers v Auto Club Ins Ass’n, 473 Mich 562, 586, 590-592;
702 NW2d 539 (2005). Equitable tolling was not allowed where a failure to timely
file an affidavit of merit was due to a clerical error in attaching the wrong affidavit
to the complaint. Ward v Rooney-Gandy, 474 Mich 917 (2005). Equitable tolling was
allowed for understandable confusion about whether a claim was malpractice or
ordinary negligence, rather than a negligent failure to act on legal rights. Bryant v
Oakpointe Villa Nursing Center, 471 Mich 411, 432; 684 NW2d 864 (2004).
Summary disposition was proper for an untimely affidavit of merit in spite claims that
a clerical error caused the affidavit of merit to be separated from the complaint after
it was filed where there was an absence of evidence of the existence of a timely
affidavit of merit. Arrand v Snider (Unpublished, July 14, 2005). Where, three
77
affidavits of merit were signed, but only two notarized, the court reversed dismissal
where the defendants were not prejudiced by the delayed filing of the third notarized
affidavit. Wood v Bediako, 272 Mich App 558, 564-565; 727 NW2d 654 (2006).
Appeals Do Not Toll the Statute of Limitations. There is no automatic tolling
during the pendency of appellate proceedings. Yeo v State Farm Fire & Casualty
Ins Co, 242 Mich App 483, 484; 618 NW2d 916 (2000). Devillers v Auto Club Ins
Ass’n, 473 Mich 562; 702 NW2d 539 (2005). Findling v Jeffrey Parker,
(Unpublished, September 16, 2010).
D.
Immunity
Immunity Generally. Historically the “sovereign” was immune from all lawsuits
unless an exception was granted. Since 1986, immunity has been abolished as to
most government owned hospitals and employed health care providers. A Plaintiff
must plead facts in avoidance of governmental immunity. Mack v Detroit, 467 Mich
186, 203 n 18; 649 NW2d 47 (2002). Immunity is determined by the law in effect at
the time the claim accrued. McCummings v Hurley Medical Center, 433 Mich 404,
445 NW2d 114 (1989) (overruled as to need to plead immunity as an affirmative
defense in Mack v Detroit, 467 Mich 186, 203 n 18; 649 NW2d 47 (2002). Vitale v
Reddy, 150 Mich App 492, 389 NW2d 456 (1986). Governmental immunity does not
bar claims for breach of contract regardless of whether a tort claim would also exist.
Penner v Seaway Hospital, 169 Mich App 502, 427 NW2d 584 (1988). Trotsky v
Henry Ford Hospital, 169 Mich App 286, 425 NW2d 531 (1988).
Immunity from Lawsuits Against Employer. MCL 418.131 of the Worker’s
Disability Compensation Act (“WDCA”), makes employers immune from most suits
brought by employees. The only exception is an injury caused by a deliberate act
of the employer if the employer specifically intended an injury. An employer is
deemed to have intended to injure the employee if the employer had actual
knowledge that an injury was certain to occur and willfully disregarded that
knowledge. Immunity is a question of law for the court. A plaintiff’s internship with
defendant as a social worker qualified as employment under the Worker’s Disability
Compensation Act, and immunity applied. MacArthur v Ramsey Havenwyck, Inc.
(Unpublished, October 25, 2005). A contract for hire for purposes of the WDCA may
be established where there is an exchange of services for training or college credits
toward graduation. In the case, plaintiff was required to complete an internship to
obtain her master’s degree.
Immunity Abolished for Government Owned Hospitals and Staff. There is no
immunity for medical care provided by government-owned hospitals, and their
agents and employees, except for those hospitals operated by the Michigan
Departments of Health and Corrections. MCL 691.1407(4). Powers v Peoples
Community Hospital Authority, 183 Mich App 550, 455 NW2d 371 (1990). Joplin v
U of M Regents, 184 Mich App 497, 459 NW2d 70 (1990). O’Neill v Emma L. Bixby
Hospital, 182 Mich App 252, 451 NW2d 594 (1990). Roberts v City of Pontiac, 176
Mich App 572, 440 NW2d 55 (1989). Stein v Southeastern Michigan Family
Planning Project, 432 Mich 198, 438 NW2d 76 (1989). The “medical care exception”
78
eliminating governmental immunity applies to county jails. MCL 691.1407(4). Briggs
v Oakland Co, 276 Mich App 369; 742 NW2d 136 (2007).
Immunity for Medical Care to Surrendered Infants. MCL 712.2(4) grants
immunity to hospitals, their agents and employees, in accepting or transferring a
newborn surrendered for emergency care unless gross negligence or willful or
wanton misconduct is present. “Gross negligence” is“conduct so reckless as to
demonstrate a substantial lack of concern for whether an injury results.” Xu v. Gay,
257 Mich App 263, 269; 668 NW2d 166 (2003).
Immunity for Good Samaritan Acts & Physical Examinations. Health care
professionals providing emergency care outside of an emergency room have
qualified immunity from suit under the “Good Samaritan” Act. The Act grants
immunity unless gross negligence or willful and wanton misconduct is found.
Physicians providing free physical examinations solely for competitive sports are
also immune. MCL 691.1501 - MCL 691.1502; Pemberton v Dharmani, 188 Mich
App 317, 469 NW2d 74 (1991). “Gross negligence” is“conduct so reckless as to
demonstrate a substantial lack of concern for whether an injury results.” Xu v. Gay,
257 Mich App 263, 269; 668 NW2d 166 (2003).
Immunity Under the Emergency Medical Services Act (“EMSA”). MCL
333.20901, et seq., the Emergency Medical Services Act, provides immunity from
suit for the acts or omissions of a medical first responder, emergency medical
technician, paramedic, medical director or certain others providing services outside
a hospital or in a hospital before transfer of patient care occurs, except in cases of
“gross negligence” or “willful misconduct.” MCL 333.20965; Omelenchuk v City of
Warren, 466 Mich 524, 647 NW2d 493 (2002). MCL 333.20965(1)(f) provides that
an “authoritative governmental unit,” is also similarly immune for such treatment.
“Willful misconduct” essentially requires proof that the defendant intended to harm
the plaintiff. “Gross negligence” is“conduct so reckless as to demonstrate a
substantial lack of concern for whether an injury results.” Xu v. Gay, 257 Mich App
263, 269; 668 NW2d 166 (2003). MCL 333.20965(4) states that other immunity may
also apply, such as MCL 691.1407(1) of the Governmental Tort Liability Act
(GTLA), providing immunity for certain governmental functions. Immunity under
EMSA must be plead as an affirmative defense or it is waived. Holmes v Bauer
(Unpublished, May 15, 2003). EMSA provides for uniform regulation of emergency
medical services and limits emergency personnel liability. For purposes of the
EMSA. “Gross negligence” is“conduct so reckless as to demonstrate a substantial
lack of concern for whether an injury results.” Xu v. Gay, 257 Mich App 263, 269;
668 NW2d 166 (2003). Evidence of ordinary negligence does not create a question
of fact as to gross negligence. Jennings v Southwood, 446 Mich 125; 521 NW2d
230 (1994). Costa v Community Emergency Medical Services, Inc, 263 Mich App
572, 578; 689 NW2d 712 (2004). Castle v Battle Creek Area Ambulance
(Unpublished, March 19, 2009). Plaintiff show specific facts to show reckless
conduct on the part of the defendant. The failure to follow a medical protocol is not
gross negligence. As local authorities and local hospitals administer the emergency
medical services system, the standard of care is a local standard of care. MCL
333.20918. Denboer v Lakola Medical Control Authority, 240 Mich App 498,
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500-501; 618 NW2d 8 (2000). The transportation and transfer of a patient in need
of emergency medical services where some treatment has been provided “is part
and parcel” of the “treatment” of that patient and is shielded from liability under the
EMSA. Lee v Dowagiac Volunteer Fire Department Ambulance Service, Inc.
(Unpublished, June 10, 2010)
Immunity for Reporting Child Abuse or Neglect. MCL 333.16281 provides
immunity for health care providers statutorily required to report or participate in child
abuse or neglect investigations under MCL 722.623.
Immunity for Reporting Positive HIV and Hepatitis B Results. MCL 333.5114,
requires clinical laboratories to report HIV positive test results to the Department of
Public Health. MCL 333.5131(1) provides that reports, records and data pertaining
to testing that are associated with serious communicable diseases or infections of
HIV and acquired immunodeficiency syndrome are confidential. MCL 333.5131(5)
provides, however, that confidentiality does not apply to: (a) Information pertaining
to an individual who is HIV infected or has been diagnosed as having acquired
immunodeficiency syndrome, if the information is disclosed to the department, a
local health department, or other health care provider for 1 or more of the following
purposes: (i) To protect the health of an individual. (ii) To prevent further
transmission of HIV. (iii) To diagnose and care for a patient. MCL 333.5131(6)
provides that a person who releases the results of an HIV test or other information
described in subsection (1) in compliance with subsection (5) is immune from civil
or criminal liability.
Immunity for County Medical Examiners. The MCL 691.1407(4) exception to
immunity for public hospitals does not extend to county morgues. Dampier v Grace
Hosp. Corp., et al, 233 Mich App 714, 592 NW2d 809 (1999). County medical
examiners are immune for investigations under the Medical Examiner’s statute
regardless of how poorly an investigation is conducted. Such immunity extends to
persons assisting in investigations. MCL 52.201 et seq. Maiden v Rozwood, 461
Mich 109, 597 NW2d 817 (1999). White v Beasley, 453 Mich 308; 316, 552 NW2d
1 (1996). Reno v Chung, 220 Mich App 102, 105, 559 NW2d 308 (1996). Otero v
Allan J. Warnick, DDS, 241 Mich App 143, 614 NW2d 177 (1999).
Immunity for Health Care Facility Quality Assurance Functions. Persons or
entities performing quality assurance functions for licensed health care facilities are
immune for conduct relating to those duties, and documents generated for such
functions are not subject to subpoena. There is no liability for defamation for
communications made, absent proof of malice, to peer review committees, or state
or local professional organizations. MCL 331.531, MCL 691.1401 et seq.; MCL
691.1407. Veldhuis v Allan, 164 Mich App 131; 416 NW2d 347 (1987). Joplin v
University of Michigan Regents, 173 Mich App 149; 433 NW2d 830 (1988). Gillam
v Lloyd, 172 Mich App 563; 432 NW2d 356 (1988). Hyde v University of Michigan
Regents, 426 Mich 223; 393 NW2d 847 (1988). In Feyz v Mercy Mem Hosp, 475
Mich 663; 719 NW2d 1 (2006), the Michigan Supreme Court held that an exception
to qualified immunity under medical peer review immunity statute is established
where a person supplying information or data to a peer review entity does so with
knowledge of its falsity or with reckless disregard of its truth or falsity. Michigan
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does not recognize the judicial nonintervention doctrine, which provides that courts
will not intervene in a private hospital's staffing decisions, thereby overruling the
decisions in Hoffman v. Garden City Hosp., 115 Mich App 773, 321 NW2d 810;
Sarin v. Samaritan Health Ctr., 176 Mich.App. 790, 440 N.W.2d 80, and Long v.
Chelsea Community Hosp., 219 Mich.App. 578, 557 N.W.2d 157; and the medical
peer review immunity statute does not extend to the hospital that makes the ultimate
decision on staffing credential questions.
Immunity for Drugs Approved by the FDA. FDA approval of a drug creates an
irrebuttable presumption of its safety absent fraud, misrepresentation or bribery
during the approval process. MCL 500.2946(5). The statute provides a drug
manufacturer or supplier a complete defense and was held constitutional in Garcia
v Wyeth-Ayerst Laboratories, 385 F3d 961 (6th Circ. 2004).
Immunity of Witnesses Giving Testimony. Witnesses owe their duty to the court.
A witness testifying in judicial proceedings has an absolute privilege, provided the
testimony is relevant, material, or pertinent to the issue being tried. Quasi-judicial
immunity applies even though opinions are developed outside of the courtroom.
Reno v Chung, 220 Mich App 102, 106; 559 NW2d 308 (1996). Couch v Schultz,
193 Mich App 292, 294-295; 483 NW2d 684 (1992). Maiden v Rozwood, 461 Mich
109, 134, 597 NW2d 817 (1999). Otero v Allan J. Warnick, DDS, 241 Mich App 143,
614 NW2d 177 (2000).
E.
Comparative Negligence
Comparative Negligence Generally. Comparative negligence may be pled as
an affirmative defense in cases where, for example, plaintiff failed to follow medical
instructions. Jalaba v Borovoy, 206 Mich App 17, 22-23, 520 NW2d 349 (1994).
Pietrzyk v Detroit, 123 Mich App 244, 248-249, 333 NW2d 236 (1983). The
standard for determining comparative negligence is the same as for a defendant,
except the burden is on the defendant. MCL 600.6304(2). Lamp v Reynolds, 249
Mich App 591, 599; 645 NW2d 311 (2002). Case v Consumers Power Co, 463 Mich
1, 6-7; 615 NW2d 17 (2000). In a malpractice case, proving comparative negligence
eliminates joint liability between defendants and Plaintiff’s percentage of fault
reduces the total verdict amount accordingly. An adult plaintiff has a duty to exercise
reasonable care for his or her own safety. Laier v Kitchen, 266 Mich App 482, 496;
702 NW2d 199 (2005). Rodriguez v Solar of Michigan, Inc, 191 Mich App 483, 488;
478 NW2d 914 (1991). Conduct may constitute comparative negligence where the
patient failed to follow instructions, such as quitting smoking, refused treatment, or
provided false, incomplete or misleading information regarding symptoms. Sawka
v Prokopowycz, 104 Mich App 829, 834-838, 306 NW2d 354 (1981). In wrognful
death cases, the decedent is the “plaintiff” for comparative negligence purposes.
Young v Nandi 276 Mich App 67; 740 NW2d 508, 513 (2007). A parent's
comparative negligence is relevant under the wrongful death statute where recovery
is sought for damages sustained by the parent because of the wrongful death of a
child, but such negligence will not diminish the child’s personal damages prior to
death. Byrne v Schneider’s Iron & Metal, Inc. 190 Mich App 176, 475 NW2d 854,
(1991). Feldman v Detroit U R Co, 162 Mich 486, 127 NW 687 (1910). McCann v
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Detroit, 234 Mich 268, 270, 207 NW 923 (1926). Nielsen v Henry H Stevens, Inc,
359 Mich 130, 101 NW2d 284 (1960).
Comparative Negligence Preceding Treatment. MCL 600.6304(1) also allows
a trier of fact to consider pre-treatment “lifestyle” negligence where reasonable
minds could differ as to whether such negligence was “a proximate cause” of
plaintiff’s injury and damages. A failure to regularly take medication preceding a
stroke stated a claim of comparative negligence. Shinholster v Annapolis Hospital,
471 Mich 540, 548; 685 NW2d 275 (2004). Podvin v Eickhorst, 373 Mich 175, 128
NW2d 523 (1964). Negligence in becoming intoxicated was a proximate cause of
death, and where reasonable minds could not differ that decedent was 50 percent
or more the cause of his death, defendant met the requirements of MCL 600.2955a,
prohibiting a claim and defendant was entitled to judgment. Harbour v Correctional
Medical Services, Inc, 266 Mich App 452, 465; 702 NW2d 671 (2005). A negligent
failure to follow defendant’s advice to go to an emergency room stated a claim for
comparative negligence. Yax v Knapp, (Unpublished, September 19, 2006).
F.
Other Defenses
Defense of Setoff Must be Plead as Affirmative Defense. Although not
specifically listed as an affirmative defense in the court rules, a claim of a right to
a set-off is comparable to an affirmative defense of payment or satisfaction and
pleading it as an affirmative claim or defense is prudent. Defenses that go beyond
rebutting a prima facie case should be pleaded, or they may be considered waived.
Travelers Ins Co v Detroit Edison Co, 237 Mich App 485; 603 NW2d 317 (1999).
Hofmann v Auto Club Ins Ass’n, 211 Mich App 55; 535 NW2d 529 (1995). Cole v
Ladbroke Racing Michigan, Inc, 241 Mich App 1; 614 NW2d 169 (2000). Stanke
v State Farm Mut Automobile Ins Co, 200 Mich App 307, 312; 503 NW2d 758
(1993). But, in Minority Earth Movers, Inc v Walter Toebe Const Co, 251 Mich App
87, 96 (2002) the Court held that although defendant failed to plead setoff as
affirmative defenses, the issue was properly raised in a counterclaim.
Defense of Lack of Jurisdiction Over Defendant. An objection to personal
jurisdiction must be raised in the first responsive pleading, or it is waived. MCR
2.111(F)(2). In re Gordon Estate, 222 Mich App 148, 158; 564 NW2d 497 (1997).
Defense of Equitable or Judicial Estoppel. Equitable estoppel exists where a
party: 1) intentionally or negligently induces another party to believe facts; 2) the
other party justifiably relies and acts on the belief; and 3) the party will be prejudiced
if the first party is permitted to deny the existence of the facts. Cook v Grand River
Hydro Electric Power Co, Inc, 131 Mich App 821, 828; 346 NW2d 881 (1984).
Yahrling v Belle Lake Ass’n, Inc, 145 Mich App 620, 627; 378 NW2d 772 (1985).
Equitable estoppel may preclude a party who successfully maintains one position
in a lawsuit from taking an inconsistent position in a subsequent lawsuit on the
same issue. Judicial estoppel similarly prevents a party who has successfully
asserted a position in a prior judicial proceeding from asserting an inconsistent
position in a subsequent proceeding. Torsky v Avon Products, Inc, 707 F Supp
942, 946 (WD Mich, 1988). Davis v Wakelee, 156 US 680, 689, 15 S Ct 555, 558,
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39 L Ed 578 (1895). Judicial estoppel seeks to prevent intentional inconsistency
and protect the integrity of the judicial system as an institution. Billingsley v Gullick,
256 Mich 606, 608; 240 NW 46 (1932). Estoppel and Waiver, 28 AM Jur 2d §69;
Mertz v Mertz, 311 Mich 46, 55-57; 18 NW2d 271 (1945). Burgess v Holder, 362
Mich 53; 106 NW2d 379 (1960). In the Matter of the Dissolution of F. Yeager Bridge
& Culvert Co, 150 Mich App 386, 394-395; 389 NW2d 99 (1986).
Defense of Statute of Frauds. The Michigan Statute of Frauds covers all
agreements, promises or contracts relating to medical care or treatment, not just a
“warranty of cure.” Powers v Peoples Community Hospital, 183 Mich App 550, 455
NW2d 371 (1990). Trotsky v Henry Ford Hosp., 169 Mich App 286, 425 NW2d 531
(1988). Smith v City of Pontiac, 169 Mich App 559, 426 NW2d 704 (1988).
Lawrence v Ingham County Health, 160 Mich App 420, 408 NW2d 461 (1987). A
form authorizing treatment is not a contract for the purposes of a breach of contract
claim. An agreement, promise, contract, or warranty of cure relating to medical care
or treatment an agreement, contract, or promise is void unless that agreement,
contract, or promise, is in writing and signed by an authorized signature of the party
being charged. MCL 566.132(1)(g). May v Harper Hospital, 185 Mich App 548, 462
NW2d 754 (1990).
Defense of Wrongful Conduct & In Pari Delicto. A person cannot maintain an
action which relies, in whole or in part, on an illegal or immoral act or transaction to
which they were a party. This “wrongful-conduct rule” is rooted in the public policy
that courts will not aid a person who founds a case on illegal conduct. Orzel v Scott
Drug Co, 449 Mich 550, 558-9; 537 NW2d 208 (1995). 1A CJS, Actions, § 29, p
386. 1 Am Jur 2d, Actions, § 45, p 752. To apply, the conduct must be serious and
prohibited under a penal or criminal statute. Further, the rule only applies where
there is a sufficient causal nexus between the plaintiff’s illegal conduct and the
claimed damages. Hashem v Les Stanford Oldsmobile, Inc, 266 Mich App 61, 89;
697 NW2d 558, 574 (2005). Ameriwood Industries Int’l Corp v Arthur Andersen &
Co. 961 F Supp 1078 (WD MI, 1997), applied the in pari delicto doctrine in an
accounting case. The wrongful conduct rule is an affirmative defense because it
does not rebut a prima facie case. Instead, it precludes a plaintiff from proceeding
for reasons unrelated to the prima facie case. Campbell v St John Hosp, 434 Mich
608, 615-616; 455 NW2d 695 (1990). The rule is applicable even where the
defendant has been an equal participant in the illegal activity or conduct. Manning
v Bishop of Marquette, 345 Mich 130, 133; 76 NW2d 75 (1956).
Defense of Discharge in Bankruptcy. Under 11 USC § 541(a), when bankruptcy
is declared, all assets are vested in the trustee, including causes of action. The only
way a bankrupt may bring suit during the pendency of the bankruptcy proceedings
is by showing abandonment of the claim, or by permission from the bankruptcy
court. If a plaintiff fails to disclose a cause of action on a bankruptcy filing, title to
the “property” cannot later be asserted. Kuriakuz v Community Nat’l Bank of
Pontiac, 107 Mich App 72; 308 NW2d 658 (1981). First Nat’l Bank v Lasater, 196
US 115, 119; 25 S Ct 206; 49 L Ed 408 (1905). An exception exists where plaintiffs
relying on the advice of counsel, did not believe that they did not have a valid legal
claim until after the bankruptcy case was discharged. Doe v Henke, (Unpublished,
November 18, 2008). In re Contempt of Rapanos, 143 Mich App 483, 495; 372
NW2d 598 (1985).
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VI.
Discovery
_________________________
A.
B.
C.
D.
E.
Informal Discovery
Formal Discovery
Privileges Against Discovery
HIPAA Federal Privacy Rule
Sanctions for Failure to Provide Discovery or Misconduct
_____________________________
A.
Informal Discovery
Informal Discovery of Public Records. Public records can be obtained without
notification or consent by making a request under the Freedom of Information Act
(“FOIA”), MCL 15.231 et seq. However, the act provides that certain information
may be redacted.
Informal Discovery by Witness & Ex Parte Physician Interviews. Defense
counsel may conduct private interviews with witnesses and treating physicians,
where a qualified protective order, consistent with 45 CFR 164.512(1)(e), has been
obtained from a court under MCR 2.302(C). HIPAA does not preempt Michigan law
concerning ex parte interviews. Holman v Rasak, 486 Mich 429, 442-448; 785
NW2d 98 (2010). Ex parte interviews with treating physicians are proper. GP
Enterprises v Jackson Nat’l Life Ins Co, 202 Mich App 557, 567; 509 NW2d 780
(1993). The Court in Holman did not consider what conditions a court may set for
ex parte interviews, but where Plaintiff made no showing supporting a fear that
defense counsel would “intimidate” treating physicians, requiring that plaintiff’s
counsel have notice and be present was an abuse of discretion. Szpak v Dr. Joy
Inyang, __ Mich App __; --- NW2d --- (November 23, 2010). The HIPAA Privacy
Rule became law in 2003. Prior to then, the waiver of the physician-patient privilege
was controlled by MCL 600.2157, MCR 2.314, and case law. Informal interviews
with treating physicians was allowed without notice once the physician-patient
privilege was waived, usually by the filing suit and not thereafter asserting the
privilege. Davis v Dow Corning, 209 Mich App 287 (1995). Domako v Rowe, 438
Mich 347, 361-362, 475 NW2d 30 (1991). When the Privacy Rule became effective,
it preempted state laws which were less stringent in protecting health care
information. Under HIPAA, a physician may only disclose protected health
information without written consent under 45 CFR 164.508, or an agreement
pursuant to 45 CFR 164.510, if the disclosure is in response to a court order,
subpoena, discovery request, or other lawful process. 45 CFR 164.512(e)(1)(i) and
(ii). A trial court may treat a HIPAA violation as a discovery violation under MCR
2.313(B), allowing sanctions to be within the discretion of the court. Belote v
Strange (Unpublished, October 25, 2005).
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Informal Discovery by Interviews With Party Employees Prohibited. MRPC 4.2
prohibit a lawyer, or the agent of a lawyer, from communicating with a party, or the
party’s representatives, who the lawyer knows are represented by counsel, without
the consent of the other lawyer. With respect to organizations, the rule prohibits
communications with persons having a managerial responsibility for the
organization, or any other person whose act or omission may be imputed to the
organization for purposes of civil or criminal liability, or whose statement may
constitute an admission on the part of the organization. MRCP Rule 4.2
Informal Discovery by Private Investigators. Investigators provide invaluable
services such as finding witnesses, obtaining statements and obtaining video or
other evidence to rebut claims. A private investigator-client privilege exists under
MCL 338.840 protecting any communications, oral or written secured in connection
with an assignment. Ravary v Reed, 163 Mich App 447, 451-452, 415 NW2d 240
(1987). A defendant has a right to investigate matters that are potential sources of
legal liability. Earp v Detroit, 16 Mich App 271 (1969). Saldana v Kelsey-Hayes Co,
178 Mich App 280 (1989). Beaumont v Brown, 65 Mich App 455 (1975) rev’d on
other grounds 401 Mich 80, 257 NW2d 522 (1977). It is not an abuse of discretion
for a trial court to allow a late naming of an investigator. Butt v Giammariner, 173
Mich App 319 (1988). The Private Detective License Act, MCL 338.822, permits
licensed private investigators to obtain information regarding: (i) Crimes or wrongs
done or threatened against the United States or a state or territory of the United
States. (ii) The identity, habits, conduct, business, occupation, honesty, integrity,
credibility, trustworthiness, efficiency, loyalty, activity, movement, whereabouts,
affiliations, associations, transactions, acts, reputation, or character of a person. (iii)
The location, disposition, or recovery of lost or stolen property. (iv) The cause or
responsibility for fires, libels, losses, accidents, or damage or injury to persons or
property. (v) Securing evidence to be used before a court, board, officer, or
investigating committee. MCL 338.822(b). A private investigator hired by defendant
to do a video surveillance was not liable for a violation of the civil stalking statute,
MCL 600.2954, where surveillance contributed to obtaining information permitted
under the Private Detective License Act, MCL 338.822(b)(i)-(v). Nastal v Henderson
& Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005). MRPC 5.3
prohibits a lawyer’s agent from participating in conduct that a lawyer may not
participate in. MRPC 4.2 prohibits lawyers from communicating about the subject
of their representation with a party represented by another attorney. However, a
brief communication initiated by the plaintiff with an investigator at a bar where
plaintiff worked as to how to ride a mechanical bull was not improper where it was
not initiated by the agent and did not involve the subject of the representation.
Beard v James Horton, Jr., D.O. (Unpublished, November 4, 2010).
Access to Medical Records During Notice Period. A claimant mailing a notice
of intent shall provide access to all medical records pertinent to the claim and
provide signed medical record releases within 56 days of the notice. MCL
600.2912b(5). Within 56 days of receipt of a notice of intent, a notified party or
facility must provide the claimant access to all medical records. This does not
restrict any other rights to access such records.
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Time to Disclose Impeachment or Rebuttal Evidence. Impeachment evidence
generally does not have to be disclosed until there is contradictory testimony. Butt
v Giammarirer, 173 Mich App 319 (1988). McMiddleton v Otis Elevator 139 Mich
App 418 (1984).
B.
Formal Discovery
Scope of Formal Discovery. Michigan generally allows broad formal discovery,
following the general rule that any information that is relevant, non-privileged, and
which may lead to the discovery of admissible information, is discoverable upon
request. Ide v Ide, 172 Mich App 49, 54-55 (1988). Davis v O’Brien, 152 Mich App
495, 502-504 (1986). Fassihi v St. Mary’s Hospital of Livonia, 121 Mich App 11, 15
(1982). There is no requirement of “good cause” to obtain discovery of relevant and
non-privileged information. Oral or written depositions, interrogatories, requests for
documents, physical examinations, requests for admissions, and notices to produce
medical information are all authorized under the Michigan court rules. Discovery is,
however, properly limited to material which is relevant, or which may lead to
discovery of relevant information. MCR 2.302(B). Domako v Rowe, 438 Mich 347,
359-361 (1991). Paramount Pictures Corporation v Miskinis, 418 Mich 708, 727-729
(1984). Haglund v Vandorn Company, 169 Mich App 524, 529-530 (1988).
Rappaport v Rappaport, 158 Mich App 741, 750 (1987).
Witness Statements Discoverable. Tape-recorded or signed witness statements
are generally discoverable. Powers v City of Troy, 28 Mich App 24, 184 NW2d 340
(1970). Peters v Gaggos, 72 Mich App 138, 249 NW2d 327 (1976). Great Lakes
Concrete Pole v Eash, 148 Mich App 649, 385 NW2d 296 (1986).
Defendant’s Assets Generally Not Discoverable. Discovery of a defendant’s
personal assets is generally not relevant in a personal injury lawsuit and is not
allowed. Bauroth v Hammoud, 465 Mich 375, 632 NW2d 496 (2001).
Expert Interrogatories. Interrogatories may inquire as to the names of experts
who may testify at trial, including their qualifications, opinions, and the basis for any
opinions. Kirnan v Rendziperis, 62 Mich App 359, 233 NW2d 281 (1975). Roe v
Cherry-Burrell Corp, 28 Mich App 42, 184 NW2d 350 (1970). MCR 2.302(E)(1)(a)(ii)
provides that a party who has responded to a request for discovery with a response
that was complete when made is under no duty to supplement the response to
include information acquired later, except for a duty to seasonably supplement the
response with respect to questions relating to person expected to be called as
experts at trial, the subject matter on which the expert is expected to testify, and the
substance of the expert’s testimony. MCR 2.302(E)(2) provides that if the court finds
that a party has not seasonably supplemented responses as required it may enter
an order as is just, including an order providing the sanctions stated in MCR
2.313(B). MCR 2.313(B)(2)(b) provides that, as a sanction for discovery violations,
a court may enter an order refusing to allow the disobedient party to support or
oppose designated claims or defenses, or prohibiting the party from introducing
designated matters into evidence.
87
Depositions. A party may take the depositions of any witnesses with personal
knowledge concerning the case. The depositions may be used by any party as the
rules of evidence allow. The deposition of a party or expert may be used for any
purpose. Reading lay witness depositions may require a showing that the witness
is unavailable for trial. MRE 801; MRE 802; MRE 803; MCR 2.308. Three court rules
govern taking depositions of witnesses. MCR 2.301(C) provides that after the close
of discovery, a deposition of a witness taken solely for the purpose of preservation
of testimony may be taken at any time before commencement of trial without leave
of court. Notice of an intent to take the deposition of witnesses after trial has begun
is untimely. MCR 2.302(B)(4)(d) provides, in pertinent part, that a party may depose
a witness that he or she expects to call as an expert at trial. The deposition may be
taken any time before trial on reasonable notice. MCR 2.302(F)(1) provides that,
unless the court orders otherwise, by written stipulation the parties may provide that
depositions may be taken before any person, at any time or place, on any notice,
and in any manner, and when so taken may be used like other depositions.
Subpoenas for Witnesses. MCR 2.305(C) governs the proper place for witnesses
who are subpoenaed to give a deposition. A subpoenaed deponent may be required
to attend an examination in the county where the deponent resides, is employed,
or transacts business in person, or at another convenient place specified by order
of the court.
Discovery Only Depositions. A party may take the deposition of an opposing
expert. MCR 2.302(C)(7), allows the Court to order that a deposition be taken only
for discovery and not for use at trial. Such a deposition is not admissible except for
impeachment. The party who notices the deposition must pay the expert’s time
spent in deposition. In the absence of a protective order, if a deposition is noticed
as “discovery only” and there is no objection, the notice controls its use. MCR 2.302;
MCR 2.302(C)(7). MCR 2.302(F). Petto v The Raymond Corp., 171 Mich App 688,
431 NW2d 44 (1988), lv den 433 Mich 878 (1989).
Independent Medical Examinations. A defendant may obtain an independent
examination of a plaintiff where good cause is shown. Invasive testing is not allowed
unless ordered by the court. MCR 2.311; Brewster v Martin Marietta, Inc., 107 Mich
App 639, 309 NW2d 687 (1981). Schlagenhauf v Holder, 379 US 104, 85 S Ct 234,
13 L Ed 2d 152 (1964). Blackwell v Citizens Insurance Company of America, 457
Mich 662, 579 NW2d 889 (1998).
Requests for Admissions of Fact. MCR 2. 312(A) states that a request for an
admission must concern “statements or opinions of fact or the application of law to
fact...” Under MCR 2.312(B)(1), a party may submit to another party a request to
admit certain facts. Answers must be served within 28 days, or the requests are
deemed admitted. MCR 2.312(B)(1). A matter admitted, either by answer or nonresponse, is conclusively established unless the court on motion permits withdrawal
or amendment of an admission. MCR 2.312(D)(1). Admissions under MCR 2.312
are “judicial admissions” which are conclusive and not subject to contradiction or
explanation. Hilgendorf v St John Hosp & Medical Center Corp, 245 Mich App 670,
689, 630 NW2d 356 (2001). Radtke v Miller, Canfield, Paddock & Stone, 453 Mich
88
413, 551 NW2d 698 (1996). Janczyk v Davis, 125 Mich App 683, 687, 337 NW2d
272 (1983). Admissions by one defendant are not binding on a co-defendant. Lenzo
v Maren Engineering Corp, 132 Mich App 362, 366, 347 NW2d 32 (1984). Smith v
Woronoff, 75 Mich App 24, 30, 254 NW2d 637 (1977). MCR 2.116(G)(5) allows a
court to rely upon “admissions,” along with other documentary evidence, to decide
a motion for summary disposition. Employers Mut Casualty Co v Petroleum
Equipment, Inc, 190 Mich App 57, 61-62, 475 NW2d 418 (1991). An admission by
an attorney on a point of law as opposed to a statement of fact is not binding on a
court. Michigan Health Care, Inc v Flagg Industries, Inc, 67 Mich App 125, 130; 240
NW2d 295 (1976). There is little case law interpreting MCR 2.313(C), which allows
sanctions for a failure to admit that is later proven. None states that a failure to
admit a legal conclusion is sanctionable. Whether a request to admit that there is
“no duty under the law” is predominantly a legal question is unclear as duty is a
question of law for a court to resolve. Smith v Jones, 246 Mich App 270, 274; 632
NW2d 509 (2001). The predecessor rule to MCR 2.312 did not require answers to
requests where they did not relate to “facts” but the elements of the defendants’
claims. The fact that the defendants later proved their case at trial did not mean that
the plaintiffs improperly denied the requests for admission. Greenspan v Rehberg,
56 Mich App 310; 224 NW2d 67 (1974). Sanctions for failing to admit negligence
was inappropriate where evidence of negligence was disputed. Richardson v Ryder
Truck Rental, Inc, 213 Mich App 447, 457-458; 540 NW2d 696 (1995).
Amending or Withdrawing an Admission. For good cause, the court may allow
amendment or withdrawal of an admission on terms that are just, but a party must
file a request to do so either before service of answers, or within a reasonable time
thereafter. MCR 2.312(F). A motion to amend a response brought pursuant to MCR
2.312(D)(1) is within the court’s discretion and will not be disturbed absent an abuse
of that discretion. Medbury v Walsh, 190 Mich App 554, 556, 476 NW2d 470
(1991). Kalkaska Environmental Services, Inc. v the Barrett Company, Inc.,
(Unpublished, November 28, 2000).
Late Response to Requests for Admissions. If a party to whom the request is
directed fails to answer the requests within 28 days, the requests are deemed
admitted unless the court allows the late responses. MCR 2.312(B)(1). The trial
court is to balance three factors in determining whether or not to allow a party to file
late answers. First, whether allowing the late answers will aid in the presentation of
the action or eliminate a trial on the merits. Second, whether another party would
be prejudiced if late answers are allowed. Third, the reason for the delay and
whether or not it was inadvertent.
Abusive Discovery Practices. A court should protect a party from excessive,
abusive, or irrelevant discovery requests. Cabrera v Ekemm, 265 Mich App 402,
407; 695 NW2d 781 (2005).
C.
Privileges Against Discovery
Privileges Against Discovery Generally. Documents are generally discoverable
upon request where relevant and not privileged. Davis v O’Brien, 152 Mich App 495,
393 NW2d 914 (1986). There are absolute and “qualified” privileges. A “qualified”
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privilege precludes discovery where essentially similar information can be obtained
elsewhere without undue hardship. Privileges supersede discovery principles.
Certain documents, including records of peer review committees and attorney
communications, are not discoverable based upon common law or statutory
privileges. Porter v Michigan Osteopathic Hosp Ass’n, Inc, 170 Mich App 619, 627
(1988), lv den 432 Mich 915 (1989).
Physician Patient Privilege. MCL 600.2157 provides that, except as otherwise
provided by law, a person duly authorized to practice medicine or surgery shall not
disclose any information that the person has acquired in attending a patient in a
professional character, if the information was necessary to enable the person to
prescribe for the patient as a physician, or to do any act for the patient as a
surgeon. The doctor/patient privilege protects the identity of non-party patients
regardless of need. In Schechet v Kesten, 372 Mich 346, 350-351; 126 NW2d 718
(1964), the Supreme Court held that the physician-patient privilege protects the
names of patients who were not parties to the case. The physician-patient privilege
imposes an absolute bar. It prohibits the physician from disclosing, in the course of
any action wherein his patient or patients are not involved and do not consent, even
the names of such noninvolved patients. In Dorris v Detroit Osteopathic Hosp Corp,
220 Mich App 248, 249; 559 NW2d 76 (1996), the plaintiff requested the name of
her roommate in the hospital because she claimed the roommate was present when
she refused the drug. The Court held the name of the nonparty roommate was
protected by the physician-patient privilege. See also: Popp v Crittenton Hosp, 181
Mich App 662; 449 NW2d 678 (1989); Dierickx v Cottage Hosp Corp, 152 Mich App
162, 164-165; 393 NW2d 564 (1986). The names of non-party patients are
protected by the physician-patient privilege, and hospitals have a duty to refrain
from disclosing the names of such persons. The privilege prohibits disclosure of
any information acquired under the requisite circumstances, even if the patient
identity is redacted. The privilege belongs to the patient and can be waived only by
the patient. Baker v Oakwood Hosp Corp, 239 Mich App 461; 608 NW2d 823
(2000). Defendants operative logs showing the type of surgeries performed, as well
as the time and the dates of the surgeries contain information necessary to attend
and evaluate a patient’s condition and are protected by the doctor/patient privilege.
Johnson v. Detroit Medical Center __ Mich App __ (December 21, 2010). In Steiner
v. Bonanni, __ Mich App __ (April 7, 2011), the Court of Appeals held that a HIPAA
“qualified protective order” cannot involuntarily require disclosure of non-party
patient names where applicable Michigan law was more stringent than HIPAA.
Under MCL 600.2157, and Michigan precedent, there are no exceptions for
providing random patient information related to any lawsuit. Unlike HIPAA, MCL
600.2157 does not provide for disclosure in judicial proceedings. While HIPAA
makes disclosure exceptions for public health activities, victims of abuse, neglect,
or domestic violence or for health oversight activities. 45 CFR 164.512(b), (c) and
(d), Michigan law does not.
Other Professional Treatment Privileges. The psychologist-patient privilege, MCL
333.18237, covers communications made to a psychiatrist or psychologist in
connection with the examination, diagnosis, or treatment of a patient, or to another
person participating in the examination, diagnosis, or treatment or a communication
made privileged under other applicable state or federal law. MCL 330.1750 of the
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Mental Health Code generally provides that communications shall not be disclosed
unless the patient has waived the privilege, or specified conditions exist. Similar
privileges cover social workers under MCL 339.1610; professional counselors under
MCL 333.18117; dentists under MCL 333.16648; and licensed professional
counselors and limited license counselors under MCL 333.18117.
Physician Patient Privilege is not Waived for Relatives. The physician-patient
privilege is not waived as to any relatives and siblings. Popp v Crittenton Hospital,
181 Mich App 662, 449 NW2d 678 (1989). Dieryckx v Cottage Hospital, 152 Mich
App 162, 393 NW2d 564 (1986). The physician-patient privilege prohibits disclosing
the identities of patients who do not consent to such disclosure. MCL 600.2157.
Schechet v Kesten, 372 Mich 346, 351, 126 NW2d 718 (1964). Dorris v Detroit
Osteopathic Hospital, 460 Mich 26, 594 NW2d 455 (1999).
Inadvertent Waiver of Privilege. The use of privileged materials that have been
inadvertently disclosed to an opposing party is not allowed. Liebel v General Motors
Corp, 250 Mich App 229 (2002), after remand, lv den 468 Mich 865 (2003). Franzel
v Kerr Mfg Co, 234 Mich App 600 (1999), lv den 462 Mich 851 (2000). Sterling v
Keidan, 162 Mich App 88 (1987). Wrench LLC v Taco Bell Corp, 212 FRD 514 (WD
Mich, June 6, 2002). Chrysler Corp v Sheridan, 2001 WL 773099 (Unpublished, July
10, 2001), lv den 465 Mich 927 (2001). Excell Const, Inc v Michigan State Univ Bd
of Trustees, (Unpublished, January 14, 2003), lv den 469 Mich 864 (2003). Holland
v The Gordy Co, (Unpublished, April 29, 2003), lv den 469 Mich 948 (2003).
Hartman v Metropolitan Hospital (Unpublished, March 16, 2004).
Qualified Privilege for Attorney & Claim Files. While the attorney client privilege
is absolute for communications with a client, the insurer is not covered, nor are
documents. However, a “qualified” privilege exists against discovery of claims
materials prepared for anticipated and active litigation. Attorney work product and
claims investigation summaries are protected and discoverable only where the
opposing party shows a “substantial need” and “undue hardship” based upon an
inability to obtain the equivalent information by other means. Mental impressions
in any such records, and the opinions of counsel remain protected even if disclosure
is ordered. Any disclosure of claims records must protect the “thought processes”
of defendants’ representatives. Koster v June’s Trucking, Inc, 244 Mich App 162,
171; 625 NW2d 82 (2000). An in camera review by the court is proper to verify and
protect privileged documents. MCR 2.302(B)(3)(a). Powers v City of Troy, 28 Mich
App 24, 184 NW2d 340 (1970). Peters v Gaggos, 72 Mich App 138, 249 NW2d 327
(1976). Great Lakes Concrete Pole v Eash, 148 Mich App 649, 385 NW2d 296
(1986). Lynd v Chocolay Township, 153 Mich App 188, 195 (1986). MCR
2.302(B)(3)(a). Information provided by a physician to an insurer is not discoverable.
Tomas v Harrison, 634 P2d 328 (Wyo 1981). Claim reserve information is
privileged. A claims file is discoverable where an insurer’s alleged bad faith is in
issue. Brown v Superior Court of Arizona, 137 Ariz 327, 670 P2d 725 (1983).
Qualified Privileged as to Expert Reports. An expert report prepared for an
attorney is work-product and subject to a qualified privilege. It may be discovered
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only on showing substantial need and undue hardship. MCR 2.302(B). Backiel v
Sinai Hospital, 163 Mich App 774, 415 NW2d 15 (1987).
Privilege as to Quality Assurance & Peer Review Records. MCL 333.21501
et seq., governs the regulation of hospitals. MCL 333.21513 addresses hospital
responsibilities and duties regarding its medical staff’s credentials and privileges.
The statute provides, in pertinent part: The owner, operator, and governing body of
a hospital licensed under this article: (a) Are responsible for all phases of the
operation of the hospital, selection of the medical staff, and quality of care rendered
in the hospital. (b) Shall cooperate with the department in the enforcement of this
part, and require that the physicians, dentists, and other personnel working in the
hospital who are required to be licensed or registered are in fact currently licensed
or registered. (c) Shall assure that physicians and dentists admitted to practice in
the hospital are granted hospital privileges consistent with their individual training,
experience, and other qualifications. (d) Shall assure that physicians and dentists
admitted to practice in the hospital are organized into a medical staff to enable an
effective review of the professional practices in the hospital for the purpose of
reducing morbidity and mortality and improving the care provided in the hospital for
patients. The review shall include the quality and necessity of the care provided and
the preventability of complications and deaths occurring in the hospital. MCL
333.21515 provides: “records, data, and knowledge collected for or by individuals
or committees assigned a review function. . . shall be used only for the purposes
provided in this article, shall not be public records, and shall not be available for
court subpoena.” MCL 333.20175(8) provides that “records, data, and knowledge
collected for or by individuals or committees assigned a professional review function
in a healthy facility or agency… are confidential, shall be used only for the purposes
provided in this article, are not public records, and are not subject to court
subpoena.” Under MCL 333.21513, hospitals are required to establish peer review
committees whose purposes are to reduce morbidity and mortality and to ensure
quality of care. Included in their duties is the obligation to review the professional
practices of licensees, granting staff privileges consistent with each licensee’s
qualifications. MCL 333.21515 provides that the records, data, and knowledge
collected for or by individuals or committees assigned a review function are
confidential and shall be used only for the purposes provided in this article, shall not
be public records, and shall not be available for court subpoena. MCL 333.21521
provides that a hospital shall meet the minimum standards and rules authorized by
the act and shall endeavor to carry out practices that will further protect the public
health and safety, prevent the spread of disease, alleviate pain and disability, and
prevent premature death. MCL 333.21515 prohibits the discovery of hospital
privileging and credentialing files. Attorney General v Bruce, 422 Mich 157, 169173; 369 NW2d 826 (1985). A credentialing committee is a peer review committee.
Materials relating to the provision of staff privileges are covered under the peer
review statutes and are protected from disclosure. Dye v St John Hosp & Med Ctr,
230 Mich App 661, 664-669. Dorris v Detroit Osteopathic Hospital, 460 Mich 26, 40,
594 NW2d 455 (1999). Johnson v. Detroit Medical Center __ Mich App __
(December 21, 2010). The purpose of the statutes is to allow frank exchanges of
information to accomplish a statutory duty to review the qualifications and
competency of medical staff and encourage and implement productive peer review
procedures. Gallagher v Detroit-Macomb Hospital Ass’n, 171 Mich App 761, 768,
92
431 NW2d 90 (1988). The statutes apply regardless of whether the claim is for
malpractice. Stokes v Mullen Roofing Co, 466 Mich 660, 671, 649 NW2d 371
(2002). Ligouri v Wyandotte Hospital and Medical Center, 253 Mich App 372, 655
NW2d 592 (2002). The mere submission of a document for review does not make
it privileged. Where there is a dispute as to the application of the privilege, the trial
court should conduct a private in camera review of the documents. Dye v St John
Hospital & Medical Center, 230 Mich App 661, 665, 584 NW2d 747 (1998). Attorney
General v Bruce, 422 Mich 157, 165-168, 369 NW2d 826 (1985). Monty v Warren
Hosp Corp, 422 Mich 138, 144 (1985). Briggs v Upjohn Co, 200 Mich App 62, 67
(1993). Marchand v Henry Ford Hospital, 398 Mich 163, 167, 247 NW2d 280
(1976).
Qualified Privilege as to Medical Association Records. A qualified privilege
exists under the First Amendment protecting unrestricted discovery of medical
association records. Marrese v American Academy of Orthopedic Surgeons, 767
F2d 927 (7th Cir 1984).
Depositions of High Ranking Officials and Officers. Before a party may take the
deposition of a high-ranking government official or corporate officer, the party must
demonstrate that: (1) the government official or corporate officer possesses
superior or unique information relevant to the issues being litigated, and (2)
information cannot be obtained by a less intrusive method, such as by deposing
lower-ranking employees. This “apex” rule sequences discovery in order to prevent
litigants from deposing high ranking government officials as a matter of routine
procedure before less burdensome discovery methods are attempted. Alberto v
Toyota Motor Corporation, __ Mich App __; --- NW2d --- (August 5, 2010).
Expert Discovery Limitations. In malpractice claims, an expert is not required to
produce tax records, personal diaries or calendars. Family members may not be
deposed regarding the time spent on professional activities. MCL 600.2169(5)(a)(c). Generally, discovery of expert opinions is controlled by MCR 2.302(B)(4).
Backiel v Sinai Hospital, 163 Mich App 774, 779,415 NW2d 15 (1987). The identity
and opinions of an expert who is not intended to be called at trial is not discoverable
absent exceptional circumstances. MCR 2.302(B)(4)(b).
Non Privileged Medical Records. The physician-patient privilege does not apply
to independent medical examinations. VanSickle v McHugh, 171 Mich App 622, 430
NW2d 799 (1988). County coroner autopsy information is not privileged. Green v
St. Clair County Road Commission, 175 Mich App 478, 438 NW2d 630 (1989). The
privilege is not violated where a statute requires reporting. People v Traylor, 145
Mich App 148, 377 NW2d 371 (1985). Virtually all licensed health care professionals
are required to report suspected child abuse or neglect within 72 hours. MCL
333.16281 provides immunity for health care providers reporting or participating in
child abuse or neglect investigations. MCL 722.623.
Privilege Against Self Incrimination Under the 5th Amendment. MRE 804(b)(5)
allows the use of prior testimony in a subsequent proceeding where an opposing
party has the opportunity to cross-examine the witness. If the 5th amendment is
asserted, the prior testimony should not be admitted. A defendant has a right to
93
cross examine the witness on material points. It secures to litigants the best means
of ascertaining the reasonableness and truthfulness of the direct testimony. Petrie
v Lane 58 Mich 527 (1885).
Privilege as to Records of Impaired Medical Professional. The identity of a
person providing information regarding suspected impairment of a health
professional is confidential. The identity of a health professional in a recovery
program is confidential and not subject to discovery unless the professional fails to
satisfactorily complete treatment or violates MCL 333.16170(3) relating to limitation
of practice. MCL 333.16170a.
D.
HIPAA Federal Privacy Rule
HIPAA the “Health Insurance Portability and Accountability Act.” The Health
Insurance Portability and Accountability Act of 1992 (“HIPAA”) was amended in
1996 to provide nationwide standards for the privacy of Personal Health Information
(“PHI”). The purpose of the HIPAA Privacy Rule was to provide: 1. patient control
over their records and the ability to find out who accesses their records; 2.
limitations on disclosure, with exceptions for research, utilization review, and quality
assurance, (usually with identifying information removed; and 3. privacy and limited
access to medical records. Criminal and civil penalties were created for improper
use or disclosure of information, including fines and imprisonment for improper use
of protected information. The HIPAA Privacy regulations cover health plans, health
care clearinghouses, and health care providers who conduct certain financial and
administrative transactions electronically. Electronic billing and fund transfers are
included. HIPAA covers traditional and electronic medical records . The typical
“covered entity” is required to:
1.
2.
3.
4.
5.
6.
Obtain written consent for disclosures of information.
Provide information to patients about their privacy rights and how
their information can be used.
Adopt clear privacy procedures.
Train employees to understand the privacy procedures.
Designation of a “privacy officer” responsible for adopting and
complying with the privacy procedures.
Secure patient records containing individually identifiable health
information from those who do not need them.
HIPAA compliant consent forms allow health care providers to use and disclose all
personal history information in various ways. HIPAA “authorizations” are different
in that they give permission to health care providers to disclose information to a third
parties specified in the authorization. An authorization covers only the uses and
disclosures stipulated in the authorization and has an expiration date. Disclosures
between health care providers for treatment purposes are exempt from a general
requirement that any permitted disclosures of information provided the “minimum
necessary” information. Business associates are generally not covered under
HIPAA but covered entities must contractually require them to protected patient
information and advise a covered entity when violations have occurred. 45 CFR §§
94
160.103, 164.502(e). 45 CFR §§ 164.514(e). The HIPAA Privacy Rule permits the
use of debt collection agencies. 45 CFR 164.501.
HIPAA & Disclosure of Records in Legal Actions. Where a covered entity is a
party to a legal proceeding, the entity may use or disclose protected health
information for purposes of the litigation as a part of its health care operations. The
definition of “health care operations” includes conducting or arranging for legal
services when related to a covered entity’s covered functions. 45 CFR 164.501. A
covered entity defendant in a malpractice action, or suing to obtain payment, may
disclose protected health information in the litigation as part of its operations. Under
45 CFR 164.512(e)(1)(ii) of the HIPAA Privacy Rule, a covered entity that is not a
party to litigation may disclose protected health information in response to a
subpoena, discovery request, or other lawful process if the covered entity has
satisfactory assurances in a written statement and accompanying documentation
that the requestor made reasonable efforts either to ensure that the subject of the
information has been given sufficient notice of the request, or to secure a qualified
protective order. If these conditions are met, a court order is not required. A covered
entity may disclose protected health information to comply with a court order,
including an order of an administrative tribunal. Such disclosures are limited to
information expressly authorized by the order. 45 CFR 164.512(e)(1)(I).
E.
Sanctions for Failure to Provide Discovery or Misconduct
Sanctions for Failure to Comply With Court Rules or Orders. A trial court has
inherent authority to impose sanctions, including dismissal, attorney fees and
expenses of witnesses, on the basis of misconduct of a party or attorney. Persichini
v Beaumont Hospital, 238 Mich App 626, 639; 607 NW2d 100 (1999). Cummings
v Wayne County, 210 Mich App 249; 533 NW2d 13 (1995) (vandalism and threats).
The authority to dismiss for misconduct is from the equitable “clean hands doctrine”
but applies in all claims. Buchanan Home & Auto Supply Co v Firestone Tire &
Rubber Co, 544 F Supp 242, 244-245 (D SC, 1981). Chambers v NASCO, Inc, 501
US 32, 43; 111 S Ct 2123; 115 L Ed 2d 27 (1991). Tampering with the
administration of justice is a wrong against our institutions which cannot be
tolerated. Hazel-Atlas Glass Co v Hartford-Empire Co, 322 US 238, 246; 64 S Ct
997; 88 L Ed 1250 (1944). Precision Instrument Mfg Co v Automotive Maintenance
Machinery Co, 324 US 806, 814-815; 65 S Ct 993; 89 L Ed 1381 (1945). A party
may move for dismissal, default or other sanctions for a failure to comply with the
court rules or a court order. MCR 2.504. MCR 2.313(B)(2)(c) authorizes dismissal
if a party fails to provide discovery. MCR 2.313(C) authorizes awarding expenses
for improper failures to admit. MCR 2.313(D)(1)(a)1 states that if a party fails to
appear for a deposition, the court may order sanctions under MCR 2.313(B)(2)(a),
(b) and (c). A trial court should consider the following non-exhaustive factors in
determining an appropriate discovery sanction: (1) whether the violation was wilful
or accidental, (2) the party’s history of refusing to comply with discovery requests
(or refusal to disclose witnesses), (3) the prejudice to the defendant, (4) actual
notice to the defendant of the witness and the length of time prior to trial that the
defendant received such actual notice, (5) whether there exists a history of plaintiff
engaging in deliberate delay, (6) the degree of compliance by the plaintiff with other
95
provisions of the court’s order, (7) an attempt by the plaintiff to timely cure the
defect, and (8) whether a lesser sanction would better serve the interests of justice.
Dean v Tucker, 182 Mich App 27, 32-33; 451 NW2d 571 (1990). Houston v
Southwest Detroit Hosp, 166 Mich App 623, 629-630; 420 NW2d 835 (1987).MCR
2.300, et seq. Bass v Combs, 238 Mich App 16, 26-27, 604 NW2d 727 (1999).
Dismissal for discovery violations is a drastic step that should be taken cautiously.
Vicencio v Ramirez, 211 Mich App 501, 506; 536 NW2d 280 (1995). Dismissal
should be imposed only when a party willfully and flagrantly refuses to provide
discovery. Edge v Ramos, 160 Mich App 231, 234, 407 NW2d 625 (1987). Severe
sanctions such as dismissal are generally appropriate “only when there has been
a flagrant and wanton refusal to facilitate discovery and not when failure to comply
with a discovery request is accidental or involuntary.” Traxler v Ford Motor Co, 227
Mich App 276, 286; 576 NW2d 398 (1998). A decision on discovery sanctions is
reviewed for an abuse of discretion. Local Area Watch v Grand Rapids, 262 Mich
App 136, 147; 683 NW2d 745 (2004). An abuse of discretion occurs when the trial
court’s decision is outside the range of reasonable and principled outcomes.
Maldonado v Ford Motor Co, 476 Mich 372, 388; 719 NW2d 809 (2006). A court
may preclude expert testimony as a sanction for disobeying a discovery order. MCR
2.313(B)(2)(b). LaCourse v Gupta, 181 Mich App 293, 296; 448 NW2d 827 (1989).
Sanctions for Failure to Attend Settlement Conference. A trial court has
authority to direct that persons with authority to settle the case, including
“representatives of insurance carriers,” attend a settlement conference. MCR
2.401(G) provides that the failure of a party or the party’s attorney to attend a
scheduled conference constitutes a default under MCR 2.603 or grounds for
dismissal under MCR 2.504(B). The court shall excuse the failure to attend if entry
of an order of default or dismissal would cause manifest injustice, or the failure to
attend was not culpable negligence by the party or attorney. The court may
condition the order on payment by the party or attorney of reasonable expenses as
provided in MCR 2.313(B)(2). Disposition on the merits is favored, and dismissals
should be ordered cautiously. Ordering a default or dismissal is discretionary, but
the court must evaluate all available options on the record and consider: (1) whether
the violation was willful or accidental; (2) the history of refusing to comply with
previous court orders; (3) the prejudice to the opposing party; (4) whether there
exists a history of deliberate delay; (5) the degree of compliance with other parts of
the court’s orders; (6) attempts to cure the defect; and (7) whether a lesser sanction
better serves the interests of justice. Vicencio v Jaime Ramirez, MD, PC, 211 Mich
App 501, 506-7; 536 NW2d 280 (1995). Dean v Tucker, 182 Mich App 27, 32-33,
451 NW2d 571 (1990). Public Lumber Co., Inc. v Robbins (Unpublished, February
21, 2006). Schell v Baker Furniture Co, 232 Mich App 470, 474, 591 NW2d 349
(1998), aff’d 461 Mich 502 (2000). However, the failure to have a representative
from an insurer at a settlement conference is not a basis for sanctions or default.
McGee v Macambo Lounge, Inc., 158 Mich App 282, 404 NW2d 242 (1987). Henry
v Prusak, 229 Mich App 162, 168; 582 NW2d 193 (1998).
Default for Failure to Timely File Responsive Pleadings. A default judgment
may be entered if a defendant fails to timely respond to pleadings properly served.
MCR 2.108 requires an answer to be filed and served rules within 21 days of
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personal service of the summons and complaint. 28 days are allowed if service was
by registered mail. MCR 2.603 provides that a notice of entry of default may be filed
and served where there has been a failure to respond to the complaint. After seven
days, the plaintiff may request that the court enter a default judgment. The entry of
a default is the equivalent of admitting all of the allegations in the complaint. Where
a trial court has entered a default judgment, the defendant is estopped from
litigating liability. No action may be taken to defend unless the default is set aside.
Wood v DAIIE, 413 Mich 573, 578, 321 NW2d 653 (1982). American Central Corp
v Stevens Tan Lines, Inc, 103 Mich App 507, 512, 303 NW2d 234 (1981).
Defaults & Contesting Causation & Damages. Generally, even if a default on
liability is entered, a defendant may still contest proximate cause and damages.
Zaiter v Riverfront Complex, 463 Mich 544 (2001). Dollar Rent-A-Car v Nodel, 172
Mich App 738 (1988). Law Offices v Semaan, 135 Mich App 545 (1984). Meyer v
Walker Land, 103 Mich App 526 (1982). A default judgment is not an admission as
to the amount of damages. Midwest Mental Health Clinic, PC v Blue Cross & Blue
Shield of Michigan, 119 Mich App 671, 675, 326 NW2d 599 (1982). A trial court has
discretion to allow a defaulted party to introduce evidence of comparative
negligence at a trial on damages only. Kalamazoo Oil Company v Boerman, 242
Mich App 75, 618 NW2d 66 (2000).
Default for Failure of Party to Attend Trial. MCR 2.117(B)(1) provides that an
appearance by an attorney is an appearance by a party, and any act of a party may
be performed by the attorney. Unless a subpoena or order is entered requiring the
Defendant to be present at trial, attendance is not required, and entry of a default
judgment is improper. Rocky Produce, Inc v Frontera, 181 Mich App 516, 517-518,
449 NW2d 916 (1989). Fountaine v Queen (Unpublished, November 5, 2002). A
default judgment was reversed as to a defendant who failed to appear at trial.
Where her attorney was present on her behalf, the right to representation by legal
counsel in a civil case is provided for in the Michigan Constitution. Therefore, under
Const 1963, art 1, § 13 such absence was permitted. Rocky Produce, Inc v
Frontera, 181 Mich App 516; 449 NW2d 916 (1989). MCR 2.117(B)(1) provides, in
part, that an appearance by an attorney is an appearance by the party. Any act
required to be performed by a party may be performed by an attorney representing
the party. A party may be required to appear at trial if a subpoena has been issued.
The failure to comply with a subpoena may result in a default under MCR 2.506.
Absent a subpoena or court order, a defendant in a civil case is not required to
appear in person at trial. Griffiths v Sezgin, (Unpublished, August 23, 2005).
Sanctions for Misconduct & “Free Speech.” It is not a violation of free speech
to impose narrow and necessary restrictions on attorney speech where there is a
substantial likelihood that such speech will influence the actual outcome of trial or
prejudice the jury venire. Davis v Dow Corning Corp, 209 Mich App 287, 294; 530
NW2d 178 (1995). Gentile v State Bar of Nevada, 501 US 1030, 1072-1073; 111
St Ct 2720; 115 L Ed2d 888 (1991). Seattle Times Co v Rhinehart, 467 US 20, 32;
104 S Ct 2199; 81 L Ed 2d. MRPC 3.6.
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Sanctions for Spoliation (Destruction) of Evidence. A trial court may sanction
a party for failing to preserve evidence that is known, or should be known, to be
relevant before formal litigation commences. Sanctions should be crafted to fit the
circumstances. Before ordering a dismissal, the trial court must evaluate all options
on the record. A court may sanction a failure to preserve evidence which was
known, or should have been known, to be relevant before the formal litigation.
Bloemendaal v Town & Country Sports, Inc, 255 Mich App 207, 211; 659 NW2d 684
(2003). Vicencio v Ramirez, 211 Mich App 501, 506, 536 NW2d 280 (1995).
MASB-SEG Property/Casualty Pool, Inc v Metalux, 231 Mich App 393, 400, 586
NW2d 549 (1998). Hamann v Ridge Tool Co, 213 Mich App 252 (1995). Welsh v
US, 844 F2d 1239 (CA 6, 1988). Lagalo v Allied Corp, 233 Mich App 514 (1999).
Ritter v Meijer, 128 Mich App 783 (1983). In cases involving the loss or destruction
of evidence, a court may make such rulings as necessary to promote fairness and
justice. Brenner v Kolk, 226 Mich App 149, 160; 573 NW2d 65 (1997).
Destruction or Alteration of Medical Records. Destruction or alteration of
medical records to conceal responsibility for an injury is a crime. MCL 750.492a.
Dresden v Detroit Macomb Hospital Corporation, 218 Mich App 292, 553 NW2d 387
(1996). People v McMurchy, 249 Mich 147 (1930).
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VII.
Motion Practice
__________________________
A.
B.
C.
D.
E.
Motion Practice Generally
Motions Filed as First Responsive Pleading
Discovery and Procedural Motions
Motions for Summary Disposition
Pre-Trial Motions
___________________________
A.
Motion Practice Generally
Motion Practice Generally. A motion may be brought, if timely, to enforce any
right under Michigan law. Such rights which may be enforced by motion to the
Court include procedural rights, such as timely disclosure of witnesses, answers to
discovery requests and reasonable notice as to what claims are being made. Other
rights which may be enforced are “substantive,” going to the heart of the law
governing any particular case. These include the right to require proof of all
elements of a claim, to have the proper legal standard observed, and so on.
Motions Preserve the Record on Appeal. Appeal rights are generally limited to
issues and objections raised in the trial court. All important issues should be raised
at the trial court level to preserve the right to appeal. Eriksen v Fisher, 166 Mich
App 439, 451, 421 NW2d 193 (1988). Providence Hospital v Labor Fund, 162 Mich
App 191, 412 NW2d 690 (1987). Loper v Cascade Township, 135 Mich App 106,
352 NW2d 357 (1984).
Motion for Rehearing. If a party is aggrieved by a ruling, a motion for rehearing
may be brought within 14 days. No response or oral argument is generally allowed.
Such a motion should be denied absent palpable error requiring a different result.
MCR 2.119(F).
Motion Page Limits. MCR 2.119(A)(2) provides that “the combined length of any
motion and brief, or of a response and brief, may not exceed 20 pages double
spaced, exclusive of attachments and exhibits.” The court rule does not indicate
appropriate sanctions for violating its requirements. Plaintiff’s response and brief
should not have been stricken for exceeding the prescribed page limits and doing
so “misconstrued the mechanics of motion practice as a procedural tightrope upon
which a litigant must balance carefully.” Gering v Anderson Villas, LLC,
(Unpublished, May 13, 2008). Factors that must be considered before taking action
that has the effect of dismissal as a sanction: (1) whether the violation was wilful or
accidental; (2) the party’s history of refusing to comply with previous court orders;
(3) the prejudice to the opposing party; (4) whether there exists a history of
deliberate delay; (5) the degree of compliance with other parts of the court’s orders;
(6) attempts to cure the defect; and (7) whether a lesser sanction would better serve
99
the interests of justice. Vicencio v Jaime Ramirez, MD, PC, 211 Mich App 501, 507;
536 NW2d 280 (1995). Smith v Globe Life Ins Co, 460 Mich 446, 455; 597 NW2d
28 (1999). The rules must be followed, but they must be thought of as guides and
standards to achieving justice, not the end of justice. Higgins v Henry Ford Hosp,
384 Mich 633, 637; 186 NW2d 337 (1971). People v Grove, 455 Mich 439,
469-470, n 36; 566 NW2d 547 (1997).
B.
Motions Filed as First Responsive Pleading
Motion for Change of Venue. A motion for change of venue must be filed on or
before the Answer to a Complaint. The court may not change venue except by
motion. Bursley v Fuksa, 164 Mich App 772, 417 NW2d 602 (1987). An action in
an improper county may remain there absent a timely motion. Pietrangelo v Burns
Clinic Medical Center, 179 Mich App 302, 445 NW2d 194 (1989). Anthony v
Forgrave, 126 Mich App 489, 337 NW2d 546 (1983). MCR 2.221. MCL 600.1651.
Motion to Set Aside Default. A default may be entered if a defendant fails to
timely respond to a Complaint. MCR 2.603(D)(3). MCR 2.612. To avoid a judgment,
a motion to set aside the default must be brought. MCR 2.603(D)(1) provides for a
motion to set aside a default where good cause is shown, and an affidavit of
meritorious defense is filed setting forth a valid defense. The existence of a
meritorious defense is not “good cause.” There must be a showing of both a
meritorious defense, and independent “good cause” such as an irregularity in the
proceedings, reasonable excuse, or manifest injustice or the judgment may stand.
MCR 2.603(D). The good cause and meritorious defense elements of a motion must
be considered separately. Zaiter v Riverfront Complex, Ltd, 463 Mich 544, 553 n 9;
620 Nw22d 646 (2001). Good cause includes: 1) a substantial defect or irregularity
in proceedings upon which the default is based, 2) a reasonable excuse for failure
to comply with the legal requirements creating the default, or 3) some other showing
of manifest injustice. Huggins v MIC Gen’l Ins Corp, 228 Mich App 84, 87, 578
NW2d 326 (1998). Barclay v Crown Bldg & Dev, Inc, 241 Mich App 639, 617 NW2d
373 (2000). A trial court may abuse its discretion denying a motion to set aside a
default where manifest injustice would result. H&L Heating Co. v Bryn Mawr
Apartments Ltd., 97 Mich App 496, 296 NW2d 354 (1980). The strength of the
defense asserted affects the good cause showing that is required from the party in
default. If a party states a meritorious defense that would be absolute if proven, a
lesser showing of ‘good cause’ is required to prevent manifest injustice. AlkenZiegler, Inc v Waterbury Headers Corp, 461 Mich 219; 600 NW2d 638 (1999).
Absent a lack of jurisdiction, a motion to set aside a default “shall be granted only
if good cause is shown and an affidavit of facts showing a meritorious defense is
filed.” MCR 2.603(D)(1). A party establishes good cause either by showing (1) a
procedural irregularity or defect or (2) a reasonable excuse for not complying with
the requirements upon which the default is based. Barclay v Crown Building & Dev,
Inc, 241 Mich App 639, 653; 617 NW2d 373 (2000). A defendant failing to answer
due to a defective Affidavit of Merit may properly be defaulted. A motion for
reconsideration of setting aside a default is proper if evidence is presented that
seriously calls into question the factual allegations contained in the affidavit of
meritorious defense. Michigan Bank v Reynaert, Inc, 165 Mich App 630, 646; 419
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NW2d 439 (1988). Where there is both good cause and a meritorious defense, a
trial court’s refusal to set aside a default judgment is an abuse of discretion. Smith
v Trojan, LLC (Unpublished, April 12, 2005).
C.
Discovery and Procedural Motions
Motion for More Specific Statement. Sometimes pleadings are too vague to
properly provide notice of the claim to be defended against. A court may, upon
motion, require a more specific pleading to be filed. Decisions by the court
regarding the sufficiency of pleadings are discretionary and will only be reversed for
abuse of discretion. A defendant is not required to move for a more definite
statement before seeking summary judgment. Weymers v Khera, 454 Mich 639,
654 (1997). Ben P. Fyke & Sons v Gunter, 390 Mich 649, 658 (1992). Hill v
Freeman, 117 Mich App 788, 324 NW2d 504 (1982).
Motion to Amend Pleadings. An initial pleading may be amended as of course
without a motion within 14 days of filing. MCR 2.118(1). Thereafter, a motion is
required. Amendments to pleadings should be freely granted when justice requires.
MCR 2.118(2). The Court must specifically state why it is denying an amendment.
Parties should be afforded great latitude in amending their pleadings although doing
so must be weighed against the interest in the speedy resolution of disputes. Jager
v Nationwide Truck Brokers, Inc, 252 Mich App 464, 487; 652 NW2d 503 (2002),
overruled on other grounds in Elezovic v Ford Motor Co, 472 Mich 408 (2005). A
motion to amend may be denied for undue delay, bad faith, repeated failure to cure
deficiencies in pleadings, undue prejudice to the opposing party, or futility. The
Court may find prejudice where a party seeks to add claims after discovery is
closed, just before trial, or where the opposing party had no reasonable notice of
the claim or theory. Weymers v Khera, 454 Mich 658-60 (1997). Ben P. Fyke &
Sons v Gunter, 390 Mich 649, 656 (1973). Affirmative defenses may also be added
by amendment where they become known under the same general rule. Dunmore
v Babao, 149 Mich App 140 (1986). Moorhouse v Ambassador Ins. Co., 147 Mich
App 412 (1985). Terhaar v Hoekwater, 182 Mich App 747 (1990). Gordin v William
Beaumont Hospital, 180 Mich App 48 (1989). Gardner v Stodgel, 175 Mich App 241
(1989). Davis v Chrysler Corp., 151 Mich App 463, 473-474 (1986). Welke v Kuzilla,
140 Mich App 658 (1985). Coffey v State Farm Mutual, 183 Mich App 723 (1990).
Motion to Compel Discovery. If a party fails to provide discovery, the Court has
discretion to order any sanctions that are just, including dismissal, where a party
fails to provide discovery or timely file a witness list. The circumstances must be
considered and justify the severity of a sanction imposed. Considerations include
whether the violation was wilful or accidental, whether there has been a history of
refusal to comply with discovery requests, prejudice to the moving party, and
whether notice existed as to the information not provided are relevant
considerations. If such factors are not present, striking pleadings or witnesses may
be an abuse of discretion. Dean v Tucker, 182 Mich App 27, 32-33 (1990).
Laudenslager v Pendell, 215 Mich App 167, 171 (1996).
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Motion for Security for Costs. MCR 2.109 allows a party to seek security for
costs. A bond for securing costs and fees may be required whenever there is a
substantial reason to do so. A tenuous legal theory which cannot be dismissed, but
which appears groundless, or unwarranted, is such a reason. The amount may be
based upon the court’s experience. Farleigh v Local 1251, 199 Mich App 631, 634
(1993). Dunn v Emergency Physicians Medical Group, 189 Mich App 519, 522, 473
NW2d 762 (1991). A bond may be excused if the plaintiff proves indigence. MCR
2.109(C)(1). West v Roberts, 214 Mich App 252, 256 (1995) rev’d, 454 Mich 877,
562 NW2d 199 (1997).
Motion for Reconsideration. MCR 2.119(F) provides that a motion for rehearing
or reconsideration of the decision on a motion must be served and filed not later
than 21 days after entry of an order deciding the motion. No response may be filed,
and there is no oral argument unless the court otherwise directs. The court is
allowed discretion but a motion for rehearing or reconsideration which merely
presents the same issues ruled on by the court, either expressly or by reasonable
implication, will not be granted. The moving party must demonstrate a palpable error
by which the court and the parties have been misled and show that a different
disposition of the motion must result from correction of the error. MCR 2.119(F)(3).
Woods v SLB Property Management, LLC, 277 Mich App 622, 629; 750 NW2d 228
(2008). A motion for reconsideration, which rests on evidence which could have
been presented earlier, is properly be denied. Churchman v Rickerson, 240 Mich
App 223, 233; 611 NW2d 333 (2000). A ruling on a motion for reconsideration is
reviewed for an abuse of discretion. An abuse of discretion occurs when the
decision results in an outcome falling outside the range of principled outcomes.
Corporan v Henton, 282 Mich App 599, 605; 766 NW2d 903 (2009).
D.
Motions for Summary Disposition
Motions for Summary Disposition Generally. MCR 2.116(B)(2) and MCR
2.116(D)(3) provide that a motion for summary disposition may be brought at any
time. Yee v Shiawasee Co Bd of Comm’rs, 251 Mich App 379, 392 n 16; 651 NW2d
756 (2002). However, a motion for summary disposition is generally premature if
granted before discovery is complete on a disputed issue. Nevertheless, when it is
unlikely that additional discovery will support a nonmoving party’s position, summary
disposition may be sought. Dimondale v Grable, 240 Mich App 553, 567, 618 NW2d
23 (2000). Prysak v R L Polk Co, 193 Mich App 1, 11, 483 NW2d 629 (1992). A
party opposing summary disposition on the ground that discovery is incomplete
must assert that a dispute exists and support the allegation with some independent
evidence. Davis v Detroit, 269 Mich App 376, 379- 380; 711 NW2d 462 (2006).
However, enforcing a scheduling order with a summary disposition deadline is not
an abuse of discretion. EDI Holdings LLC v Lear Corp, 469 Mich 1021; 678 NW2d
440 (2004). MCR 2.401. A court may refuse to hear a motion for summary
disposition which was untimely under the court’s scheduling order as MCR
2.401(B)(2)(a)(ii) supercedes MCR 2.116. MCR 2.401(B)(2)(a)(ii) states that a trial
court shall, at any time that would facilitate the progress of the case, “establish
times for events the court deems appropriate, including” the “filing of motions.”
Kemerko Clawson LLC v RXIV Inc, 269 Mich App 347, 350; 711 NW2d 801 (2006).
102
Phillips v George Dass, (Unpublished, September 19, 2006). A trial court’s decision
to rule on a motion for summary disposition is reviewed for an abuse of discretion.
EDI v Lear, 469 Mich 1021; 678 NW2d 440 (2004). People v Grove, 455 Mich 439,
464; 566 NW2d 547 (1997). Facts outside of the record are generally not
considered, so evidence relied upon must be placed in the record at the time
judgment is entered. MCR 7.203. MCR 2.302(H)(3). Ward v Frank’s Nursery and
Crafts, 186 Mich App 120; 463 NW2d 442 (1990). Wiand v Wiand, 178 Mich App
137, 143; 443 NW2d 464 (1989).
MCR 2.116(C)(7) Summary Disposition Standard. MCR 2.116(C)(7) provides
that summary disposition is appropriate where the complaint fails to state cause of
action. A motion for summary disposition under subsection MCR 2.116(C)(7) does
not require any supportive material and the opposing party need not reply with
supportive material. Maiden v Rozwood, 461 Mich 109, 119, 597 NW2d 817 (1999).
Bases for summary disposition under MCR 2.116(C)(7) include laws or rights that
defeats the claim including governmental immunity, release, or the statute of
limitations. A defendant who files a motion for summary disposition under MCR
2.116(C)(7) may, but is not required to, file supportive material such as affidavits,
depositions, admissions, or other documentary evidence. If no documentation is
submitted, the court reviews the complaint, accepting all well-pleaded allegations
as true and construing them in a light most favorable to the plaintiff. Turner v Mercy
Hospitals & Health Services of Detroit, 210 Mich App 345, 348; 533 NW2d 365
(1995). Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). The court
accepts the complaint allegations as true unless contradicted by affidavits,
depositions, admissions, or other documentary evidence submitted by the parties.
Willett v Waterford Charter Twp, 271 Mich App 38, 45; 718 NW2d 386 (2006). If
documentation is submitted, the court must consider it. MCR 2.116(G)(5). If the
pleadings or other documentary evidence reveal no genuine issues of material fact,
the court must decide as a matter of law whether the claim is barred. Holmes v
Michigan Capital Medical Center, 242 Mich App 703, 706; 620 NW2d 319 (2000).
MCR 2.116(C)(8) Summary Disposition Standard. A motion for summary
disposition under MCR 2.116(C)(8) tests the legal sufficiency of the complaint.
Dolan v Continental Airlines/Continental Express, 454 Mich 373, 380; 563 NW2d 23
(1997). All well-plead factual allegations are accepted as true and construed in a
light most favorable to the Plaintiff. A motion under MCR 2.116(C)(8) may be
granted only where the claims alleged “are so clearly unenforceable as a matter of
law that no factual development could possibly justify recovery.” Wade v Dep’t of
Corrections, 439 Mich 158, 162-163; 483 NW2d 26 (1992). The motion may not be
supported with documentary evidence. The trial court must only rely on the
pleadings pursuant to MCR 2.116(G)(5). Patterson v Kleiman, 447 Mich 429, 432;
526 NW2d 879 (1994). The mere statement of conclusions, unsupported by
allegations of fact, will not state a cause of action. ETT Ambulance Service Corp v
Rockford Ambulance, Inc, 204 Mich App 392, 395; 516 NW2d 498 (1994).
MCR 2.116(C)(10) Summary Disposition Standard. A motion for summary
disposition under MCR 2.116(C)(10) tests the factual support for a claim. The court
must consider the pleadings, affidavits, depositions, admissions, and other
103
documentary evidence submitted by the parties. MCR 2.116(G)(5). Summary
disposition is appropriate when there is no issue of material fact and the moving
party is entitled to judgment as a matter of law. A court must consider the affidavits,
pleadings, depositions, admissions, and other documentary evidence submitted by
the parties in a light most favorable to the nonmoving party. Wilson v Alpena Co Rd
Comm, 474 Mich 161, 166; 713 NW2d 717 (2006). Clerc v Chippewa Co War Mem
Hosp, 267 Mich App 597, 601; 705 NW2d 703 (2005), remanded in part 477 Mich
1067 (2007). An opponent must produce evidence to show a material dispute exists.
General denials, unsworn statements and hearsay do not create a dispute. The
Court is not permitted to assess credibility or decide facts in deciding the motion.
Evidence must be admissible under the rules of evidence. Smith v Globe Life Ins
Co, 460 Mich 446, 455-456 n 2; 597 NW2d 28 (1999). Babula v Robertson, 212
Mich App 45, 48; 536 NW2d 834 (1995). Paul v Lee, 455 Mich 204 (1997). Skinner
v Square D Co., 445 Mich 153, 160-62 (1994). Penner v Seaway Hospital, 169 Mich
App 502, 427 NW2d 584 (1988). Tyler v Field, 185 Mich App 386, 460 NW2d 337
(1990). Quinto v Cross & Peters Co, 451 Mich 358, 547 NW2d 314 (1996). Maiden
v Rozwood, 461 Mich 109, 119, 597 NW2d 817 (1999).
Responding to Motions for Summary Disposition. MCR 2.116(G)(1)(a)(ii)
requires a response to a motion for summary disposition be filed seven days before
the hearing. Where a party fails to timely respond as required, a response and
supporting evidence may be excluded from consideration. A trial court does not
abuse its discretion when it refuses to consider an untimely response to a motion
under (C)(10). Prussing v General Motors Corp, 403 Mich 366, 369-370; 269 NW2d
181 (1978). Smith v Globe Life Ins Co, 460 Mich 446, 455; 597 NW2d 28 (1999).
Issues of Fact Cannot Be Created by Contradictory Testimony. A party may
not raise an issue of fact by submitting an affidavit that contradicts prior clear and
unequivocal testimony. A party may not create a genuine issue of fact by submitting
an affidavit that contradicts prior actions. Statements of fact made in a “‘clear,
intelligent, unequivocal’ manner” conclusively bind a party absent “any explanation
or modification, or of a showing of mistake or improvidence.” Barlow v John
Crane-Houdaille, Inc, 191 Mich App 244, 250; 477 NW2d 133 (1991). Aetna
Casualty & Surety Co v Ralph Wilson Plastics Co, 202 Mich App 540, 548; 509
NW2d 520 (1993). Kaufman & Payton, PC v Nikkila, 200 Mich App 250, 256, 503
NW2d 728 (1993). Stefan v White, 76 Mich App 654, 660 (1977). MacDonald v
Barbarotto, 161 Mich App 542, 548 (1987). Mitan v Neiman Marcus, 240 Mich App
679, 682-683, 613 NW2d 415 (2000). Downer v Detroit Receiving Hosp, 191 Mich
App 232, 233-234, 477 NW2d 146 (1991). Gamet v Jenks, 38 Mich App 719, 197
NW2d 160 (1972). Peterfish v Frantz, 168 Mich App 43, 54-55, 424 NW2d 25
(1988). Dykes v William Beaumont Hospital, 246 Mich App 471, 622 NW2d 440
(2001). However, contradictions between statements and testimony which is not
clear or unequivocal may be explained. Palazzola v Karmazin Products Corp, 223
Mich App 141, 154-155; 565 NW2d 868 (1997). Giusti v Mt Clemens Gen’l Hosp,
(Unpublished, December 2, 2003).
Motion to Dismiss for Lack of Expert. In a claim with complex issues beyond the
knowledge of lay persons, if plaintiff fails to produce expert testimony by the close
104
of discovery, the claim is subject to summary disposition on motion. LaCourse v
Gupta, 181 Mich App 293; 448 NW2d 827 (1989), lv den 434 Mich 920 (1990).
Carlton v St. John Hospital, 182 Mich App 166; 451 NW2d 543 (1989). Sargent v
Eckhouse, 171 Mich App 703; 430 NW2d 763 (1988). Marchlewicz v Stanton, 50
Mich App 344; 213 NW2d 317 (1973). Waatti v Marquette General Hospital, 122
Mich App 44; 329 NW2d 526 (1982).
E.
Pre Trial Motions
Motions in Limine. Motions in Limine are brought before trial to prevent attempts
to introduce evidence which is either not in dispute, or which is inadmissible due to
irrelevance, prejudice or other grounds. Inadmissible evidence with a tendency to
prejudice should be sought to be precluded in advance. The court rules do not
specifically provide for motions in limine, but the courts have inherent discretion to
decide preliminary evidentiary questions. MRE 104. Lapasinskas v Quick, 17 Mich
App 733; 170 NW2d 318 (1969). A motion in limine is often used to exclude
potential inflammatory evidence prior to trial. Burke v Angis, Inc, 143 Mich App 683,
688 (1985). The insured status of a defendant and irrelevant, salacious or improper
activities of a party or witness are often the subjects of such a motion. Should the
motion be granted, a sanction may be ordered in advance for violation of the Court’s
ruling. It is often reversible error to submit to a jury admitted issues not in dispute.
Richardson v Coddington, 45 Mich 338, 7 NW 903 (1881). Anderson v Lavell, 285
Mich 194 (1938). Holbert v Staniak, 359 Mich 283, 102 NW2d 186 (1960). MRE
402. MRE 403. M Civ JI 17.01.
Motion to Recuse Judge.
MCR 2.003(B) states that a judge may be disqualified
if the judge cannot impartially hear a case due to personal bias or prejudice for or
against a party or attorney or the judge individually or as a fiduciary, or the judge’s
spouse, parent or child, or any other member of the judge’s family household has
a more than minimal economic or other interest in the matter in controversy that
could be substantially affected by the proceeding. A motion to transfer the case
must be made within fourteen days of discovery of the alleged bias or interest in a
proceeding. Generally, personal bias will have its origin in events or information
from outside the judicial proceeding, but an unfavorable predisposition toward a
party that flows from the proceedings may qualify. Cain v Dep’t of Corrections, 451
Mich 470, 495, 548 NW2d 210 (1996). Judicial rulings alone almost never constitute
valid basis for a bias or partiality motion. Opinions formed by the judge on the basis
of facts introduced or events occurring in the course of judicial proceedings do not
constitute a basis for a bias or partiality motion a deep-seated favoritism or
antagonism is shown. Cain v Dep’t of Corrections, 451 Mich 470; 548 NW2d 210
(1996). Liteky v United States, 510 US 540; 114 S Ct 1147, 1155, 127 L Ed 2d 474
(1994). Armstrong v Ypsilanti Twp, 248 Mich App 573, 596; 40 NW2d 321 (2001).
Motion for Directed Verdict. After the plaintiff finishes introducing evidence, the
defense may challenge the sufficiency of plaintiff’s proofs by asking for a directed
verdict. A motion for a directed verdict is required before bringing a motion for
judgment notwithstanding the verdict. A directed verdict is appropriate only when
no factual question exists upon which reasonable minds may differ, and the law
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requires judgment for the defense. All doubts are resolved against the moving
party. Zsigo v Hurley Medical Ctr, 475 Mich 215, 220-221; 716 NW2d 220 (2006).
Meagher v Wayne State Univ, 222 Mich App 700, 708; 565 NW2d 401 (1997).
Cacevic v Simplimatic Engineering Co (On Remand), 248 Mich App 670, 679-680;
645 NW2d 287 (2001). A motion for a directed verdict should be granted only if the
evidence fails to establish a claim as a matter of law. Central Cartage Co v Fewless,
232 Mich App 517, 524; 591 NW2d 422 (1998). Sniecinski v Blue Cross & Blue
Shield of Michigan, 469 Mich 124, 131; 666 NW2d 186 (2003). Where a plaintiff
fails to offer required expert testimony, or establish a reasonable question of fact
on a necessary element of a claim, a directed verdict is appropriate. Gillman v
Lloyd, 172 Mich App 563, 432 NW2d 356 (1988). Muilenberg v Upjohn Co., 115
Mich App 316, 320 NW2d 358 (1982). LaCourse v Gupta, 181 Mich App 293, 448
NW2d 827 (1989). Carlton v St. John Hospital, 182 Mich App 166, 451 NW2d 543
(1989). Lewis v LeGrow, 258 Mich App 175, 192; 670 NW2d 675 (2003).
Motion for Mistrial. If improper conduct occurs at trial, counsel may move for a
mistrial outside the presence of the jury. The grant or denial of the motion is in the
discretion of the court. McCarthy v Belcher, 128 Mich App 344, 347 (1983).
Anderson v Harry’s Army Surplus, 117 Mich App 601, 615 (1982). Benmark v
Steffen, 374 Mich 155, 163-4 (1965). If no motion for mistrial has been made, any
right to appeal as to the improper conduct may be waived unless the error was
incurable by court instruction. Koepel v St. Joseph Hospital, 381 Mich 440, 442-3
(1968). Reetz v Kinsman Marine Transit Co., 416 Mich 97, 101-2 (1982).
Entry of Orders & Judgments. MCR 2.603(1) requires all judgments and orders
to be in writing, signed by the Court and dated with the date signed. Orders may
be presented at the time the relief is granted, or at the time all parties approve the
form of the order. The effective date is the date it is signed, not the date it is
entered. The signing and entry of an order are two different actions, but MCR
2.602(A)(2) now provides that the date of signing an order or judgment is the date
of its entry. Moriarity v Shields, 260 Mich App 566, 572-573; 678 NW2d 642 (2004).
People v McBride, 204 Mich App 678, 683; 516 NW2d 148 (1994). 3 Dean &
Longhofer, Michigan Court Rules Practice, § 2602.3, p 298.
Entry of Orders Under the “Seven Day” Rule. Under MCR 2.602(B)(3) an order
may be submitted to the court for entry in seven days unless an objection is filed.
The rule requires a party who objects to the order to prepare specific objections, an
alternative proposed order, and notice a hearing to settle the order. A party who
does not do so may find the proposed order entered in spite of the objections.
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VIII.
Case Evaluation, Offers of Judgment
& Alternative Dispute Resolution
_______________________
A.
B.
C.
Case Evaluation
Offers to Stipulate to Entry of Judgment
Alternative Dispute Resolution
___________________________
A.
Case Evaluation
Case Evaluation Generally. Under MCR 2.403, all civil claims are subject to case
evaluation. Case evaluation is designed to promote settlement. Case evaluation is
conducted after the close of discovery by a three attorney panel consisting of a
plaintiff attorney, a defense attorney, and a “neutral” attorney. The panel is provided
with written summaries from the parties. A hearing is then conducted where the
parties are allowed to present a statement of up to 15 minutes. The panel may
inquire about settlement negotiations and insurance. After the hearing, a proposed
settlement figure is determined and each party may accept or reject the award as
against any opposing party. Under MCR 2.403(K)(4) If the panel finds an action
“frivolous,” the case evaluation summaries may be submitted to the Court within
fourteen days for a hearing. If the Court agrees that the action is frivolous, security
in the amount of $5,000.00 must be posted. MCR 2.403(K)(5), relating to medical
malpractice claims, requires a specific finding as to whether or not there was a
breach of the applicable standard of care, or a statement that reasonable minds
could differ as to a breach of the standard of care.
Acceptance or Rejection of the Case Evaluation Award. Under MCR 2.403(L)
each party files a written acceptance or rejection of the evaluation within 28 days.
A party must either accept or reject the evaluation in its entirety as to opposing
parties. The failure to file a written response within 28 days constitutes a rejection.
There is no disclosure of a party's decision until the expiration of the 28-day period.
If all or part of the evaluation of the case evaluation panel is rejected, the action
proceeds to trial. MCR 2.403(L)(3)(b) provides that where there are multiple parties,
each party has the option of accepting all of the awards or accepting some and
rejecting others. As to any particular opposing party, the party must either accept
or reject the evaluation in its entirety. A party who accepts all awards may
specifically indicate that he or she intends the acceptance to be effective only if all
opposing parties accept, and/or the opposing parties accept as to specified coparties. If a party makes a limited acceptance under subrule (L)(3)(b) and some of
the opposing parties accept and others reject, for the purposes of the cost
provisions of subrule (O) the party who made the limited acceptance is deemed to
have rejected as to those opposing parties who accept. This rule does not permit
an acceptance to be limited or conditioned upon a co-defendant’s decision to accept
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or reject. Fritz v Rader, (Unpublished, November 30, 2004). MCR 2.403(L)(3)(c)
provides that a party who makes a limited acceptance rejects as to unspecified
opposing parties who accepted, but not as to the specified party which rejected the
award. Baldasan v National Precast, Inc, 451 Mich 894, 550 NW2d 525 (1996).
Dykes v William Beaumont Hospital, 246 Mich App 471, 633 NW2d 440 (2001).
Changing an Acceptance or Rejection of a Case Evaluation Award. Generally,
a party cannot set aside or change the decision as to a case evaluation award.
Where, however, there has been a mistake which can be corroborated, under MCR
2.612(C)(1)(f) a court has the discretion to allow a change. Castillo v Alexander, 171
Mich App 679, 430 NW2d 751 (1988). Small v Zeff, 155 Mich App 288, 399 NW2d
63 (1986). State Farm Mutual Automobile Ins Co v Galen, 199 Mich App 274
(1993). Coolman v D B Snider, Inc, 129 Mich App 233, 239; 341 NW2d 484 (1983).
Effect of All Parties Accepting an Award. Under MCR 2.403(M)(1), if all parties
accept the award, a judgment in that amount will be entered. Alternatively, if the
award is paid within 28 days after notification, the court shall dismiss the action with
prejudice. The judgment or dismissal disposes of all claims in the action, including
all fees, costs, and interest to the date it is entered. When a case is submitted to
case evaluation, it is the civil action that is submitted, not certain claims within the
civil action. A party cannot subsequently appeal an adverse summary disposition
on any count in the action or continue to pursue any claims related to the action.
Case evaluations bring the full force of res judicata to bear on subsequent
adjudications. Cases decided before CAM have been specifically overruled to the
extent that those cases allowed parties to show that certain claims were excepted
from a case evaluation. CAM Constr v Lake Edgewood Condo Ass’n, 465 Mich 549,
550, 557; 640 NW2d 256 (2002).
Rejecting Party's Liability for Actual Costs. Under MCR 2.403(O)(1), if a party
rejects an evaluation and the action proceeds to a verdict, the rejecting party must
pay the opposing party's actual costs unless the adjusted verdict is 10% more
favorable to the rejecting party than the case evaluation. A "verdict" includes a
judgment entered after a motion made after the rejection of the award. A “verdict”
is adjusted by adding costs and interest on the amount of the verdict from the filing
of the complaint to the date of the case evaluation, and, if applicable, reducing
future damages under MCL 600.6306. If the case evaluation award was zero, a
verdict finding that a defendant is not liable to the plaintiff shall be deemed more
favorable to the defendant. In cases with multiple parties, to determine whether the
verdict is more favorable than the case evaluation, the court considers only the
amount of the evaluation and verdict as to those parties, rather than the aggregate
evaluation or verdict. However, costs may not be imposed on a plaintiff who obtains
an aggregate verdict more favorable to the plaintiff than the aggregate evaluation.
Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008). If the "verdict" is the result
of a motion under MCR 2.403(O)(2)(c), the court may, in the interest of justice,
refuse to award actual costs. Harbour v Correctional Medical Services, Inc, 266
Mich App 452, 465; 702 NW2d 671 (2005). For more information on the award of
case evaluation sanctions, see Chapter XIV on Post Trial Proceedings.
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Case Evaluation Not Disclosed in Non-Jury Trial. MCR 2.403(N)(4) provides
that a Judge is not to be informed of the case evaluation in a non-jury case. When
a party intentionally reveals the amount to the court in a non-jury trial, the trial court
must declare a mistrial and reassign the case. Angela Bennett, v Medical Evaluation
Specialists, 244 Mich App 227, 624 NW2d 492 (2000).
B.
Offers to Stipulate to Entry of Judgment
Offers to Stipulate to Entry of Judgment Generally. MCR 2.405 provides that
at any time more than 28 days before trial, an Offer of Judgment may be made by
any party. An offer requires no particular form, but it must be in writing and be an
unconditional offer to stipulate to judgment in a sum certain. Central Cartage Co
v Fewless, 232 Mich App 517, 530-533, 591 NW2d 422 (1998). Hessel v Hessel,
168 Mich App 390, 395, 424 NW2d 59 (1988). Thereafter, the offeree can either
accept or counteroffer within 21 days. An average of an offer and counter-offer
creates an “average offer” to determine which party may recover the actual costs
of trial. Rejecting or ignoring the offer makes an offeree liable for costs and
reasonable attorney fees unless the offeree does materially better than the average
offer at trial. Where opposing parties both make offers, but neither makes a timely
“counteroffer,” both are potentially liable for costs. Beveridge v Shorecrest Lanes,
204 Mich App 466, 470 (1994). Actual costs may also be awarded after a successful
motion for summary disposition. If an offer is made less than 42 days before trial,
no counter offer need be made to obtain costs. An offer of judgment under MCR
2.405 promotes settlement, but is different from settlement negotiations. Hanley v
Mazda Motor Corp, 239 Mich App 596, 609 NW2d 203 (2000). Telephone
conversations and letters containing additional conditions do not affect an offer of
judgment unless they are made in strict conformity with MCR 2.405(C)(1). Best
Financial Corporation v Lake States Insurance Company, 245 Mich App 383, 628
NW2d 76 (2001).
Offer of Judgment Sanctions. See Chapter XIV on Post Trial Proceedings and
Motions for further information on Offer of Judgment sanctions.
C.
Alternative Dispute Resolution
MCR 2.410 Alternative Dispute Resolution. Alternative dispute resolution, or
“mediation” may be ordered in all civil cases. The court may order the attendance
of the parties, representatives of lienholders, representatives of insurance carriers,
or other persons to attend or be immediately available. The failure to attend as
directed by the court, may constitute a default to which MCR 2.603 is applicable or
a ground for dismissal under MCR 2.504(B) unless a default or dismissal would
cause manifest injustice, or the failure to attend was not due to the culpable
negligence. ADR is not binding. A party seeking to set aside or modify an order for
ADR must do so within 14 days of entry of the order.
MCR 2.411 Mediation Hearings. Mediation is where a neutral third party facilitates
communication between parties, assists in identifying issues, and helps to explore
and promote a mutually acceptable settlement. A mediator has no decision-making
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power. If the court refers a case to mediation under MCR 2.411, a list of mediators
is provided. However, the parties may stipulate to any mediator, even one not
“qualified” under MCR 2.411(F). If the parties cannot agree to a mediator, the court
shall appoint one. A mediator must promptly disclose any potential basis for
disqualification. Grounds for disqualification of a mediator are the same as for a
judge under MCR 2.003. Mediation continues until a settlement is reached, it is
determined that settlement is not likely, or all parties agree to end it. Additional
sessions may be held. Within 7 days after a mediation, the mediator shall advise
the court whether a settlement was reached, and whether further proceedings are
contemplated. If the case is settled, the attorneys shall conclude the case within 21
days. Statements or documents used in mediation may not be used in any other
proceedings and communications are confidential. The mediator’s fee is paid by the
parties on a pro-rata basis unless otherwise agreed or ordered.
Qualification of Mediators. Mediators are qualified for up to five years and must:
1) complete a training program in mediation, 2) have a law degree or graduate
degree in conflict resolution, or 3) 40 hours of mediation experience over two years.
New mediators must observe two mediations, and then conduct one under
supervision before being fully qualified.
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IX.
Expert & Opinion Evidence
______________________________
A.
B.
C.
Qualifications of Medical Standard of Care Experts
General Expert Qualification Requirements
Other Expert Rules
________________________________
Expert Testimony Generally Required. In a medical malpractice case, expert
testimony must be presented that establishes both the applicable standard of care,
and that it was more likely than not that the defendant breached that standard.
Wilson v Stilwill, 411 Mich 587, 309 NW2d 898 (1981). Wiley v Henry Ford Cottage
Hosp, 257 Mich App 488; 668 NW2d 402 (2003). The admission of expert testimony
is governed by MRE 702 and MCL 600.2955. Chapin v A & L Parts, Inc, 274 Mich
App 122, 127; 732 NW2d 578 (2007). Michigan generally embraces a broad view
of who may qualify as an expert. Mulholland v DEC Int'l, 432 Mich 395, 403-405;
443 NW2d 340 (1989). Gaps or limitations in an expert's knowledge or qualifications
are relevant to the weight to be given to the testimony, not to the testimony's
admissibility. McPeak v McPeak, 233 Mich App 483, 493; 593 NW2d 180 (1999).
A trial court’s decision concerning the qualifications of an expert in a medical
malpractice case is reviewed for an abuse of discretion. Gonzalez v St John Hosp
& Med Ctr (On Reconsideration), 275 Mich App 290, 294; 739 NW2d 392 (2007).
An abuse of discretion occurs only when the trial court’s decision falls outside the
range of reasonable and principled outcomes. Maldonado v Ford Motor Co, 476
Mich 372, 388; 719 NW2d 809 (2006).
A.
Qualifications of Medical Standard of Care Experts
MCL 600.2912a Specialist Standard of Care & Available Facilities. The
statutory standards of care in MCL 600.2912a are often referred to as a “local”
standard of care for general practitioners and a “national” standard for specialists.
However, MCL 600.2912a(b) provides that the “national” standard of care for
specialist is applied “in light of the facilities available in the community or other
facilities reasonably available under the circumstances.” Thus, the standard of care
for specialists also refers to the community. Cox v Board of Hospital Managers for
the City of Flint, 467 Mich 1, 651 NW2d 356 (2002).
MCL 600.2169(2) & Medical Malpractice Experts. MCL 600.2169(2) provides: In
determining the qualifications of an expert witness in an action alleging medical
malpractice, the court shall, at a minimum, evaluate all of the following: (a) The
educational and professional training of the expert witness. (b) The area of
specialization of the expert witness. (c) The length of time the expert witness has
been engaged in the active clinical practice or instruction of the health profession
or the specialty. (d) The relevancy of the expert witness’s testimony.
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MCL 600.2169(1) & the Same Specialty Requirement. As to specialists, MCL
600.2169(1)(a) requires that standard of care experts specialize in the same field
as the defendant, and if the defendant is board certified, they must also be board
certified . The expert must also have devoted a majority of professional time in the
year preceding the date of the alleged malpractice to practicing, or teaching in an
accredited program in the same specialty as the defendant. MCL 600.2169(1)(b).
McDougall v Eliuk, 456 Mich 905, 577 NW2d 691 (1999), rev’g McDougall v Eliuk,
218 Mich App 501 (1996). Kiefer v Markley, 283 Mich App 555, 769 NW2d
271(2009). Reeves v Carson City Hosp (On Remand), 274 Mich App 622, 630; 736
NW2d 284 (2007). Halloran v Bhan, 470 Mich 572, 577; 683 NW2d 129 (2004).
Board certifications that are not relevant to the alleged malpractice do not need to
match. Mcguire v Wasvary (Unpublished, January 25, 2005). Tate v Detroit
Receiving Hosp, 249 Mich App 212, 218-219, 642 NW2d 346 (2002). Vandenburg
v Vandenburg, 231 Mich App 497, 502, 586 NW2d 570 (1998). An expert witness
who only practices 20-24 hours per week is not qualified to sign an affidavit of merit
under MCL 600.2169. Giusti v Mt Clemens Gen’l Hosp (Unpublished, December 2,
2003). An expert’s admission that he was part time cannot be contradicted by a later
affidavit. Seeing residents in a clinical setting is not a substitute for formally
instructing students under MCL 600.2169(1)(b)(ii). The testimony of an ob/gyn is not
admissible as to the standard of care for a nurse midwife. McElhaney v
Harper-Hutzel Hosp, 269 Mich App 488; 711 NW2d 795 (2006). As nurse midwives
are separately licensed professionals in nursing, with specialty certification in the
practice of nurse midwifery, an obstetrician/gynecologist may not testify as to their
standard of care. A general surgeon cannot testify as to a colo-rectal surgeon. A
proposed standard of care expert must “match the one most relevant specialty” of
the defendant. Trevino v.Turfah, (Unpublished, September 19, 2006). In Jilek v.
Stockson, M.D., __ Mich __ (December 21, 2011), the Michigan Supreme Court
reversed the Court of Appeals and held that the appropriate standard of care was
“family practice” because the defendant physician was board-certified solely in
family medicine, even though he was practicing urgent care medicine at the time of
the alleged malpractice. MCL 600.2912a properly allows the jury to consider that
standard of care in light of the facilities available to the defendant physician — an
urgent care center, not an emergency medical facility. Furthermore, Woodard v
Custer’s 476 Mich 545, 566 (2006), “one-most-relevant-specialty” test was
inappropriate to determine that Dr. Stockson was practicing emergency medicine,
and thus that she should have been held to the standard of care of an emergency
medicine specialist. Dr. Stockson was a “specialist,” in Family Practice medicine.
MCL 600.2169(1) & Same Sub Specialty Requirement. MCL 600.2169 only
refers to the specialty of experts, not their sub-specialties. If a defendant physician
has a sub-specialty, an expert witness must specialize in the same sub-specialty as
the defendant practiced at the time of the occurrence. If the defendant has a
certificate of special qualifications, an expert witness must have the same certificate
of special qualifications. Under MCL 600.2169(1)(a) only the most relevant specialty
or sub-specialty, and only the one most relevant board certificate or certificate of
special qualifications must match. An expert need only match “the specialty
engaged in by the defendant physician during the course of the alleged malpractice,
and, if the defendant physician is board certified in that specialty, the plaintiff’s
112
expert must also be board certified in that specialty.” Woodard v Custer, 476 Mich
545, 557-8; 719 NW2d 842 (2006). Where the defendant was board certified in
family medicine but the alleged malpractice occurred while practicing emergency
medicine, the physician was a “specialist” in emergency medicine. Reeves v Carson
City Hosp (On Remand), 274 Mich App 622; 736 NW2d 284 (2007). Although the
defendant was not board-certified in the area of alleged malpractice, practicing
within a specialty during the alleged malpractice requires the plaintiff’s expert to be
a specialist or a board-certified specialist in that area of the specialty. Gonzalez v
St John Hosp & Medical Ctr, 275 Mich App 290, 302-303; 739 NW2d 392 (2007).
The fact that a defendant physician has a specialty that plaintiff’s expert lacks does
not automatically disqualify the expert from properly signing an affidavit of merit.
Hoffman v Barrett, __ Mich App __; --- NW2d --- (June 3, 2010). The relevant
inquiry is not a specialty license, but whether defendant physician was engaged in
a specialty during the alleged malpractice. A licensed dentist is not prohibited from
performing orthodontics and defendant physician was a “specialist” in orthodontics
for purposes of MCL 600.2169(1). As plaintiffs’ expert was not a specialist in
orthodontics, he was not qualified to offer expert testimony regarding the
appropriate standard of care in orthodontics. Davis v James A. David, D.D.S.
(Unpublished, May 18, 2010).
MCL 600.2169(1)(c) & General Practitioner Expert Requirements.
MCL
600.2169(1)(c) requires if the party against whom or on whose behalf the testimony
is offered is a general practitioner, the expert witness, during the year immediately
preceding the date of the alleged malpractice, devoted a majority of professional
time to either the active clinical practice as a general practitioner or the instruction
of students in an accredited health professional school, accredited residency or
clinical research program in the same health profession as the defendant. “General
Practitioner” is not defined, but its plain and ordinary meaning is “a medical
practitioner whose practice is not limited to any specific branch of medicine.” A
“general practitioner” who limits his or her practice to a particular area does not
meet the definition of a general practitioner and is not qualified to offer expert
testimony against a true general practitioner. Decker v Kevin Flood, DDS, 248 Mich
App 75, 638 NW2d 163 (2001).
Objections to the Qualifications of Experts. The statutory expert qualifications
rules cannot be waived. Greathouse v Rhodes, 465 Mich 885; 636 NW2d 138
(2001). Objections are proper as to an experts’ testimony on the standard of care
if made during or immediately before the testimony. Tobin v Providence Hospital,
244 Mich App 626, 624 NW2d 548 (2001). Where an expert witness otherwise
fulfills the requirements of both MRE 702 and MCL 600.2169, any gaps in expertise
are generally matters of the weight to be accorded to the testimony, not its
admissibility. Where an expert was otherwise qualified, it was an abuse of discretion
to disqualify him because he never performed the procedure at issue. Hallman v
Dela Cruz (Unpublished, August 11, 2005).
B.
General Expert Qualification Requirements
113
Common Law Expert Qualifications Generally. In cases not within the common
knowledge and experience of lay persons, expert testimony is required for a jury to
decide whether conduct was below the applicable standard of care. Paul v Lee,
455 Mich 204 (1997). Heintz v Akbar, 161 Mich App 533, 411 NW2d 736 (1987).
Dibata v Kistler, 145 Mich App 65, 362 NW2d 891 (1985). If the trial court
determines that recognized scientific, technical, or other specialized knowledge will
assist the trier of fact to understand the evidence or to determine a fact in issue, an
expert may testify by opinion or otherwise. In re Noecker, 472 Mich 1, 11; 691
NW2d 440 (2005). Stitt v Holland Abundant Life Fellowship (On Remand), 243 Mich
App 461, 468; 624 NW2d 427 (2000). An expert must be qualified prior to the
admission of testimony. An expert may be qualified by knowledge, skill, experience,
training, or education. Ordinarily, disagreement with an expert’s interpretation of
facts involves the weight of the testimony, not its admissibility. Surman v Surman,
277 Mich App 287, 309-310; 745 NW2d 802 (2007). Siirila v Barrios, 398 Mich 576,
591 (1976). Thomson v DAIIE, 133 Mich App 375, 350 NW2d 261 (1984). Bishop
v St. John Hospital, 140 Mich App 720, 364 NW2d 290 (1984). Ziemi v U.P.
Orthopedic Associates, 173 Mich App 326, 433 NW2d 363 (1988). The proponent
of expert testimony has the burden of establishing that the expert is qualified under
MRE 702, MCL 600.2169 and MCL 600.2955. Clerc v Chippewa Co War Mem
Hosp, 477 Mich 1067, 1067; 729 NW2d 221 (2007). A trial court has discretion
regarding whether to accept the qualifications of an expert. Bahr v Harper Grace
Hosp, 448 Mich 135, 141, 528 NW2d 170 (1995). Expert testimony is admissible if
a witness is qualified as an expert in a pertinent field, the testimony will assist the
trier of fact to understand the evidence or to determine a fact in issue; and the
testimony is derived from recognized scientific, technical, or other specialized
knowledge. People v Beckley, 434 Mich 691, 710-719; 456 NW2d 391 (1990).
Knowledge of the Standard of Care Required. Under the common law, an expert
need not specialize in the same field as the defendant, but the expert must
expressly state a knowledge of the applicable standard of care and have sufficient
training, skill, expertise, or knowledge to provide competent testimony. Bahr v
Harper-Grace Hospitals, 448 Mich 135, 141 (1995). Carlton v St. John Hospital, 182
Mich App 166, 451 NW2d 543 (1989). MCL 600.2169(3) does not limit the power
of the trial court to disqualify an expert witness on grounds other than the
qualifications set forth in that section. An expert is properly disqualified under MRE
702(3), regardless of meeting the qualifications under MCL 600.2169 where the
expert haa no experience in the procedure performed by the defendant. Meyers v
Ciullo, (Unpublished, December 10, 1999). Howard v Zamorano, (Unpublished,
October 14, 2004).
Nonphysician Standard of Care. The standard of care for non-physicians is that
of a non-specialist in the same or similar community. Bahr v Harper-Grace
Hospitals, 448 Mich 135, 138 (1995). MCL 600.2912a, which sets forth the
applicable standards of care for general practitioners and specialists in
medical-malpractice actions, does not establish a statutory standard of care for
nurses. The terms “general practitioner” and “specialist” apply only to physicians.
Therefore, the applicable standard of care is the skill and care ordinarily possessed
and exercised by practitioners of the profession in the same or similar localities. Cox
114
v Flint Board of Hospital Managers, 467 Mich 1, 19-20; 651 NW2d 356 (2002).
Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 492; 668 NW2d 402 (2003).
The terms “specialist” and “general practitioner” apply only to physicians, and
therefore §§ 2961(1)(a) and (c) are not applicable in determining the qualifications
of an occupational therapist. Brown v Hayes, 270 Mich App 491, 499-500; 716
NW2d 13 (2006), rev’d in part on other grounds 477 Mich 966 (2006). Statutes
pertaining to physician’s assistants, MCL 333.17060 – MCL 333.17082 do not
recognize any board certifications, so a physician’s assistant cannot be a specialist.
A physician’s assistant is subject to a common-law standard of care. Wolford v
Duncan, 279 Mich App 631 (July 17, 2008).
MRE 702 Admission of Expert Testimony. MRE 702 provides that, if the Court
determines that recognized scientific, or other specialized knowledge, will assist the
trier of fact. A witness qualified by knowledge, skill, experience or training may
testify to a material issue by opinion or otherwise if (1) the testimony is based on
sufficient facts or data, (2) the testimony is the product of reliable principles and
methods, and (3) the witness has applied the principles and methods reliably to the
facts of the case. Expert opinions are not admissible unless they are found reliable
by the trial court. Amorello v Monsanto Corp., 186 Mich App 324, 331-2, 463 NW2d
487 (1990). Kelley v Murray, 176 Mich App 74, 79, 438 NW2d 882 (1989). MRE
702 “requires trial judges to act as gatekeepers who must exclude unreliable expert
testimony. Daubert v Merrell Dow Pharmaceuticals, Inc, 509 US 579; 113 S Ct
2786; 125 L Ed 2d 469 (1993), and Kumho Tire Co, Ltd v Carmichael, 526 US 137;
119 S Ct 1167; 143 L Ed 2d 238 (1999).” The gatekeeper role applies to all stages
of expert analysis. it is not sufficient to simply point to an expert’s experience and
background to argue that the expert’s opinion is reliable and, therefore, admissible.
Edry v Adelman, D.O. __ Mich __; --- NW2d --- (July 22, 2010). MRE 702
mandates a searching inquiry, not just of the data underlying expert testimony, but
also of the manner in which the expert interprets and extrapolates from those data.
It is insufficient for the expert opinion to rest on legitimate data. The proponent must
also show that any opinion based on the data expresses conclusions reached
through reliable principles and methodology. Gilbert v DaimlerChrysler Corp, 470
Mich 749, 782; 685 NW2d 391 (2004). General Electric Co v Joiner, 522 US 136;
118 S Ct 512; 139 L Ed 2d 508 (1997). The circuit court must also consider the
factors listed in MCL 600.2955(1). Clerc v Chippewa Co War Mem Hosp, 477 Mich
1067, 1068; 729 NW2d 221 (2007). Not all statutory factors need favor the expert’s
opinion, but the opinion must be rationally derived from a sound foundation. An
evidentiary hearing may be required as a threshold inquiry to ensure that the expert
opinions are not “masquerading” as science. Chapin v A & L Parts, Inc, 274 Mich
App 122, 137-139; 732 NW2d 578 (2007). Bennett v. Sinai Hospital of Greater
Detroit, (Unpublished, December 2, 2010). If the methodology and principles used
are sound, the evidence will be admissible even if the opinions are novel. Nelson
v American Sterilizer Co (On Remand), 223 Mich App 485, 491-492; 566 NW2d 671
(1997). A party may waive any error by failing to call the court’s gate keeping
obligation to its attention. The opposing party does not need to first introduce
evidence that the expert testimony is “novel.” Craig v Oakwood Hosp, 471 Mich 67,
80-82; 684 NW2d 296 (2004). Expert testimony is essential to establish a causal
link between the alleged negligence and the alleged injury in a medical malpractice
case. Dykes v William Beaumont Hosp, 246 Mich App 471, 478; 633 NW2d 440
115
(2001); Thomas v McPherson Community Health Ctr, 155 Mich App 700, 705; 400
NW2d 629 (1986)). Although an expert was board-certified in neurology, he
exclusively practiced emergency medicine and was not an expert in the treatment
and prognosis of brain tumors. Therefore, excluding his testimony was proper and
lacking expert testimony on causation, plaintiff’s claims were properly dismissed.
Hall v. Mercy Memorial Hospital, (Unpublished, December 7, 2010)
MRE 703 Bases of Expert Opinion Testimony. The facts or data upon which an
expert bases an opinion or inference shall be in evidence. This does not restrict the
discretion of the court to receive expert opinion testimony subject to the condition
that the factual bases of the opinion be admitted in evidence hereafter. In the past,
expert opinions could be based on facts perceived by or made known to the expert
before the hearing. Kohn v Ford Motor Co., 151 Mich App 300, 390 NW2d 709
(1986). Thomas v McPherson Community Health Center, 155 Mich App 700, 400
NW2d 629 (1986). Higgins v Detroit Osteopathic Hospital, 154 Mich App 752, 398
NW2d 520 (1986). Beattie v Firnschild, 152 Mich App 785, 394 NW2d 107 (1986).
MCL 600.2955 Requirements for the Reliability of Expert Opinions. MCL
600.2955 codifies the Davis-Frye analysis, and provides that a party offering novel
scientific evidence must demonstrate that it has gained general acceptance within
the scientific community. Under MCL 600.2955(1), the Court must consider:
a)
b)
c)
d)
e)
f)
g)
Whether the opinion and basis have been tested and replicated.
Whether the opinion and basis have been subjected to peer review.
The existence of generally accepted standards governing the
opinion and its basis and if they are consistent with those standards.
The known or potential error rate of the opinion and its basis.
The degree to which the opinion and its basis are generally accepted
within the relevant expert community.
Whether the basis for the opinion is reliable and whether experts in
would rely on the same basis to reach the opinion proffered.
Whether the opinion or methodology is relied upon by experts
outside of litigation.
The court shall consider all of the factors listed in MCL 600.2955(1). If applicable,
the proponent must also satisfy the requirement of MCL 600.2955(2) to show that
a novel methodology or form of scientific evidence has achieved general scientific
acceptance among impartial and disinterested experts in the field. It is an abuse of
discretion to strike an expert witness and grant summary disposition without
conducting a more searching inquiry as a gatekeeper for reliable evidence under
MRE 702 or holding a Davis-Frye evidentiary hearing to determine whether
plaintiff’s experts’ testimony regarding the back staging of cancer had achieved
general scientific acceptance. Clerc v Chippewa Co War Mem Hosp, 267 Mich App
597, 601-602; 705 NW2d 703 (2005), remanded in part, 477 Mich 1067 (2007).
When conducting the Davis-Frye analysis, the trial court must focus on the method,
process, or basis underlying an expert’s conclusions and whether it is generally
accepted and recognized, and not on the ultimate conclusion of the expert. Craig
v Oakwood Hosp, 471 Mich 67, 70-71; 684 NW2d 296 (2004). Anton v State Farm
Mut Automobile Ins Co, 238 Mich app 673, 678-9; 607 NW2d 123 (1999). Brabant
v St. John River District Hospital (Unpublished, December 20, 2005), Pittman v
116
Hutzel-Harper Hospital (Unpublished, January 12, 2006, Estate of Cochrum v
William Beaumont Hosp. (Unpublished, February 16, 2006).
C.
Other Expert Rules
Expert Testimony on Issues of Law or Negligence is Improper. A witness is not
permitted to tell the jury how to decide a case. A witness is prohibited from opining
on the issue of a party's negligence or non-negligence. A witness may not give their
own opinion or interpretation of the facts because that invades the province of the
jury. Carson, Fischer, Potts & Hyman v Hyman, 220 Mich App 116, 122-123; 559
NW2d 54 (1996). People v Drossart, 99 Mich App 66, 79-80; 297 NW2d 863 (1980).
Expert witness testimony on issues of law or the meaning of a legal term is
improper because it is the exclusive responsibility of the trial court to interpret the
applicable law. In re Portus, 142 Mich App 799, 802; 371 NW2d 871 (1985). Lentini
v Urbancic, 262 Mich App 552; 686 NW2d 510 (2004) (Lentini I). Opinions as to
legal conclusions, such as negligence or standard of care, are not admissible.
Temborius v Slatkin, 157 Mich App 587, 602, 403 NW2d 821 (1986). Troyanowski
v Village of Kent City, 175 Mich App 217, 225, 437 NW2d 266 (1988). Mitchell v
Steward Oldford & Sons, Inc, 163 Mich App 622, 629-630; 415 NW2d 224 (1987).
Experts from Different Schools of Training. An expert may testify concerning
standards from a different school (allopathic, osteopathic, etc.) if the expert
expressly establishes familiarity with the standards of that school. Soto v Lapeer
County, 169 Mich App 518, 426 NW2d 409 (1988). Frazier v Hurd, 380 Mich 291,
297, 157 NW2d 249 (1968). Ferguson v Gonyaw, 64 Mich App 685, 696 (1975).
Siirila v Barrios, 398 Mich 576, 592 (1976). Whether a physician was trained as an
osteopath or allopath was not relevant when evaluation whether the expert was
qualified as being in the same specialty as the defendant. With respect to the
relevance of any variation in educational credentials, MCL 600.2169(1)(a) requires
only an identity of board certifications between the expert and the defendant. Raab
v Joyce, D.O. (Unpublished, June 28, 2005).
Personal Standards are Irrelevant to the Standard of Care. It is improper for
an expert to testify about the appropriate standard of care on the basis of what he
or she would have personally done. May v William Beaumont Hosp, 180 Mich App
728, 761; 448 NW2d 497 (1989). Compton v Pass, (Unpublished March 23, 2010).
Expert Opinions Implicating Standard of Care for Different Specialty. Where
compliance with the standard of care in orthopedic surgery was at issue, testimony
offered by a radiologist that the pertinent x-ray findings showed “nothing of concern”
implicated the orthopedic surgery standard of care, and was therefore improper
under MCL 600.2169(1). Welch v Elie G. Khoury, (Unpublished, January 28, 2010).
Experts Cannot be Paid by Contingent Fee.
contingency-fee basis. MCL 600.2169(4).
An expert may not testify on a
Limitation on Number of Expert Witnesses. Parties are precluded from calling
more than three experts on any issue, including the standard of care, unless the
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Court permits. The court may also limit witnesses to avoid undue delay, expense
or cumulative testimony. MCL 600.2164(2).
Time to Disclose Experts. Although formal witness lists are often not required,
the failure to identify witnesses where ordered, or in response to discovery requests,
may preclude calling the witness at trial. LaCourse v Gupta, 181 Mich App 293, 448
NW2d 827 (1989). Herrera v Levine, 176 Mich App 350, 439 NW2d 378 (1989). An
expert witness must be named in a timely manner. Moy v Detroit Receiving
Hospital, 169 Mich App 600, 426 NW2d 722 (1988). Sergeant v Eckhouse, 171
Mich App 703, 430 NW2d 763 (1988). Whether to allow a party to add an expert
witness is within the discretion of the trial court. Tisbury v Armstrong, 194 Mich App
19, 20; 486 NW2d 51 (1992).
Expert Testimony From Defendant. Required expert testimony and admissions
regarding the standard of care may be elicited from a defendant, but the possibility
of obtaining an admission from the defendant that the standard of care was
breached will not avoid summary judgment. Rice v Jaskolski, 412 Mich 206, 212,
313 NW2d 893 (1981). Belobradich v Sarnsethsiri, 131 Mich App 241, 249 (1983).
Carlton v St. John Hospital, 182 Mich App 166, 451 NW2d 543 (1989).
Expert Testimony from Defendant & Non-Retained Experts. A treating
physician may provide expert testimony for any party without breaching a fiduciary
obligation. Melynchenko v Clay, 152 Mich App 193, 197 (1986). However, experts
have a proprietary interest in their opinions and generally cannot be compelled to
provide expert opinions without their consent. Lozano v Detroit Medical Center
(Unpublished, December 2, 2008). Klabunde v Stanley, 384 Mich 276, 181 NW2d
918 (1970). Evans v Dickstein, 2005 WL 1160621 (May 17, 2005), lv den 474 Mich
973 (2005). A party may be compelled to answer opinion questions. Rice v
Jaskolski, 412 Mich 206, 212, 313 NW2d 893 (1981). Carlton v St. John Hospital,
182 Mich App 166, 451 NW2d 543 (1989). A plaintiff may establish the standard of
care by the admission of a defendant. Porter v Henry Ford Hospital, 181 Mich App
706, 710, 450 NW2d 37 (1989).
Unfavorable Retained Experts. Neither party is bound by the unfavorable opinion
of a retained expert and the party retaining such expert shall not be disclosed since
it is not pertinent. Kissel v Nelson Packing Co., 87 Mich App 1,5, 273 NW2d 102
(1978). If, however, the retaining party attacks the credibility of the expert, the
retaining party may be disclosed. Laudenslager v Covert, 163 Mich App 484, 490
(1987). Discovery is not permitted as to non-examining experts who have been
retained, but who are not expected to testify at trial unless exceptional
circumstances exist or manifest injustice would result. MCR 2.302(B)(4)(b).
Expert Testimony Inconsistent with Facts. Expert testimony is objectionable
when based on assumptions contrary to the established facts. Expert testimony
inconsistent with an eye witness is not admissible simply by disparaging the witness’
observation. For experts to give an opinion, there must be facts in evidence which
support the conclusion. Skinner v Square D Co, 445 Mich 153, 173, 516 NW2d 475
(1994). An expert’s opinion is objectionable if based on assumptions inconsistent
118
with the established facts. Mulholland v DEC Int’l Corp, 432 Mich 395, 411, 414,
443 NW2d 340 (1989). Badalamenti v William Beaumont Hospital-Troy, 237 Mich
App 278, 602 NW2d 854 (1999). Green v Jerome-Duncan Ford, Inc, 195 Mich App
493, 498-9, 491 NW2d 243, (1992). Thornhill v Detroit, 142 Mich App 656, 658, 369
NW2d 871 (1985).
Expert Testimony on Irrelevant Standards of Care Not Allowed. Evidence of
a breach of the standard of care unrelated to the duty at issue is generally
inadmissible as such evidence merely tends to establish a tendency to engage in
negligent conduct in general and may prejudicially serve to establish negligence in
the specific act at issue. The probative value of such evidence is generally thought
to be far outweighed by its prejudicial effect under MRE 403. Berwald v Kasal, 102
Mich App 269, 273 (1980). McCormick, Evidence (2d ed), Section 189, p. 446. 1
Wigmore, Evidence (3d ed), Section 199, pp 677-681.
Lay Opinion Testimony. Lay opinion testimony may be permitted when rationally
based on perception and helpful to a clear understanding of a fact at issue. MRE
701. McPeak v McPeak (On Remand), 233 Mich App 483, 493, 593 NW2d 180
(1999). Mitchell v Steward Oldford & Sons, Inc, 163 Mich App 622, 629-630; 415
NW2d 224 (1987). However, where the jury is capable of evaluating the issues,
expert testimony is not proper. Gallagher v Parshall 97 Mich App 654 (1980).
Mitchell v Stewart 163 Mich App 622, Washburn v Lucas (1964). The fact that a lay
opinion may embrace an “ultimate issue” does not make it inadmissible. People v
Williams (After Remand), 198 Mich App 537, 542, 499 NW2d 404 (1993). Nonexpert opinion testimony is limited to opinions and inferences rationally based on the
witness’ own physical perceptions. Expert testimony is inadmissible “when it merely
deals with a proposition that is not beyond the ken of common knowledge.” Gilbert
v DaimlerChrysler Corp, 470 Mich 749, 790; 685 NW2d 391 (2004).
Prior Lawsuits of Experts Generally Not Admissible. Testimony regarding an
expert’s being a defendant in another case may not be used to impeach the witness’
credibility. Unproven accusations of malpractice cannot be used to attack a
physician’s knowledge and credibility as they are analogous to unproven charges
of criminal activity. Heschelman v Lombardi, 183 Mich App 72, 85; 454 NW2d 603
(1990). Wischmeyer v Schanz, 449 Mich 469, 481, 536 NW2d 760 (1995)Persichini
v Beaumont Hospital, 238 Mich App 626, 639; 607 NW2d 100 (1999).
Expert Testimony on Credibility Inadmissible. Expert testimony is inadmissible
to opine on the credibility of witnesses. People v Dobek, 274 Mich App 58, 71; 732
NW2d 546 (2007). Moreover, a witness cannot be used as a “human lie detector”
to provide “unwarranted reinforcement” to the truth or falsity of the allegations.
People v Izzo, 90 Mich App 727, 730; 282 NW2d 10 (1979).
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120
X.
Admission of Evidence
_____________________
A.
B.
C.
D.
Witness Testimony
Admission of Documents
Admission of Statutes, Regulations, Policies & Procedures
Selected Rules of Evidence
______________________________
A.
Witness Testimony
Witness Testimony Generally. A trial court decision to admit or exclude the
evidence of a witness is reviewed under an abuse of discretion standard. Ellsworth
v Hotel Corp of America, 236 Mich App 185, 188, 600 NW2d 129 (1999).
Adjournments Due to Unavailable Witness. MCR 2.503(C) provides that a
motion to adjourn a proceeding because of the unavailability of a witness or
evidence must be made as soon as possible after ascertaining the facts. An
adjournment may be granted on the ground of unavailability of a witness or
evidence only if the court finds that the evidence is material and that diligent efforts
have been made to produce the witness or evidence.
Hostile Witnesses & Adverse Experts. The Adverse Witness Statute, MCL
600.2161, provides that a party who calls the opposite party, or any person who at
the time of the occurrence was an employee or agent of the opposite party, may
cross-examine the witness as if the witness had been called by the opposite party.
Linsell v Applied Handling, Inc, 266 Mich App 1, 26; 697 NW2d 913 (2005). A
retained expert witness is not a party, employee, or agent of a party, so the statute
does not apply. Barnett v Hidalgo, 478 Mich 151, 163 n 7; 732 NW2d 472 (2007).
Lozano v Detroit Medical Center (Unpublished, December 2, 2008). Witnesses who
are not party opponents or agents or employees of a party opponent cannot be
called under the adverse witness statute. In re Forfeiture of $19,250, 209 Mich App
20, 28; 530 NW2d 759 (1995). Davis v Wayne Co Sheriff, 201 Mich App 572, 587;
507 NW2d 751 (1993). Thompson v Essex Wire Co, 27 Mich App 516, 530; 183
NW2d 818 (1970). An expert witness cannot be compelled to provide testify
involuntarily. Klabunde v Stanley, 384 Mich 276, 282; 181 NW2d 918 (1970). It is
within the discretion of the court to allow leading a witness. MRE 611. Phillips v
Mazda Motor Mfg., 204 Mich App 401, 415-6 (1994). Johnson v Union Carbide, 169
Mich 651 (1912). Abner Wolf, Inc. v Walch, 21 Mich App 483, 489 (1970).
Witness Refusal to Answer. A refusal to answer questions cannot make a prima
facie case by inference unless the court has ordered sanctions for the failure to
provide evidence. MCR 2.313. Brenner v Kolk, 226 Mich App 149, 161, 573 NW2d
65 (1997).Copeland v Family Dental Center, (Unpublished, August 23, 2000).
121
Use of Collateral Matters to Impeach. Testimony as to the bias or interest of a
witness is admissible on cross-examination and, if denied, can be proven by a
rebuttal witness if a proper foundation is laid. Swift Electric Light Co. v Grant, 90
Mich 469, 475, 51 NW 539 (1892). Foster v Krause, 187 Mich 630, 632, 153 NW
1066 (1915). Where a witness is cross-examined on collateral matters, the
cross-examiner cannot ask other witnesses whether the answers were truthful. A
witness cannot, without risk of contradiction, pretend to be impartial and
disinterested. Geary v People, 22 Mich 220, 222-223 (1871). Refusing to allow a
party to present documentary evidence demonstrating bias may be an abuse of
discretion. Powell v St. John Hospital, 241 Mich App 64, 614 NW2d 666 (2000).
Surveillance & “Day in the Life” Videos. A “day in the life” videotape depicting
daily activity is not inadmissible as an out-of-court statement and hearsay. MRE
801(a). Strach v St. John Hospital, 160 Mich App 252 (1987). It is not an abuse of
discretion to allow an unlisted investigator to be called at trial to authenticate a
surveillance videotape. The surveillance material did not create a trial by surprise
because the plaintiff engaged in the various activities and already had personal
knowledge of same. Even if plaintiff’s attorney was surprised, plaintiff was
necessarily aware of his own actions and capabilities. Butt v Giammariner, 173 Mich
App 319, 321-22 (1988). Garlick v Great Lakes Steel Corp, (Unpublished, June 8,
2001). Lopez v General Motors Corp, 224 Mich App 618, 638 (1997). Beard v
Horton, (Unpublished, November 4, 2010). However, it was within the court’s
discretion to disallow a surveillance videotape not disclosed as required under a
discovery order or request to produce. Lake v Bross, (Unpublished, April 21, 1998).
Laukkanen v Jason, (Unpublished, January 22, 2008).
Evidence of Abusive Relationships. Evidence of abuse is relevant to claims of
loss of society and relationship. A plaintiff may open the door to such issues when
testifying in support of a claim for loss of society and companionship. Colbert v
Primary Care Medical, P.C., 226 Mich App 99, 574 NW2d 36 (1997).
Settlement Negotiations. Under MRE 408, evidence of statements made relating
to, or offering or promising to provide or accept valuable consideration in
compromising or attempting to compromise a disputed claim are generally
inadmissible. This does not require the exclusion of otherwise admissible evidence
merely because it was presented in the course of negotiations, or when offered for
another purpose. 5 Callaghan’s Michigan Pleading and Practice, § 36.507. Thirlby
v Mandeloff, 352 Mich 3 501 (1958). Mediation evaluations may not be considered
in assessing damages. MCR 2.403(N)(2). Settlement proposals and mediation
evaluations may not be considered when computing additur under MCR 2.611(E).
Arnold v Darczy, 208 Mich App 638 (1995).
Insured Status of a Party Is Inadmissible. References to insurance coverage of
a party during voir dire or trial is presumptively improper. Phillips v Mazda Motor Mfg
(USA) Corp, 204 Mich App 401, 411, 516 NW2d 502 (1994). Generally, the
collateral source rule bars evidence of insurance to show mitigation of damages.
Nasser v Auto Club Ins Ass’n, 435 Mich 33, 58; 457 NW2d 637 (1990).
122
Exception to Exclusion of Evidence of Insurance. Evidence of insurance is
admissible to prove malingering or that insurance payments are the motivation to
not work. For this exception to apply, the facts must raise serious doubts as to the
extent of the injury actually suffered. The evidence should be admitted “only if it
appears to the trial judge from other evidence that there is a real possibility that
plaintiff was motivated by receipt of collateral source benefits to remain inactive as
long as he did.” Nasser v Auto Club Ins Ass’n, 435 Mich 33, 58; 457 NW2d 637
(1990). Blacha v Gagnon, 47 Mich App 168, 171; 209 NW2d 292 (1973). 22 Am Jur
2d, Damages, § 967, p 1004; 47 ALR 3d 234, 239-240.
B.
Admission of Documents
Proving the Contents of Writings. To prove the contents of a writing, the original
is required, except as provided by rule or statute. MRE 1002. MRE 1004 provides
that an original is not required if: 1) All originals are lost or have been destroyed, or
2) No original can be obtained by any available judicial process or procedure. MRE
1008 provides that when the admissibility of other evidence of contents of writings
depends upon the fulfillment of a condition of fact, the question is ordinarily for the
court to determine. When an issue is raised whether an asserted writing ever
existed, whether another writing, recording, or photograph is the original, or whether
other evidence correctly reflects the contents, the issue is for the trier of fact.
Adverse Inference from Missing Records & Medical Records. MCL 600.2146
provides that the lack of an entry regarding an act, transaction, occurrence, or event
in a writing or record so proved may be evidence that the act, transaction,
occurrence, or event did not take place. Evidence under the control of a party which
could have been produced but isn’t, may result in an inference that the evidence is
adverse, if no reasonable excuse for the failure to produce it is shown. M Civ JI
6.01(c). Botsford General Hosp v Citizens Ins Co, 195 Mich App 127, 144-145; 489
NW2d 137 (1992). The inference is not mandatory, and the fact finder is not
required to draw it. Brenner v Kolk, 226 Mich App 149, 155-156; 573 NW2d 65
(1997). An adverse inference instruction as to missing medical records is improper,
but under the certain circumstances, counsel may argue that missing medical
records existed. Siirila v Barrios, 398 Mich 576, 594-597, 248 NW2d 171 (1976).
Powell v St. John Hospital, 241 Mich App 64, 614 NW2d 666 (2000).
Admission of Expert Reports. Written communications between attorneys and
experts are not discoverable and are inadmissible absent showing of substantial
need or undue hardship. MCR 2.302(B)(3)(a).
Admission of Public Records & Autopsies. Generally, matters which a
government agency has a duty to report are not hearsay. Information in a public
autopsy is not privileged and is not exempt from disclosure under the Freedom of
Information Act. Swickard v Wayne Co Med Examiner, 438 Mich 536, 560-561, 475
NW2d 304 (1991). In re Green v St Clair Co Rd Comm, 175 Mich App 478, 489,
438 NW2d 630 (1989). Some government reports are not covered under the public
record hearsay exception and are inadmissible, including evaluative and
123
investigative reports. MRE 803(8). Dampier v Grace Hosp. Corp., et al. 233 Mich
App 714, 592 NW2d 809 (1999). People v Shipp, 175 Mich App 332, 339 (1989).
Admission of Death Certificates. A certified copy of a death certificate is
admissible evidence on the cause of death. MCL 333.2886. MRE 803(9). Greek v
Bassett, 112 Mich App 556, 562-5 (1982).
Admission of Reports Prepared for Litigation & IME’s. Reports prepared in
anticipation of litigation have been held not reliable enough for admission.
Statements as to the origin of a complaint made to a non-treating medical examiner
were not admissible as hearsay exceptions under MRE 803(4). People v Conn (On
Remand), 182 Mich App 13, 14 (1990). Exclusion of an independent medical
examiner’s report without the doctor’s testimony was discretionary. Beach v State
Farm, 216 Mich App 612, 621 (1996). Slayton v Michigan Host, 144 Mich App 535,
552-3 (1985). Mott v McDonald, (Unpublished, March 3, 1998).
Electronically Stored Information. MCR 2.313(E), provides in part that “a court
may not impose sanctions under these rules on a party for failing to provide
electronically stored information lost as a result of the routine, good-faith operation
of an electronic information system.”
C.
Admission of Statutes, Regulations, Policies & Procedures
Admission of Internal Policies & Procedures. Internal policies and procedures
may be relevant to the standard of care although they do not in and of themselves
set the standard of care. Practice guidelines, internal guidelines and policies should
be admitted as long as they are relevant to the applicable specialty’s standard of
care and to the injury alleged. A "violation of an internal policy or guideline is not
negligence per se." Estate of Jilek ex rel Jilek v Stockson, ___Mich
App___;___NW2d___(July 29, 2010) rev’d on other grounds in Jilek v. Stockson,
M.D., __ Mich __ (December 21, 2011). However, for years it has been the law that
varying a duty to the public based upon internal rules and procedures was against
public policy because it discouraged high standards and encouraged lower
standards. Wilson v Foote Memorial Hospital, 91 Mich App 90, 284 NW2d 126
(1979). Gallagher v Detroit-Macomb Hospital Association, 171 Mich App 761, 431
NW2d 90 (1988). Buczkowski v McKay, 441 Mich 96, 99 fn. 1, (1992). A railroad’s
internal rules were excluded where they “do not fix the obligations and liability of the
defendant.” Dixon v Grand Trunk Western R, 155 Mich 169, 173; 118 NW 946
(1908). A trolley company’s internal rule was properly excluded where it did not “add
to the defendant’s obligations to the public.” McKernan v Detroit Citizens Street-R
Co, 138 Mich 519; 101 NW 812 (1904).
Admission of Industry Customs. Industry customs may be relevant on the
standard of care, but do not set the standard of care. Flynn v Libkie, 101 Mich App
331; 300 NW2d 560 (1980). The customary practice of an industry is relevant to
determine whether the standard has been met, but does not determine the standard
of care. Marietta v. Cliffs Ridge, Inc., 385 Mich 364, 369-370, 189 NW2d 208
124
(1971). Texas and Pacific R. Co. v. Behymer (1903), 189 US 468, 470 (23 SCt 622,
623, 47 LEd 905).
Admission of External Regulatory Agency Rules. A violation of rules of an
external regulatory agency such as the JCAHO, may be admissible as evidence of
the duty owed. Zdrojewski v Murphy, 254 Mich App 50, 66; 657 NW2d 721 (2002).
Admission of Statutes & Regulations. State rules and regulations passed under
statutory authority are generally admissible as evidence of the standard of care.
Duckett v North Detroit General Hospital, 84 Mich App 426, 269 NW2d 626 (1978).
Kakligian v Henry Ford Hospital, 48 Mich App 325, 210 NW2d 463 (1973).
Gallagher v Detroit-Macomb Hospital Association, 171 Mich App 761, 765, 431
NW2d 90 (1988). Kakligian v Henry Ford Hosp, 48 Mich App 325, 332, 210 NW2d
463 (1973). But the American Osteopathic Association standards did not establish
liability absent expert testimony that they were the standard of care. Birmingham
v Vance, 204 Mich App 418, 421, 516 NW2d 95 (1994). Stage v Mt. Clemens
General Hospital, Inc., (Unpublished, November 26, 2002). MIOSHA or OSHA rules
do not establish statutory duties in negligence cases, but violations of MIOSHA
regulations may be evidence of negligence. Ghaffari v Turner Constr Co (On
Remand), 268 Mich App 460, 463; 708 NW2d 448 (2005). Zalut v Andersen and
Assoc, Inc, 186 Mich App 229, 235-237; 463 NW2d 236 (1990).
D.
Selected Rules of Evidence
MRE 201 Judicial Notice. The trial court is permitted to take judicial notice and
accept as determined facts in a proceeding matters which are “capable of accurate
and ready determination by resort to sources whose accuracy cannot reasonably
be questioned.” MRE 201(b)(2). Hetrick v Friedman, 237 Mich App 264, 269; 602
NW2d 603 (1999). A trial court may take judicial notice of court files and records.
Knowlton v Port Huron, 355 Mich 448, 452; 94 NW2d 824 (1959). Putnam v
Sezgin, (Unpublished, December 2, 2004).
MRE 402 Relevant Evidence & Prior Incidents. Evidence of prior accidents is
admissible to show defendant’s notice or knowledge of a defective or dangerous
condition providing it is established that there were similar conditions, reasonable
proximity in time, and there is no confusion of issues. MRE 401. MRE 402. Freed
v Simon, 370 Mich 473, 475, 122 NW2d 813 (1963). Maerz v United States Steel
Corp, 116 Mich App 710, 723, 323 NW2d 524 (1982).
MRE 403 Exclusion of Evidence for Prejudice. MRE 403 provides that relevant,
evidence may be excluded if its probative value is substantially outweighed by the
danger of unfair prejudice, confusion of the issues, or misleading the jury, or by
considerations of undue delay, waste of time, or needless presentation of
cumulative evidence. Bartlett v. Sinai Hosp, 149 Mich App 412, 416-417; 385 NW2d
801 (1986). Waknin v Chamberlain, 467 Mich 329, 334; 653 NW2d 176 (2002).
People v Dermartzex, 390 Mich 410 (1973). MRE 403 does not prohibit prejudicial
evidence per se, only evidence that is unfairly prejudicial. People v Crawford, 458
Mich 376, 398; 582 NW2d 785 (1998). People v Vasher, 449 Mich 494, 501; 537
NW2d 168 (1995). People v Vasher, 449 Mich 494, 501; 537 NW2d 168 (1995).
125
Evidence of a personal protection order (PPO) was proper to disprove plaintiff’s
claim that emotional distress resulted from the surgical complication where plaintiff
claimed mental anguish and loss of earnings and earning capacity as damages.
Schutz v Ingham Reg. Med. Ctr. (Unpublished, May 25, 2006). A trial court is best
able to determine the prejudicial effect of evidence by contemporaneously
assessing its presentation and effect. People v Bahoda, 448 Mich 261, 291; 531
NW2d 659 (1995). MRE 403 only precludes evidence that is unfairly prejudicial;
unfair prejudice exists when there is a danger that marginally probative evidence will
be given preemptive weight by a jury. Lewis v Legrow, 258 Mich App 175, 199; 670
NW2d 675 (2003).
MRE 404 Character Evidence to Prove Conduct. Character evidence is generally
inadmissible. Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case. People v VanderVliet, 444 Mich 52, 74; 508 NW2d 114
(1993). A “reputation” for certain conduct is inadmissible evidence of “character”
under MRE 404. McNabb v Green Real Estate, 62 Mich App 500 (1975). Lewis v
LeGrow, 258 Mich App 175, 208; 670 NW2d 675 (2003). People v VanderVliet, 444
Mich 52, 74; 508 NW2d 114 (1993), mod 445 Mich 1205; 520 NW2d 338 (1994).
Jenkins v William Beaumont Hospital, (Unpublished, December 19, 2006).
MRE 404(b)(1) Other Crimes, Wrongs, or Acts. MRE 404(b)(1) provides that
evidence of other crimes, wrongs, or acts is inadmissible to prove the character of
a person in order to show action in conformity therewith. Persichini v William
Beaumont Hosp., 238 Mich App 626, 607 NW2d 100 (1999). Such evidence may,
however, be admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, scheme, plan, or system in doing an act, knowledge, identity,
or absence of mistake or accident when the same is material, whether such other
crimes, wrongs, or acts are contemporaneous with, or prior or subsequent to the
conduct at issue in the case. Other acts are also admissible to prove a person’s
state of mind. People v Gilbert, 101 Mich App 459, 473; 300 NW2d 604 (1980).
People v Cramer, 97 Mich App 148, 157; 293 NW2d 744 (1980).
MRE 406 Habit or Routine. Where someone, or an industry, invariably performs
in a certain way, that habit or custom is admissible to prove that the same was done
on the occasion in question. MRE 406. Laszko v Cooper Industries, Inc., 114 Mich
App 253 (1982). Isolated incidents of failing to advise of the risks of surgery is not
evidence of a habit or routine. Cook v Rontal, 109 Mich App 220 (1981). MRE 401.
MRE 402. Freed v Simon, 370 Mich 473, 475, 122 NW2d 813 (1963).
MRE 407 Evidence of Subsequent Remedial Measures. MRE 407 generally
prohibits evidence of subsequent remedial measures which, if taken previously,
would have made an event less likely to occur. The rule does not require the
exclusion of evidence of subsequent measures when offered for another purpose
126
such as ownership, control, feasibility of precautionary measures, or impeachment.
A precautionary measure in place before the event in question may also be
excluded if the action was taken in response to an earlier event. Muilenberg v
Upjohn, 115 Mich App 316 (1982). The purpose of MRE 407 is to encourage safety
and introduction of such evidence to imply negligence may prejudice substantial
rights. MRE 103. Merrow v Bofferding, 458 Mich 617, 634, 581 NW2d 696 (1998).
Ellsworth v Hotel Corp of America, 236 Mich App 185, 189, 600 NW2d 129 (1999).
MRE 607 Impeachment of Witnesses. The credibility of a witness may be
attacked by any party, including the party calling the witness. Evidence showing bias
or prejudice of a witness is always relevant. People v Coleman, 210 Mich App 1, 8,
532 NW2d 885 (1995). Popp v Crittenton Hospital, 181 Mich App 662, 664, 449
NW2d 678 (1989). Even a party calling their own witness may attack the witness’
credibility. Untruthful testimony from a witness does not establish the opposite
proposition as true. MERC v Cafana Cleaners, Inc, 73 Mich App 752, 761, 252
NW2d 536 (1977), overruled other gr’ds, Kalamazoo City Education Ass’n v
Kalamazoo Public Schools, 406 Mich 579, 606, 281 NW2d 454 (1979). S C Gray,
Inc v Ford Motor Co, 92 Mich App 789, 805, 286 NW2d 34 (1979). Issues of
credibility are reserved for the jury. Moore v Detroit Entertainment, LLC, 279 Mich
App 195, 202; 755 NW2d 686 (2008).
MRE 608 Evidence of Character & Misconduct. MRE 608(a) provides that the
credibility of a witness may be attacked or supported by evidence in the form of
opinion or reputation, subject to the following limitations: (1) the evidence may only
refer to character for truthfulness or untruthfulness, and (2) evidence of truthful
character is admissible only after the character of the witness for truthfulness has
been attacked by opinion or reputation evidence or otherwise. Specific instances of
conduct may be inquired into concerning a witness’ character for truthfulness or
untruthfulness, or the character for truthfulness or untruthfulness of another witness
as to which character the witness being cross-examined has testified. MRE 608(b).
Persichini v William Beaumont Hosp, 238 Mich App 626, 632; 607 NW2d 100
(1999). MRE 608(a)(2) permits opinion testimony regarding character for
truthfulness only after the truthfulness of a witness has been attacked by opinion or
reputation evidence or otherwise. However, a lay witness testifying to plaintiff's
“integrity” after a surveillance video implyed that plaintiff was not being truthful
regarding his alleged injuries was improper. Ykimoff v Foote Mem Hosp, 285 Mich
App 80; 776 NW2d 114 (2009). Instances of conduct, other than convictions,
introduced for to attacking a witness’s credibility may not be proved by extrinsic
evidence. MRE 608(b).
MRE 609 Impeachment by Conviction of Crime. MRE 609 allows the admission
of prior criminal convictions of a party or witness which are ten years or less from
the date of conviction or release. MRE 609 permits admission of certain convictions,
particularly crimes that contain an element of dishonesty or false statement, for
impeachment purposes, whether the specific conviction followed a guilty plea, a
no-contest plea, or a not-guilty plea. A conviction for such purpose is not excluded
because the conviction resulted from a plea of no contest falling under MRE 410
(which purports to exclude evidence of a plea of no contest). The trial court may not
127
exclude evidence under MRE 609(b) or MRE 403 because of prejudicial effect
since, as a matter of law, prior convictions of crimes involving dishonesty or false
statement are more probative than prejudicial. People v Allen, 429 Mich 558,
593-594, 594 n 16; 420 NW2d 499 (1988). Shuler v Michigan Physicians Mutual
Liability Co, 260 Mich App 492; 679 NW2d 106 (2004). For a criminal record to be
admissible under MRE 404(b), as character evidence, it must: 1) be offered for a
proper purpose, 2) be relevant, and 3) its probative value must not be substantially
outweighed by its potential for unfair prejudice. People v Starr, 457 Mich 490, 496,
498; 577 NW2d 673 (1998). People v VanderVliet, 444 Mich 52, 74-75; 508 NW2d
114 (1993), mod 445 Mich 1205 (1994). People v Sabin (After Remand) 463 Mich
43, 63-66; 614 NW2d 888 (2000).
MRE 612 Documents to “Refresh” Recollection. MRE 612 provides guidelines
for allowing an opposing party access to materials used to refresh a witness’s
recollection. Documents used merely to refresh a recollection need not be
admissible as it is the witness’ testimony and not the document that is evidence.
A witness may refresh his or her recollection with any writing if it is shown that (1)
the witness’s present memory is inadequate, (2) the writing could refresh the
witness’s present memory, and (3) reference to the writing actually does refresh the
witness’s present memory. Moncrief v Detroit, 398 Mich 181, 190, 247 NW2d 783
(1976). Cameron v Blackman, 39 Mich 108, 109-110 (1878). Allowing a witness to
refresh their memory from a list someone else prepared was not error where the
witness then testified from memory. Robinson v Mulder, 81 Mich 75, 81-82, 45 NW
505 (1890). People v McNutt, 220 Mich 620, 622-623, 190 NW 750 (1922).
MRE 613 Prior Inconsistent Statements. Any witness may be discredited by prior
inconsistent statements, even where they deny any recollection, if they testify
differently at the time of trial. MRE 613. MRE 607. MRE 801(d)(1)(A). Smith v
People, 2 Mich 415, 417-18 (1852). Higdon v Kelley, 339 Mich 209, 217 (1954).
People v Herbert Brown 45 Mich App 505, 508 (1973). However, when a prior
inconsistent statement goes to a central issue in a case against another defendant,
it is improper to admit the hearsay statement. MRE 801. People v Stanaway, 446
Mich 643, 692-3, 521 NW2d 557 (1994).
MRE 707 Learned Treatises. A party may read from a learned treatise on crossexamination an opposing expert if that expert, another expert, or the Court by
judicial notice, establishes the text as authoritative. A medical journal or text which
is admitted by an expert to be “reliable,” may be used to impeach on cross
examination even if it is not expressly described as “authoritative.” however, the
treatise itself is not admissible. McCarty v Sisters of Mercy Health Care Corp., 176
Mich App 593, 440 NW2d 417 (1989). Jones v Bloom, 388 Mich 98, 118 (1972).
Heins v Detroit Osteopathic Hospital, 150 Mich App 641 (1986). Bivens v Detroit
Osteopathic Hospital, 77 Mich App 478 (1977). A party may not use MCL
600.2955(1), requiring general acceptance of the expert’s opinions in the scientific
community, as a basis to admit treatises. Greathouse v Rhodes, 242 Mich App 221,
231, 618 NW2d 106 (2000). Hilgendorf v St John Hospital & Medical Center Corp,
245 Mich App 670, 701, 630 NW2d 356 (2001).
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MRE 801 Hearsay. Hearsay is inadmissible except as delineated within the rules
of evidence. Hearsay is a statement, other than the one made by a declarant while
testifying at the trial or hearing, offered in evidence to prove the truth of the matter.
A “statement” is an oral or written assertion or nonverbal conduct if intended to be
an assertion. A statement is not hearsay if it is: a prior statement inconsistent with
the declarant’s testimony, or is consistent with the testimony and rebuts an express
or implied charge of recent fabrication. A statement is not hearsay if it is offered
against a party and is the party's own statement, or a statement that the party has
manifested a belief in its truth, a statement by a person authorized by the party to
make a statement on the subject, or a statement by the party's agent or servant,
or a statement by a coconspirator MRE 802.
MRE 801(d) Pleadings, Admissions & Prior Inconsistent Statements. A
statement is not hearsay if it is a prior inconsistent statement of witness given under
oath at a trial, hearing, or other proceeding, or in a deposition, or is an admission
by party opponent. An affidavit of merit is admissible at trial as substantive evidence
on the basis of MRE 801(d)(2)(B) and (C) and MRE 613 as admissions by a party
opponent, and impeachment evidence because they constitute prior inconsistent
statements of witnesses. Barnett v Hidalgo, 478 Mich 151, 165; 732 NW2d 472
(2007). Hunt v CHAD Enterprises, Inc, 183 Mich App 59, 63; 454 NW2d 188 (1990).
Statements in pleadings are admissible as admissions against interest, but are not
conclusive. Eisbrenner v. Stanley, 106 Mich App 357; 308 NW2d 209 (1981).
Guarantee Bond & Mortgage Co. v. Hilding, 246 Mich 334, 344; 224 NW2d 643
(1929). Holloway Const. Co. v. State, 44 Mich App 508, 533; 205 NW2d 575 (1973).
Pleadings from another action are generally admissible. Selph v. Evanoff, 28 Mich
App 201, 204; 184 NW2d 282 (1970). Refusing to allow a complaint in evidence
was not error where inflammatory language if often used which is more prejudicial
than probative. Pleadings such as a complaint are primarily to give notice and
usually lack the essential character of an admission. Larion v Detroit, 149 Mich App
402, 407; 386 NW2d 199 (1986). Tobin v Providence Hospital, 244 Mich App 626,
637-638, 624 NW2d 548 (2001). A party should not have to forego a claim at the
risk of having inconsistent allegations treated as admissions. Alternative pleadings
are an exception to the general rule permitting treating pleadings as admissions.
McCormick on Evidence (3d ed, 1984), § 265, pp 780-782.
MRE 801(d) Prior Consistent Statements. Prior consistent statements are not
hearsay if admitted to rebut claims of recent fabrication, fraud or other improper
conduct. MRE 801(d)(1)(B). A Plaintiff may not admit his or her prior statements
under MRE 803(5) without showing insufficient memory to permit accurate
testimony, or that the document was reviewed when made to assure accuracy.
People v Hoffman, 205 Mich App 1, 16, 518 NW2d 817 (1994). People v Kubasiak,
98 Mich App 529, 536-537, 296 NW2d 298 (1980).
MRE 803(1) Present Sense Impressions. Present sense impressions are
statements describing or explaining an event or condition made while a declarant
was perceiving it, or immediately thereafter. The availability of this exception relies
on the trustworthiness of the statement. For hearsay to be admissible under this
exception, three criteria must be met: “(1) the statement must provide an
explanation or description of the perceived event, (2) the declarant must personally
129
perceive the event, and (3) the explanation or description must be ‘substantially
contemporaneous' with the event.” To establish a foundation for a present sense
impression, evidence corroborating the statement must be brought forth. People v
Hendrickson, 459 Mich 229; 586 NW2d 906 (1998).
MRE 803(6) Business & Medical Records. Records of regularly conducted
business activity are generally admissible where the parties have stipulated to their
authenticity. If they have not, MRE 803(6) requires that a qualified witness testify
that the record: 1) was made at or near the time in question; 2) by or from
information transmitted by a person with knowledge; and 3) in the course of a
regularly conducted business activity. Alternatively, the parties may stipulate to the
admission of such records. Werthman v General Motors Corp, 187 Mich App 238,
242; 466 NW2d 305 (1990). Hearsay exceptions are based upon the inherent
trustworthiness of certain out of court statements or documents. The business
records hearsay exception is justified on a belief that unintentional mistakes would
likely be detected and corrected in the ordinary course of business. The trial court,
in its discretion, may exclude evidence meeting the literal requirements of the
business records exception where circumstances indicate a lack of reliability.
Solomon v Shuell, 435 Mich 104, 120, 122, 457 NW2d 669 (1990). Michigan v
Huyser, 221 Mich App 293, 561 NW2d 481 (1997). Michigan v Huyser, 454 Mich
911, 564 NW2d 48 (1997). The decision whether to admit evidence is within the
discretion of the trial court and will not be disturbed absent a clear abuse of
discretion. Craig v Oakwood Hosp, 471 Mich 67, 76; 684 NW2d 296 (2004). MRE
801(C) defines hearsay as “a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to prove the truth of the
matter asserted.” MRE 802 provides that hearsay is not admissible except as
provided by the Michigan Rules of Evidence. MRE 803(6) provides an exception for
memoranda, reports, records, or data compilation in any form of acts, transactions,
occurrences, events, conditions, opinions, or diagnoses, made at or near the time
by, or from information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it was the regular practice
of that business activity to make the memorandum, report, record, or data
compilation, all as shown by the testimony of the custodian or other qualified
witness, or by certification that complies with a rule promulgated by the supreme
court or a statute permitting certification, unless the source of information or the
method or circumstances of preparation indicate lack of trustworthiness. To lay a
foundation for admission of medical records under MRE 803(6), a qualified person
is an agent or “any person connected with a hospital and who is familiar with its
procedures of hospital record-keeping.” People v Kirtdoll, 391 Mich 370, 390 n 11;
217 NW2d 37 (1974). Sponenburgh v Wayne County, 106 Mich App 628, 652; 308
NW2d 589 (1981).
MRE 803(6) Statements Made for Medical Treatment or Diagnosis. Statements
made for medical treatment or diagnosis are not hearsay. This exception is not
restricted to statements to medical doctors. In Re Freiburger, 153 Mich App 251,
395 NW2d 300 (1986). Statements in medical records referring to history but not
related to treatment are inadmissible under MRE 803(6). Skelton v Michigan Host,
Inc., 144 Mich App 535, 376 NW2d 664 (1985). Vanevery v SEMTA, 142 Mich App
256, 369 NW2d 875 (1985). MRE 803(6) allows introduction of opinions and
130
diagnoses contained in records without cross-examination as to reliability, although
trustworthiness remains a threshold condition for admissibility. Solomon v Shuell,
435 Mich 104, 120, 122, 457 NW2d 669 (1990). Michigan v Huyser, 454 Mich 911,
564 NW2d 48 (1997).
MRE 803(8) Public Records & Reports. Police reports or investigative reports of
other public agencies are not admissible under this public record hearsay exception
of MRE 803(8). MCL 257.624. Webster v Central Paving, 51 Mich App 62 (1974).
MRE 803(18) Admission of Expert Depositions. Depositions of physicians or
experts are generally admissible at trial without proving the unavailability of the
witness. MRE 803(18). If, however, the physician does not recall the patient care
provided, even after reviewing recorded recollections, the deposition is not
admissible. Echols v Rule, 105 Mich App 405, 411 (1981).
MRE 804(b)(5) Admission of Lay Deposition of Unavailable Witness. A party
seeking admission of a deposition bears the burden of establishing admissibility)
Lombardo v Lombardo, 202 Mich App 151, 154; 507 NW2d 788 (1993). MRE
804(b)(5) provides for an unavailable witness, a deposition in the same or another
proceeding is admissible as an exception to the hearsay rule if the party against
whom the testimony is now offered, or, in a civil action or proceeding, a predecessor
in interest, had an opportunity and similar motive to develop the testimony by direct,
cross, or redirect examination. A deponent is unavailable under MRE 804(b)(5)(A),
if located more than 100 miles away from the trial court, unless it appears that the
absence of the witness was procured by the party offering the deposition. Barnett
v Hidalgo, 478 Mich 151, 174; 732 NW2d 472 (2007). Lombardo v Lombardo, 202
Mich App 151, 155; 507 NW2d 788 (1993).
Deposition Objections Generally Preserved.
All objections to deposition
questions are preserved unless the defect could be cured at the deposition. Defects
as to notice, the manner of the deposition, objections form and foundation must be
made at the deposition. Other objections may be made to preserve the impressions
of counsel during the deposition, but excessive commentary or “coaching” is
improper. MCR 2.306(C)(4). MCR 2.308(B)(C).
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132
XI.
Settlements & Dismissals
______________________
A.
B.
C.
D.
E.
Settlement Agreements
Release Agreements
Reporting of Settlements
Dismissals of Actions
Contribution Rights Among Tortfeasors
____________________________________
A.
Settlement Agreements
Oral Agreements to Settle Are Not Binding. Agreements to settle are governed
by contract law. Oral settlement agreements are generally not binding if
subsequently denied by a party. To be enforceable, an agreement must be made
in “open court” or subscribed by the party against whom the agreement is asserted,
or the party’s attorney. “Open court” includes chambers and deposition testimony.
Although an attorney of record generally has authority to act for a client, a final
judgment or settlement made by the attorney is not binding without the client’s
authorization or ratification. MCR 2.211. MCR 2.316. MCR 2.507(H). M Civ JI 4.11;
Coates v Drake, 131 Mich App 687, 346 NW2d 858 (1984). Gojcaj v Moser, 140
Mich App 828, 366 NW 54 (1985). Greenberg v Kaplan, 277 Mich 1, 268 NW 788
(1936). C.J. Huebel Co. v MacKinnon, 186 Mich 617, 152 NW 1098 (1915).
Greenberg v Kaplan, 277 Mich 1, 268 NW 788 (1936).
Settlements for Minors & Incapacitated Persons. Although contract principles
govern agreements to settle, a settlement agreement is not enforceable if it does
not satisfy the court rules. Michigan Mut Ins Co v Indiana Ins Co, 247 Mich App 480,
484-485, 637 NW2d 232 (2001). MCR 2.420 governs settlements on behalf of
minors or legally incapacitated persons. MCR 2.420(B) sets the procedure for entry
of a judgment for a minor and provides that the minor or legally incapacitated
individual shall appear in court to allow the judge an opportunity to observe the
nature of the injury unless, for good cause, the judge excuses the appearance. The
judge may require medical testimony, by deposition or in court, if not satisfied of the
extent of the injury. If the next friend has also made a claim and will share in the
settlement, then a guardian ad litem for the minor must be appointed to conduct an
investigation, and report in person or in writing, before any approval of the
settlement or judgment can be made. MCR 2.420(B)(2). MCR 5.121(C). A parent
has no authority to settle a claim on behalf of a child absent the formal procedures
under MCR 2.420. Smith v YMCA of Benton Harbor, 216 Mich App 552, 556, 550
NW2d 262 (1996). Neither mutual acceptances of a case evaluation or a failure to
object will obviate the need for the trial court to conduct a hearing under MCR
2.420(B). Pelshaw v Barnett, 431 Mich 910, 433 NW2d 77 (1988). Bowden v Hutzel
Hospital, 252 Mich App 566, 652 NW2d 529 (2002).
133
Settlements Under the Wrongful Death Act.
The authority of a personal
representatives is addressed in Estates and Protected Individuals Code, particularly
MCL 700.3715. That statutory provision provides that the powers a personal
representative include: “(x) Prosecute or defend a claim or proceeding in any
jurisdiction for the protection of the estate and of the personal representative in the
performance of the personal representative’s duties . . . (dd) Satisfy and settle
claims and distribute the estate as provided in this act.” MCR2.420(A). Unlike with
minors and protected persons, who are protected under MCR2.420 by a
requirement of court approval of settlements, no court rule specifically states that
a settlement of a claim of an estate must be approved by the court, but court
approval is prudent to protect the parties (and attorneys). The Wrongful Death Act,
in MCL 600.2922(5) states, with regard to litigated claims: “If, for the purpose of
settling a claim for damages for wrongful death where an action for those damages
is pending, a motion is filed in the court where the action is pending by the personal
representative asking leave of the court to settle the claim, the court shall, with or
without notice, conduct a hearing and approve or reject the proposed settlement.”
Settlements in wrongful death actions are covered under MCL 700.3924 which uses
the same discretionary terms as the Wrongful Death Act, stating in pertinent part:
“. . . if a personal representative petitions the court in writing asking leave to settle
the claim . . .” While these statutes do not state that a personal representative must
ask leave of court to resolve a claim of the estate, the court must approve any
distribution in a litigated matter. Such mandatory language is found in MCL
600.2922(6)(a) which states: The personal representative shall file with the court
a motion for authority to distribute the proceeds. MCL 600.2922(5) requiring court
approval of wrongful death settlements, did not preclude enforcement of a
settlement not immediately placed on the record where there was sufficient
evidence of the agreement despite Plaintiff’s attempt to avoid it. Smith v St. John
Health Sys. (Unpublished, April 15, 2003).
Jury Not Informed of Settlements. When a co-defendant settles before trial, the
jury is not informed of the settlement or the amount paid unless the parties stipulate
otherwise. Brewer v Payless Stations, Inc., 412 Mich 673, 316 NW2d 702 (1982).
Structured Settlements. If plaintiff and defendant agree to a structured
settlement, the court is to implement it. A defendant, or the liability insurer remains
the ultimate “obligee” under any structured settlement unless a “qualified
assignment” of the obligation is made as provided under Section 130(c) of the
Internal Revenue Code. A qualified assignment permanently extinguishes any
further obligation, even in the event of annuity company insolvency. MCL 600.6309,
Internal Revenue Code, Section 130(C).
B.
Release Agreements
Releases Generally. A release extinguishes rights. The release of an employee
or agent will generally release the employer and vice versa. A release should be
general to provide maximum protection against the possibility of any residual
liability, but also specific as to the particular persons and action being settled.
Rights to indemnity should also be considered where other persons or entities may
134
have rights of indemnity or contribution from the defendant for the alleged claim.
To be valid, a release requires consideration. Babcock v Public Bank, 366 Mich 124,
135; 114 NW2d 159 (1962). Paterek v 6600 Limited, 186 Mich App 445, 451; 465
NW2d 342 (1990). Under the pre-existing duty rule, doing what one is legally bound
to do is not consideration for a new promise. Yerkovich v AAA, 461 Mich 732,
740-741; 610 NW2d 542 (2000). Releases are narrowly construed against the
drafter. Theophelis v Lansing Hospital, 430 Mich 473, 491-492, 424 NW2d 478
(1988). Interpretation of a release is a question of law. If the language is clear and
unambiguous, the Court determines the intent of the parties from the plain and
ordinary meaning of its language. Wyrembelski v St Clair Shores, 218 Mich App
125, 127, 553 NW2d 651 (1996). A release is ambiguous where it is susceptible to
more than one interpretation. Cole v Ladbroke Racing Michigan, Inc, 241 Mich App
1, 13, 614 NW2d 169 (2000). Where a release is clear and unambiguous, it is error
to consider parol evidence to determine the intent of the parties. Meagher v Wayne
State Univ, 222 Mich App 700, 722, 565 NW2d 401 (1997).
Incidental Release of Third Parties Under Broad Releases. A broad release
may discharge another defendant. A release forever discharging “any other person,
firm or corporation charged or chargeable with responsibility or liability may bar an
action against any party. Romska v Opper, 234 Mich App 512, 515-516, 594 NW2d
853 (1999) over-ruled on other grounds in Shay v Aldrich, 487 Mich 648; --- NW2d
--- (2010). A release is valid if fairly and knowingly made. The scope is governed by
the intent of the parties as expressed in the release. Adell v Sommers, Schwartz,
Silver & Schwartz, PC, 170 Mich App 196, 201; 428 NW2d 26 (1988). A court may
consider extrinsic evidence of the intended scope of a release when an unnamed
party seeks to enforce third-party-beneficiary rights based upon broad language
included in a release, and an ambiguity exists with respect to the intended scope
of the release. MCL 600.2925d provides that if a release or a covenant not to sue
or not to enforce judgment is given in good faith to one of two or more persons for
the same injury or the same wrongful death, (a) The release or covenant does not
discharge one or more of the other persons from liability for the injury or wrongful
death unless its terms so provide, and (b) The release or covenant discharges the
person to whom it is given from all liability for contribution to any other person for
the injury or wrongful death. Shay v Aldrich, 487 Mich 648; --- NW2d --- (2010).
Release Language on Settlement Check. Endorsing and cashing a settlement
check which contained general release language barred all further claims, even
when only one potential defendant was named on the check. Expansive language
on a check that the payment was for the ‘FULL & FINAL SETTLEMENT FOR ANY
AND ALL BODILY INJURY CLAIMS,’ extinguished all claims. Cooley v McPharlin,
(Unpublished, September 26, 2006). Gortney v Norfolk & W R Co, 216 Mich App
535, 540-541; 549 NW2d 612 (1996).
Covenants Not to Sue. A covenant not to sue is like a release, but rights are not
extinguished. Rather, a covenant not to sue is an agreement not to pursue a
continuing right. This can allow a settlement by an employer, employee or agent,
but avoids an automatic release of the other by operation of law. Boucher v
Thomsen, 328 Mich 312, 321-322, 43 NW2d 866 (1950). Theophelis v Lansing
Hospital, 430 Mich 473, 491-492, 424 NW2d 478 (1988). Lincoln v Gupta, 142 Mich
135
App 615, 370 NW2d 312 (1985), lv den 424 Mich 874 (1986). Larkin v. Otsego Mem
Hosp Ass'n, 207 Mich App 391; 525 NW2d 475 (1994).
Pretreatment Release or “Waiver” Ineffective. A consent form containing a
release from liability is against public policy and unenforceable. Cudnick v William
Beaumont Hospital, 207 Mich App 378, 383 (1994).
C.
Reporting of Settlements
National Practitioner Data Bank Reports. The Health Care Quality Improvement
Act (“HCQIA”) was passed in 1986 to provide for effective peer review and interstate
monitoring of incompetent physicians, and to grant qualified immunity from
damages for those who participate in peer review activities. Austin v. McNamara,
979 F2d 728, 733 (9th Cir.1992); 42 U.S.C. § 11101. The purpose of the act is to
provide “effective peer review and interstate monitoring of incompetent physicians,
and to grant qualified immunity from damages for those who participate in the peer
review activities.” Meyers v. Columbia/HCA Healthcare Corp., 341 F.3d 461, 467
(6th Cir.2003). When a settlement is made by a health care facility, hospital, or
insurance company, on behalf of a health care provider, the settlement must be
reported to the National Healthcare Integrity and Protection Data Bank (the
“NHIPDB”). The data bank was established to receive and disclose certain final
adverse actions against health care practitioners, providers, and suppliers. Health
plans and government agencies are required to report information regarding
licensure and certification actions, exclusions from participation in federal and state
health care programs, criminal convictions, and civil judgments related to health
care to the NHIPDB. Federal and state government agencies and other health plans
access the data bank.
Personal Settlements Not Reportable. A personally paid settlement was not
reportable under the Health Care Quality Improvement Act where the act did not
encompass “individual” payments. American Dental Association v Shalala, 3 F3d
445; 303 USAppDC 231, 62 USLW 2142 (C.A.D.C.,1993).
Settlement & Judgment Reporting. Under MCL 600.2912h, within 30 days of a
settlement, plaintiff and defense counsel, or the parties themselves, must jointly file
the settlement agreement with the bureau responsible for licensure and discipline.
Three awards, settlements or judgments within five consecutive years, or one or
more settlements totaling more than $200,000, requires investigation. MCL
333.16231(3). Under MCL 333.16243(2), within 10 days after the entry of a
judgment against a licensee finding the licensee negligent in an action for
malpractice or the approval by a court of a settlement in an action for malpractice,
the clerk of the court in which the judgment was entered or the settlement approved
shall prepare and immediately forward to the department on a form prescribed by
the department a report setting forth the name of the licensee and the amount of
damages awarded or the amount of the approved settlement.
D.
Dismissals of Actions
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Dismissal of Action Without Prejudice. A dismissal “without prejudice” means
that the issues raised in the Complaint are not determined on the merits and the
claims are not extinguished. The case is merely removed from the Court’s
jurisdiction and the statute of limitations resumes running. Wickings v. Arctic
Enterprises, Inc., 244 Mich App 125, 134-136, 624 NW2d 197 (2000).
Voluntary Dismissal of Action. MCR 2.504(A)(2), provides that an action may
not be dismissed at the plaintiff’s request except by order of the court on the terms
and conditions the court deems proper. MCR 2.504(A)(2) also applies to dismissals
of cross-claims. MCR 2.504(C). The grant or denial of voluntary dismissal is within
the discretion of the trial court. McKelvie v City of Mount Clemens, 193 Mich App 81,
86; 483 NW2d 442 (1992). The court may require the plaintiff to pay costs and
attorney fees as a condition of for a voluntary dismissal where an appearance and
answer has been filed. Davis v Koch, 118 Mich App 529, 325 NW2d 482 (1982).
Fletcher v Fletcher, 447 Mich 871, 883; 526 NW2d 889 (1994). In deciding whether
to grant a request for voluntary dismissal, the trial judge is to weigh the interests of
the parties along with any resulting inconvenience to the court. African Methodist
Episcopal Church v Shoulders, 38 Mich App 210, 212; 196 NW2d 16 (1972).
Normally, such a motion should be granted unless the defendant will be legally
prejudiced. A motion for voluntary dismissal should not be granted where an
adverse determination has been made, or one is pending. McLean v McElhaney,
269 Mich App 196, 202-203; 711 NW2d 775 (2005). Rosselott v Co of Muskegon,
123 Mich App 361, 375-376; 333 NW2d 282 (1983).
Dismissal of Action With Prejudice. A dismissal with prejudice is an adjudication
on the merits which bars all claims against the defendant which were plead, or
which with reasonable diligence could have been pled, arising out of the same
“transaction or occurrence.” MCR 2.203(A) requires joinder of all claims arising out
of the same transaction or occurrence, including any medical malpractice claims.
ISB Sales Co v Dave’s Cakes, 258 Mich App 520, 526-527; 672 NW2d 181 (2003).
Sewell v Clean Cut Management, Inc, 463 Mich 569, 575; 621 NW2d 222 (2001).
Dart v Dart, 460 Mich 573, 586; 597 NW2d 82 (1999).
E.
Contribution Rights Among Tortfeasors
Generally.
MCL 600.2925d provides that a release or a covenant not to sue or
enforce a judgment given in good faith to one tortfeasor does not release any other
tortfeasors unless its terms so provide. The tortfeasor to whom the release is given
is then released from all liability for contribution to any other tortfeasor. Providing
timely notice to other parties of an intention to settle generally eliminates liability for
contribution to other tortfeasors later found liable to the plaintiff. MCL 600.6304.
Contribution Rules. With the exception of medical malpractice claims, a
defendant’s liability in most civil damages claims is limited by their percentage of
fault, regardless of whether they are a party. MCL 600.6304(1). In other words,
“joint and several” liability is no longer the general rule under Michigan law. MCL
600.2956, MCL 600.2957 and MCL 600.6304. However, MCL 600.2925a provides
that when two or more persons are jointly or severally liable for the same injury,
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there is a right of contribution for a tort feasor who pays more than his/her pro rata
share of liability. Kokx v Bylenga, 241 Mich App 655, 662, 617 NW2d 368 (2000).
Gerling Konzern Allgemeine Versicherungs AG v Lawson, 472 Mich 44, 51; 693
NW2d 149 (2005).
Set Offs for Settlements by Other Parties. The 1996 tort reforms abolished joint
liability in all but medical malpractice claims, and no longer allow a person to be held
liable for damages beyond his or her pro rata share. As a part of the reforms, the
right to a set-off in any judgment for other settlements was eliminated, but may still
apply under the common law in medical malpractice cases where joint liability still
remains. MCL 600.2956; MCL 600.6304(4). Kokx v Bylenga, 241 Mich App 655, 617
NW2d 368 (2000). It is the actual damage award, not claimed damages, that is
reduced by the settlements with other tortfeasors. Cheron, Inc., v Don Jones, Inc.
244 Mich App 212, 625 NW2d 93 (2000). Dep’t of Transportation v Thrasher, 446
Mich 61, 79, 521 NW2d 214 (1994). Rittenhouse v Erhart, 424 Mich 166, 185, 193,
380 NW2d 440 (1985).
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XII.
Trial Practice
___________________________
A.
B.
C.
D.
E.
F.
G.
H.
I.
J.
General Trial Procedure
Trial Stipulations & Admissions
Motions In Limine
Voir Dire
Exhibits
Witness Procedure
Trial Motions
Jury Instructions
Supplemental & Non-Standard Jury Instructions.
Forms of Verdict
_________________________________
A.
General Trial Procedure
Pre Trial Practice Generally. Typically, the Court requires a pre-trial order to
govern a case. This covers anticipated witnesses, exhibits, unusual legal issues,
and matters which have been stipulated by the parties. On the day of trial, the first
order of business is often the bringing of motions in limine. These are motions to
prevent, in advance, the attempt to introduce evidence which may, by its very
utterance, prejudice the trial process by irrelevant, but sensational, evidence or
comment which is legally inadmissible. Typically, the insured status of the
defendant, unrelated salacious or improper activities of a party or witness, and
misleading documentary evidence will be the subject of such motions. Should the
motion be granted, there will usually be a sanction imposed in advance should the
Court’s ruling not be followed.
Separate Trials on Certain Issues. MCR 2.505(B) states, “For convenience or
to avoid prejudice, or when separate trials will be conducive to expedition and
economy, the court may order a separate trial of one or more claims, cross-claims,
counterclaims, third-party claims, or issues” (emphasis added). The power to order
separate trials should be exercised only upon the most persuasive showing that the
convenience of all the parties and the court require such drastic action or that
prejudice to a party can not otherwise be avoided. Hodgins v Times Herald Co, 169
Mich App 245, 261; 425 NW2d 522 (1988). Detloff v The Taubman Co, Inc, 112
Mich App 308, 310-311; 315 NW2d 582 (1982).
Jury Selection Generally. The goal of jury selection is to have a fair and impartial
jury, but each party seeks to seat a jury which will favor them. In a civil action, a
minimum of six jurors are seated, but usually there will be at least one “alternate”
juror seated so that there is little risk that a mistrial will occur because a juror
becomes sick or otherwise is unable to complete the trial. Where a party fails to
object to the method of jury selection, the issue is waived for appeal. People v
Lawless, 136 Mich App 628, 636; 357 NW2d 724 (1984). People v Goode, 78 Mich
App 781, 789; 261 NW2d 47 (1977).
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Objections Generally. Objections are based upon the rules of evidence. All
proofs must be authorized by some evidentiary rule. In many areas, however, the
Court has wide discretion to admit or exclude evidence. In other areas, admitting
improper evidence may require reversal and a new trial. MRE 101-1102.
Opening Statements. Opening statements are supposed to be brief summaries
of what the party intends to prove through witnesses or other evidence. The jury
is informed of the basic law which they will later be asked to apply in the case. In
reality, the goal of the attorney is to try to sway the Jury from the outset by setting
a perspective for the case, or “playing field”, which favors his position. Nothing said
by the attorneys is evidence, but if they cannot later prove what they say they intend
to, they will be usually called to task for it after proofs are closed and closing
arguments begin. If a party fails to state a prima facie case on opening statement,
the case may be dismissed with prejudice or a default entered upon motion. People
v Carter, 462 Mich 206; 612 NW2d 144 (2000). McClain v Univ of Michigan Bd of
Regents, 256 Mich App 492, 494-495 n.2; 665 NW2d 484 (2003). MCR 2.504(B)(1).
MCR 2.507(A). Stevens v Stevens, 355 Mich 363, 368; 94 NW2d 858 (1959). MCR
2.504(B).
Order of Proofs & Witnesses. MRE 611(a) grants the trial court broad power to
exercise “reasonable control” over the order and manner of interrogating witnesses
and presenting evidence to make the process effective for the ascertainment of the
truth, to avoid needless consumption of time, and to protect witnesses from
harassment or undue embarrassment. Phillips v Deihm, 213 Mich App 389, 402;
541 NW2d 566 (1995).
Plaintiff’s Proofs. The Plaintiff always goes first with presenting proofs, and has
the burden of proving all legal elements of the claim by evidence creating a
“preponderance” or “more likely than not” claim of entitlement to damages. During
this process, witnesses will be called by plaintiff’s counsel, with the defense attorney
cross-examining the witnesses to undermine any persuasiveness they may have on
the merits by bringing out inconsistencies, biases, seeking concessions, or
revealing their lack of knowledge. In a medical malpractice case, key witnesses will
be experts who will testify as to the “standard of care” applicable to the conduct of
the defendant. The only remedy available in a typical civil trial is money damages,
so much testimony will relate to the losses claimed.
Defendant’s Proofs. After the plaintiff finishes introducing evidence, the defense
is offered the opportunity to put on proofs. First, however, the defense will generally
test the sufficiency of the Plaintiff’s proofs by asking the Court to grant a “Directed
Verdict” asserting that there is some deficiency to the Plaintiff’s case which
precludes recovery and requires that the matter be dismissed, with judgment in
favor of the defense. If this motion fails, defense proofs will proceed. Most
commonly, the defense then introduces evidence to rebut the Plaintiffs claim with
evidence or witnesses not introduced by plaintiff. If the Defendant has raised an
“affirmative defense,” which may defeat an otherwise valid case, it must be then
proven by the same “preponderance of the evidence” standard required of the
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Plaintiff. This could mean introducing proof that, regardless of the merits of the
case, the time for bringing the action has passed, that the matter was previously
settled, that there is some immunity from the claim granted by law, or some other
assertion which would defeat the Plaintiff’s otherwise valid claim.
Closing Arguments. When all proofs are in, closing arguments are given where
the respective attorneys recapitulate the evidence and synthesize it into the theme,
or theory of the case, previously given in the opening statement. This is where
“argument” comes to the fore, with the attorney bringing all of the persuasiveness
they can muster to convince the jury of the righteousness (not necessarily “merit”)
of their position. Where the facts have favored a party’s position, they will be
stressed. Where the law favors the party, it will be stressed. Statements by counsel
of personal knowledge not in evidence, or personal beliefs, are generally improper.
People v Coddington, 188 Mich App 584, 470 NW2d (1991). Vouching for a witness’
truthfulness is also generally improper. People v Reed, 449 Mich 375, 525 NW2d
496 (1995). Reasonable inferences to be drawn from the evidence, and references
to well known matters of public knowledge are generally permissible, but argument
as to matters outside the record may be objectionable. Hunt v Freeman, 217 Mich
App 92, 550 NW2d 817 (1996). References to ethnic status may be objectionable.
People v Bahoda, 448 Mich 261, 531 NW2d 659 (1995). Comments as to the
wealth of a party are generally improper. Reetz v Kinsman Marine, 416 Mich 97,
330 NW2d 638 (1982). Counsel may not ask the jury to put themselves in the place
of a party. This violates “The Golden Rule” of closing argument. Phillips v Mazda
Motor, 204 Mich App 401, 516 NW2d 502 (1994). Anderson v Harry’s Army Surplus,
117 Mich App 601, 324 NW2d 96 (1982). It is proper to discuss the character of
witnesses, the probability of truth of certain testimony, and when there is a
reasonable basis, to characterize testimony. Reversal may be required for language
revealing a studied purpose to inflame or prejudice the jury based upon facts not in
evidence. Kern v St Luke’s Hosp Ass’n of Saginaw, 404 Mich 339, 353-354; 273
NW2d 75 (1978). Firchau v Foster, 371 Mich 75, 78; 123 NW2d 151 (1963). Overly
disparaging remarks or name calling is objectionable. Wilson v General Motors
Corp., 183 Mich App 21, 324 NW2d 405 (1990).
B.
Trial Stipulations & Admissions
Jury Control Agreements (“High-Lows”). The parties may reduce their risks at
trial by setting low and high limits on recovery regardless of the verdict. Such an
agreement is contractual in nature and should be placed on the record. The jury
should be advised of a high low agreement where only some of the parties are
involved. High low agreements tend to “distort” the adversarial process and misled
the jury. The trial court was instructed to “craft a disclosure to reasonably ensure
fairness to each litigant. The jury was not to be advised of specific settlement
numbers. Juries need not be advised of high low arrangements when there is only
one defendant. Parties cannot place the law beyond the reach of the Court by
stipulation. Hashem v Les Stanford Oldsmobile, Inc, 266 Mich App 61, 79; 697
NW2d 558 (2005). Mack v City of Detroit, 467 Mich 1211, 1213; 654 NW2d 563
(2002). A court is not bound by a misstatement of the law. Marbury v James
Madison, 1 Cranch 137, 177; 2 L Ed 60 (1803). Rice v Ruddiman, 10 Mich 125, 138
(1862). In re Finlay Estate, 430 Mich 590, 595; 424 NW2d 272 (1988).
141
Mary Carter Settlement Agreements. In a “Mary Carter” agreement (named after
a 1967 Florida decision, Booth v Mary Carter Paint Co), the Plaintiff makes a secret
agreement to settle with one or more defendants, sometimes for an amount that
decreases based upon a higher jury award against the other defendants. Many
courts have held that this type of agreement is improper by providing one defendant
with a monetary incentive to assist the plaintiff against other defendants. In Hashem
v Les Stanford Oldsmobile, Inc, 266 Mich App 61, 79; 697 NW2d 558 (2005), the
Court of Appeals discussed “Mary Carter” agreements, without specifically ruling
whether such an agreement would be valid under Michigan law.
Admission of Medical Records.
Often, it is agreed by the parties that records
will be introduced into evidence without the usual necessity of calling records
custodians to establish their authenticity.
Judicial Admissions. A judicial admission is a statement made by a party or his
attorney during trial which “is a distinct, formal, solemn admission which is made for
the express purpose of dispensing with formal proof of that particular fact at trial.”
Gojcaj v Moser, 140 Mich App 828, 833-834; 366 NW2d 54 (1985). Responses to
requests for admissions under MCR 2.312 are judicial admissions. Such admissions
are conclusive and not subject to contradiction or explanation. Hilgendorf v St John
Hosp & Medical Center Corp, 245 Mich App 670, 689, 630 NW2d 356 (2001).
Radtke v Miller, Canfield, Paddock & Stone, 453 Mich 413, 551 NW2d 698 (1996).
Janczyk v Davis, 125 Mich App 683, 687, 337 NW2d 272 (1983).
Evidentiary Admissions.
Statements made by attorneys are generally not
evidence, but some statements of a party or counsel may be admissions. A
statement of a party opponent under MRE 801(d)(2) is an “evidentiary” admission.
A party may attempt to explain or disprove an evidentiary admission. Radtke v
Miller, Canfield, Paddock & Stone, 453 Mich 413, 420-421; 551 NW2d 698 (1996).
Issues Tried by Consent. Unless timely objection is made, unplead issues are
treated as if raised in the pleadings under MCR 2.118(C)(1), and the pleadings may
be summarily amended to conform to the evidence. Kemp v Harper Grace Hospital,
180 Mich App 473, 447 NW2d 780 (1989). Belobradich v Sarnsethsiri, 131 Mich
App 241, 346 NW2d 83 (1983). A failure to object to a jury instruction creating
vicarious liability on the part of one physician for another’s negligence was not
plead, but was tried by express or implied consent. Symons v Prodinger, 484 Mich
851, 768 NW2d 317(2009).
C.
Motions in Limine
Motions in Limine Generally. Motions in Limine are brought before opening
statements to prevent attempts to introduce evidence not in dispute, or which is
inadmissible due to irrelevance, prejudice or other grounds. Under MRE 403,
relevant evidence may be excluded if its probative value is substantially outweighed
by the danger of unfair prejudice. Waknin v Chamberlain, 467 Mich 329, 334; 653
NW2d 176 (2002). It may be reversible error to submit to a jury issues not in dispute
142
or which have been admitted. Richardson v Coddington, 45 Mich 338, 7 NW 903
(1881). Anderson v Lavell, 285 Mich 194 (1938). Holbert v Staniak, 359 Mich 283,
102 NW2d 186 (1960). MRE 402. MRE 403. M Civ JI 17.01.
D.
Voir Dire
Generally.
Voir Dire is the questioning of potential jurors to assure a fair jury to
try the case. The Court may conduct the questioning, or may allow counsel to do
so. Where evidence of bias or prejudice is revealed, the parties have unlimited
“challenges for cause.” In civil cases, the parties also have three “peremptory
challenges” to remove jurors for no stated reason. It is not permissible, however, to
use peremptory challenges to exclude jurors on the basis of race. MCR 2.510;
MCR 2.511; People v Talison, 21 Mich App 459, 175 NW2d 519 (1970). Edmonson
v Leesville Concrete Co., 500 U.S. 614, 111 SCt 2077, 114 LEd2d 660 (1991).
Challenging Jurors for Cause. A juror must be able to set aside personal
opinions and decide a case based solely on the facts and applicable law. The trial
court has discretion whether to dismiss a juror for cause, such as an inability to be
fair and impartial. MCR 2.511. Colbert v Primary Care Medical, PC, 226 Mich App
99, 102, 574 NW2d 36 (1997). People v Jendrzejewski, 455 Mich 495, 515-516, 566
NW2d 530 (1997). A trial court’s decision whether to grant or deny a challenge for
cause is generally discretionary, but where apprehension about a challenged juror
is reasonable, the court should err on the side of the moving party.” Reversal on the
basis of an improperly denied challenge for cause requires “additional proof of
prejudice.” For a party to seek relief from the denial of a challenge for cause, there
must be a showing on the record that: 1) the court improperly denied a challenge
for cause, 2) the aggrieved party exhausted all peremptory challenges, 3) the party
demonstrated a desire to excuse a subsequently summoned juror, and 4) the juror
the party wished later to excuse was objectionable. “Objectionable” is a lesser
standard than “excusable for cause,” and is defined as “causing or tending to cause
an objection, disapproval, or protest.” Poet v Traverse City Osteopathic Hospital,
433 Mich 228, 238; 445 NW2d 115 (1989).
Peremptory Challenges.
A peremptory challenge is the right to dismiss a
potential juror for no reason. They may not be used, however, for the sole reason
to remove based upon race, gender, religion, etc. They help ensure a fair trial, both
in fact and in appearance. Georgia v McCollum, 505 US 42, 57; 112 S Ct 2348; 120
L Ed 2d 33 (1992). Peremptory challenges may be exercised at any time before the
swearing of the jury. People v Rich, 237 Mich 481, 487; 212 NW 105 (1927). In re
Bennett Estate, 51 Mich 71, 72; 16 NW 236 (1883). Johns v People, 25 Mich 499
(1872). MCR 2.511(E) governs the use of peremptory challenges. The plaintiff and
then the defendant exercise their peremptory challenges until all have been used,
or the parties successively waive further peremptory challenges. At that point, jury
selection is complete. A party may ‘pass’ when it is time to exercise a challenge,
and this is a waiver of further challenge to the panel as constituted at that time. If
a challenge for cause is sustained, or a peremptory challenge exercised, another
juror must be selected and examined before further challenges are made. If the
composition of the panel changes after a party passes, the party is free to exercise
143
further peremptory challenges to any member of the new panel. People v Schmitz,
231 Mich App 521 (1998). A claim that jury selection was improper is generally not
preserved if a party has not used all peremptory challenges. People v Taylor, 195
Mich App 57, 59-60; 489 NW2d 99 (1992).
E.
Exhibits
Exhibits Generally. Pleadings may be read and argued without the necessity of
admitting them. Vachon v Todorovich, 356 Mich 182 (1959). Eisbrenner v Stanley,
106 Mich App 357 (1981), rev’d on other grds, Taylor v Kurapati, 236 Mich App 315
(1999). Pleadings may be admitted into evidence as exhibits. Beals v Walker, 98
Mich App 214 (1980), rev’d other grds, 416 Mich 469 (1982).
F.
Witness Procedure
Attendance of Parties at Trial. A party who wishes to compel the attendance of
opposing parties at trial must serve subpoenas on them. You only need to serve
the party’s attorney with a subpoena to compel the attendance of a party. An agent
of a corporate party is considered party for these purposes. MCR 2.506(F) and
2.313(D)(1). Cavanaugh v Cardamone, 147 Mich App 159, 383 NW2d 601 (1985).
Sequestration of Witnesses. Court proceedings, with certain exceptions, are
public. At the request of a party, however, the court may order witnesses excluded
so that they cannot hear the testimony of other witnesses. The court may also
make the order on its own motion. The rule does not authorize exclusion of: 1) a
party who is a “natural person,” or 2) an officer or employee of a corporation or
organization designated as its representative by its attorney, or 3) a person whose
presence is shown by a party to be essential to the presentation of the party’s
cause. MCL 600.1420; MRE 615; People v Cyr, 113 Mich App 213 (1982).
Unlisted Witnesses. An unlisted witness may not be called, except for good cause
shown. MCR 2.401(I)(2). However, a trial court should not be reluctant to allow an
unlisted witnesses where justice requires, particularly rebuttal witnesses. Justice is
best served where an unlisted witness can be permitted to testify while the interests
of the opposing party are adequately protected. If reasonable conditions can allow
the testimony of the undisclosed witness to be admitted without prejudice to
opposing parties, then permitting the witness to testify subject to conditions is
appropriate. Before barring a witness due to untimeliness, the court must consider
the particular circumstances of the case to determine if such a drastic sanction is
appropriate. Dean v Tucker, 182 Mich App 27, 32; 451 NW2d 571 (1990). The court
should consider numerous factors relevant to the circumstances of the case, id. at
32-33; Tisbury v Armstrong, 194 Mich App 19, 20-21, 486 NW2d 51 (1992). The
decision to allow an unlisted witness to testify is within the trial court’s discretion and
the decision should not be reversed unless there is an abuse of discretion. Jernigan
v General Motors Corp, 180 Mich App 575, 584, 447 NW2d 822 (1989). Kalamazoo
Oil Co v Boerman, 242 Mich App 75, 90, 618 NW2d 66 (2000).
144
Identification of Witnesses. It has been held adequate to identify a witness by the
generic phrase “Any and all health care professionals where Plaintiff has treated.”
Dunn v Lederele Laboratories, 121 Mich App 73, 88-89; 328 NW2d 576 (1982).
Dunlap v Dash (Unpublished, February 24, 2004).
Rebuttal Witnesses & Evidence. When a party has introduced evidence to
disprove a fact, the trial court may allow rebuttal evidence to prove that fact. Nolte
v Port Huron Area School Dist Bd Of Ed, 152 Mich App 637, 645, 394 NW2d 54
(1986). Rebuttal evidence explains, contradicts, or otherwise refutes an opponent’s
evidence. Its purpose is to undercut the opponent’s case and not to merely confirm
the proponent’s case. A plaintiff may not introduce during rebuttal new and
independent facts which may have been introduced in the case in chief unless
permitted to do so by the court. Sullivan Industries, Inc v Double Seal Glass Co, 192
Mich App 333, 348; 480 NW2d 623 (1991). Rebuttal testimony is used to contradict,
explain, or refute evidence presented by the other party in order to weaken it or
impeach it. The purpose of rebuttal evidence is to undercut an opponent’s case, and
a party may not introduce evidence competent as part of his case in chief during
rebuttal unless permitted to do so by the court. Generally, rebuttal evidence is not
allowed unless an unanticipated issue or claim has been raised during the trial.
Winiemko v Valenti, 203 Mich App 411, 418, 513 NW2d 181 (1994). Rebuttal
evidence must relate to a substantive rather than a collateral matter, and
contradictory evidence is admissible only to directly disprove exact testimony. City
of Westland v Okopski, 208 Mich App 66, 72; 527 NW2d 780 (1994). The scope of
rebuttal in civil cases is within the sound discretion of the trial court. Taylor v Blue
Cross & Blue Shield of Michigan, 205 Mich App 644, 655; 517 NW2d 864 (1994).
Beard v James Horton, Jr., D.O. (Unpublished, November 4, 2010). Whether
rebuttal is proper depends on the proofs the defendant introduced and merely what
the defendant testified about on cross examination. The test of whether rebuttal
evidence is properly admitted is whether the evidence is responsive to evidence
introduced, or a theory developed by the defendant. Where evidence is responsive
to material presented by the defense, it is properly classified as rebuttal, even if it
overlaps evidence admitted in the plaintiff’s case in chief. People v Figgures, 451
Mich 390, 399; 547 NW2d 673 (1996). People v De Lano, 318 Mich 557, 570; 28
NW2d 909 (1947).
G.
Trial Motions
Motion for a Directed Verdict. A motion for a directed verdict is required, at the
close of plaintiff’s proofs, as a prerequisite to a motion for Judgment
Notwithstanding the Verdict. A directed verdict is appropriate, however, only when
no factual question exists upon which reasonable minds may differ and all doubts
are resolved against the moving party. Where plaintiff’s expert is not familiar with
the applicable standard of care, a directed verdict is proper. Gillman v Lloyd, 172
Mich App 563, 432 NW2d 356 (1988). Muilenberg v Upjohn Co., 115 Mich App 316,
320 NW2d 358 (1982). Where a plaintiff fails to offer sufficient expert testimony, or
a reasonable question as to a material fact on all necessary elements of a claim, a
directed is generally appropriate. LaCourse v Gupta, 181 Mich App 293, 448 NW2d
827 (1989). Carlton v St. John Hospital, 182 Mich App 166, 451 NW2d 543 (1989).
145
Sargent v Eckhouse, 171 Mich App 703, 430 NW2d 763 (1988). Marchlewicz v
Stanton, 50 Mich App 344, 213 NW2d 317 (1973). Waatti v Marquette General
Hospital, 122 Mich App 44, 329 NW2d 526 (1982).
Motion for Mistrial. When improper conduct occurs during trial, counsel may
move for a mistrial. This is generally done outside the presence of the jury. The
grant or denial of such motion is in the discretion of the judge. MaCarthy v Belcher,
128 Mich App 344, 347 (1983). Anderson v Harry’s Army Surplus, 117 Mich App
601, 615 (1982). Benmark v Steffen, 374 Mich 155, 163-4 (1965). If no motion for
mistrial has been made, objection to the improper conduct may be waived. Koepel
v St. Joseph Hospital, 381 Mich 440, 442-3 (1968). But, for if an error is incurable,
the appellate court may allow review anyway. Reetz v Kinsman Marine Transit Co.,
416 Mich 97, 101-2 (1982).
H.
Jury Instructions
Jury Instructions. MCR 2.516 provides that the parties must file written requests
to instruct the jury as directed by the court, or at or before the close of the evidence
and a concise statement of the issues and theory of the case as supported by
evidence. A copy must be served on other counsel. The court shall act on the
requests before closing argument. After the jury is sworn the court gives preliminary
instructions regarding the duties of the jury, procedure, and the law of the case. At
any time during trial, the court may instruct the jury on a point of law if it will aid the
jury. Before or after arguments, the court shall instruct on the applicable law, the
issues presented and the party’s theory of the case. The court, at its discretion, may
comment on the evidence, the testimony, and the character of the witnesses as the
interests of justice require. While the jury deliberates, the court may instruct the jury
further and provide a full or partial set of the instructions. A party must object on the
record to a failure to give certain instructions before deliberations begin. The
Michigan Model Civil Jury Instructions (M Civ JI) must be given if they are
applicable, accurately state the law, and are requested by a party. MCR
2.516(D)(2). Where the committee on model instructions has recommended that
no instruction be given on an issue, the court shall not give an instruction unless it
specifically finds on the record that the instruction is necessary to accurately state
the law, and the matter is not adequately covered by other instructions. The court
is free to give additional instructions on applicable law not covered by the model
instructions, but they must be in the style of the model instructions, concise,
understandable, conversational, un-slanted, and non-argumentative. After closing
arguments, the jury is instructed as to the law and how they are to conduct
deliberations. The Jury then selects a foreperson and deliberates. When they have
reached a unanimous decision, or by stipulation a majority decision, they notify the
Court, the verdict is read, and a judgment entered.
Standard Jury Instructions. The standard Michigan model jury instructions must
be given when requested by a party where applicable and where they accurately
state the law. Chastain v General Motors Corp (On Remand), 254 Mich App 576,
590; 657 NW2d 804 (2002). MCR 2.516. MCR 2.516(D)(2). In order for the court
to give a requested jury instruction, there must be sufficient evidence to warrant the
146
instruction. Bordeaux v Celotex Corp, 203 Mich App 158; 511 NW2d 899 (1993).
The determination of whether an instruction is accurate and applicable is within the
discretion of the trial court. Stevens v Veenstra, 226 Mich App 441, 443, 573 NW2d
341 (1997). Lewis v Legrow, 258 Mich App 175, 211; 670 NW2d 675 (2003).
Keywell & Rosenfeld v Bithell, 254 Mich App 300, 339; 657 NW2d 759 (2002).
Johnson v Corbet, 423 Mich 304, 327; 377 NW2d 713 (1985). Jury instructions are
to be viewed as a whole rather than separately in determining whether there was
reversible error. Case v Consumers Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000).
City of Lansing v Hartsuff, 213 Mich App 338, 348, 539 NW2d 781 (1995). Larzelere
v Farmington Township, 63 Mich App 465, 468, 234 NW2d 568 (1975). Jury
instructions should include all of the elements of the plaintiff’s claims and should not
omit material issues, defenses, or theories if the evidence supports them. Case v
Consumers Power Co, 463 Mich 1, 6, 615 NW2d 17 (2000). When the standard
jury instructions do not adequately cover an area, the trial court must give additional
instructions when requested, if the supplemental instructions properly inform the
jury of the applicable law and are supported by the evidence. Additional instructions
must be patterned in the style of the model instructions in a concise,
understandable, conversational, unslanted, and nonargumentative manner. MCR
2.516(D)(3)-(4). Bouverette v Westinghouse Electric Corp, 245 Mich App 391,
401-402; 628 NW2d 86 (2001). A trial court’s decision regarding supplemental
instructions will not be reversed unless inconsistent with substantial justice. Grow
v W A Thomas Co, 236 Mich App 696, 702; 601 NW2d 426 (1999). It is error to
modify a standard jury instruction to effectively relieve a party of their burden of
proof. Instructions must inform the Jury of the requirement to establish each
allegation of vicarious liability by identifying the agent alleged to have been
negligent, and the proper standard of care applicable to each such alleged agent.
Cox v Board of Hospital Managers for the City of Flint, 467 Mich 1, 651 NW2d 356
(2002). Johnson v Corbet, 423 Mich 304, 324-327, 377 NW2d 713 (1985).
M Civ JI 30.01 Professional Negligence and/or Malpractice. M Civ JI 30.01, as
to professional negligence states: “Professional Negligence and/or Malpractice.
When I use the words “professional negligence” or “malpractice” with respect to the
defendant’s conduct, I mean the failure to do something which a [Name profession.]
of ordinary learning, judgment or skill in [this community or a similar one / [Name
particular specialty.] would do, or the doing of something which a [Name
profession.] of ordinary learning, judgment or skill would not do, under the same or
similar circumstances you find to exist in this case. It is for you to decide, based
upon the evidence, what the ordinary [Name profession.] of ordinary learning,
judgment or skill would do or would not do under the same or similar
circumstances.” Claims against a hospital for the conduct of unnamed “agents,
servants, or employees” requires the trial court to ensure that the jury clearly
understands how to determine whether each employee committed professional
malpractice under the standard of practice applicable to each specialty. The
unmodified M Civ JI 30.01, does not adequately do so and must be modified. Tobin
v Providence Hospital, 244 Mich App 626, 624 NW2d 548 (2001).
M Civ JI 30.02 Informed Consent. M Civ JI 30.02, as to informed consent
provides: “Negligence may consist of the failure on the part of the [Name
147
profession.] to reasonably inform [name of plaintiff] of risks or hazards which may
follow the [treatment / services] contemplated by the [Name profession.]. By
“reasonably inform” I mean that the information must have been given timely and
in accordance with the accepted standard of practice among members of the
profession with similar training and experience in [this community or a similar one
/ [Name particular specialty.]].”
M Civ JI 30.03 Burden of Proof. M Civ JI 30.03 on the burden of proof states:
“The plaintiff has the burden of proof on each of the following: That the defendant
was professionally negligent in one or more of the ways claimed by the plaintiff as
stated in these instructions; That the plaintiff sustained injury and damages; That
the professional negligence or malpractice of the defendant was a proximate cause
of the injury and damages to the plaintiff. Your verdict will be for the plaintiff if the
defendant was negligent, and such negligence was a proximate cause of the
plaintiff’s injuries, and if there were damages. Your verdict will be for the defendant
if the defendant was not professionally negligent or did not commit malpractice, or
if the defendant was professionally negligent or did commit malpractice but such
professional negligence or malpractice was not a proximate cause of the plaintiff’s
injuries or damages, or if the plaintiff was not injured or damaged.”
M Civ JI 30.04 Medical Uncertainties. M Civ JI 30.04, a cautionary instruction on
medical uncertainties, provides: “There are risks inherent in medical treatment that
are not within a doctor’s control. A doctor is not liable merely because of an adverse
result. However, a doctor is liable if the doctor is negligent and that negligence is
a proximate cause of an adverse result.” Michigan courts recognize a distinction
between a doctor’s negligence and a treatment’s failure. The fact that a full recovery
does not result, or that a surgical operation is not entirely successful, is not in itself
evidence of negligence. Roberts v Young, 369 Mich 133, 138; 119 NW2d 627
(1963). Zoterell v Repp, 187 Mich 319, 330; 153 NW 692 (1915).
M Civ JI 30.05 Inference from Circumstantial Evidence (Res Ipsa Loquitur).
M Civ JI 30.05 allowing a permissible inference of malpractice from circumstantial
evidence (Res Ipsa Loquitur) states: “If you find that the defendant had control over
the [body of the plaintiff / instrumentality which caused the plaintiff’s injury], and that
the plaintiff’s injury is of a kind which does not ordinarily occur without someone’s
negligence, then you may infer that the defendant was negligent. However, you
should weigh all of the evidence in this case in determining whether the defendant
was negligent and whether that negligence was a proximate cause of plaintiff’s
injury. This instruction should be given only if there is expert testimony that the
injury would not ordinarily occur without negligence, or if the court finds that such
a determination could be made by the jury as a matter of common knowledge]. In
Arnold v MidMichigan Med. Ctr. – Midland (Unpublished, July 26, 2007) it was held
that the trial court properly dismissed a res ipsa loquitur claim where no evidence
was introduced that the alleged injury would not normally occur in the absence of
negligence. The mere possibility that a breach of duty by defendant caused
Plaintiff’s injuries is insufficient to establish causation or to apply the doctrine of res
ipsa loquitur. The following must be present for a res ipsa loquitur claim: (1) the
event must be of a kind which ordinarily does not occur in the absence of
148
someone’s negligence; (2) it must be caused by an agency or instrumentality within
the exclusive control of the defendant; (3) it must not have been due to any
voluntary action or contribution on the part of the plaintiff; and (4) evidence of the
true explanation of the event must be more readily accessible to the defendant than
to the plaintiff. Woodard v Custer, 473 Mich 1, 7; 702 NW2d 522 (2005).
M Civ JI 30.30 Vicarious Liability of Hospital. M Civ JI 30.30, relating to vicarious
tort liability based on ostensible agency, provides: “A hospital is not generally
responsible for the professional negligence of a physician who has staff privileges
at the hospital but is not an agent or employee of the hospital. However, a hospital
may be liable for the professional negligence of a physician if the hospital through
its words, conduct, or omissions caused [Plaintiff] to reasonably believe that the
physician was an employee or agent of the hospital. In order to establish the liability
of the hospital under this theory, the plaintiff has the burden of proof on each of the
following: That [Defendant] committed professional negligence in one or more of
the ways claimed by the plaintiff; That [Plaintiff] sustained injury and damages; That
the professional negligence of [Defendant] was a proximate cause of the [Plaintiff’s]
injuries and damages; That [Plaintiff] reasonably believed that the [Defendant] was
acting as an agent or employee of the hospital; That [Plaintiff] belief that the
[Defendant] was an agent or employee of the hospital was created by words,
conduct, or omissions of the hospital. Your verdict will be for the plaintiff if you find
that all of these elements have been proved. Your verdict will be for the defendant
if you find that any one of these elements has not been proved.”
I.
Supplemental & Non Standard Jury Instructions
Non Standard Instructions Generally. When the Model Jury Instructions do not
adequately address an issue, the trial court is obligated to give requested
supplemental instructions if the proposed instructions properly inform the jury of the
applicable law and are supported by the evidence. Burnett v Bruner, 247 Mich App
365, 375; 636 NW2d 773 (2001). However, MCR 2.516(3) provides that when a
standard jury instruction committee recommends that no instruction be given, the
court shall not give an instruction unless it specifically finds, for reasons stated on
the record, that a) the instruction is necessary to state the applicable law accurately,
and b) the matter is not adequately covered by other pertinent standard jury
instructions. The determination whether special instructions are applicable and
accurate is within the trial court’s discretion. A supplemental instruction must be
modeled as nearly as practicable after the style of the Standard Jury Instructions.
It must be concise, understandable, conversational, un-slanted, and nonargumentative.” Stoddard v Manufacturers Nat’l Bank of Grand Rapids, 234 Mich
App 140, 162-3, 593 NW2d 630 (1999). Bordeaux v Celotex Corp, 203 Mich App
158, 169, 511 NW2d 899 (1993). Vogler v Henry Ford Hospital, 433 Mich 862, 444
NW2d 526 (1989). Jones v Porretta, 428 Mich 132, 405 NW2d 863 (1987). Strach
v St. John Hospital, 160 Mich App 251, 408 NW2d 441 (1987). Beadle v Allis, 165
Mich App 516, 418 NW2d 906 (1987). Mitchell v Gonzalez, 54 Cal 3d 1041, 819
P2d 872 (1991).
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M Civ JI 4.12 “Missing” Records Instruction. M Civ JI 4.12 recommends that no
instruction be given relating to hospital business records. M Civ JI 6.01 covers an
adverse inference from the failure to produce evidence or a witness. In Siirila v
Barrios, 398 Mich 576; 248 NW2d 171 (1976), the Michigan Supreme Court held
that the trial judge properly refused to give an instruction that the jury may consider
as evidence the absence of an entry in the record. Powell v St. John Hospital, 241
Mich App 64, 614 NW2d 666 (2000). Generally, a party’s failure to produce material
evidence under its control, where no reasonable excuse is given, permits an
inference that the evidence would have been adverse to that party. Botsford
General Hosp v Citizens Ins Co, 195 Mich App 127, 144-145; 489 NW2d 137
(1992). The inference is not mandatory, and the fact finder is not required to draw
it. Brenner v Kolk, 226 Mich App 149, 155-156; 573 NW2d 65 (1997). M Civ JI
6.01(c). An inference may only be drawn when: “(1) the evidence was under the
party’s control and could have been produced; (2) the party lacks a reasonable
excuse for its failure to produce the evidence; and (3) the evidence is material, not
merely cumulative, and not equally available to the other party.” Ward v
Consolidated Rail Corp, 472 Mich 77, 85-86; 693 NW2d 366 (2005). Intentional
destruction of relevant evidence creates a presumption that the evidence was
adverse to that party. Lagalo v Allied Corp, 233 Mich App 514, 520-521, 592 NW2d
786 (1999). Brenner v Kolk, 226 Mich App 149, 155-156, 573 NW2d 65 (1997). A
presumption against one who intentionally destroyed evidence does not relieve a
party with the burden of proof from introducing evidence to prove the case. Trupiano
v Cully, 349 Mich 568, 570; 84 NW2d 747 (1957).
Lost Opportunity to Survive or Achieve Better Result Instruction. The standard
Michigan jury instruction for a lost opportunity to survive, M Civ JI 30.20, is only
applicable to claims arising before April 1994. Yet, MCL 600.2912a(2), the Michigan
“Codified Burden of Proof” statute requires a plaintiff to show that the loss of the
opportunity to survive or achieve a better result exceeded fifty percent. Fulton v
William Beaumont Hosp, 253 Mich App 70; 655 NW2d 569 (2002). A proposed jury
instruction, modified Pursuant to MCL 600.2912a(2) and taken word for word from
the statute, would read: M Civ JI 30.20 Medical Malpractice: Loss of Opportunity to
Survive: “In an action alleging medical malpractice, the plaintiff cannot recover for
loss of an opportunity to survive or an opportunity to achieve a better result unless
the opportunity was greater than 50%.”
Exceptions to Cap Instruction. There is no standard instruction covering the noneconomic damages cap, and its exceptions. The following instruction covers the
statutory criteria to determine whether the higher or lower cap will apply:
“On the special verdict form that will be furnished to you by the court,
you will be asked to answer certain questions, such as whether:
a.
b
Plaintiff has suffered an Injury to the brain or spinal cord
causing paraplegia, hemiplegia or quadriplegia,
Plaintiff is so cognitively impaired as to be permanently
incapable of making independent life decisions and
performing the activities of daily living,
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c.
Plaintiff has suffered a permanent loss or damage to a
reproductive organ causing inability to procreate.
Your answer to these questions will assist the court in entering a
judgment after you have returned your verdict.” M Civ JI 30.10; MCL
600.1483(1)(a).
Substantial Factor Instruction. “When a number of factors contribute to produce
an injury, a defendant’s conduct will not be considered a proximate cause of the
harm unless it was a substantial factor in producing the injury.”
J.
Forms of Verdict
Itemization of Damages. MCL 600.6305(1) requires all verdicts or judgments by
a trier of fact in a personal injury action to include specific findings on:
a)
b)
Past economic and non-economic damages,
Future damages, and how long they will continue, determined
annually, for:
1)
Medical and health care costs,
2)
Lost wages or earnings or lost earning capacity, and
3)
Non-economic loss.
151
152
XIII.
Post Trial Proceedings
________________________
A.
B.
C.
D.
E.
F.
Post Trial Motions
Taxation of Costs
Judgments
Contribution
Execution of Judgments
Relief from Judgment or Order
__________________________
A.
Post Trial Motions
Post Trial Generally. After a trial is over, many matters remain for the trial court
to consider, including whether the verdict was supported by sufficient evidence, and
whether the prevailing party is entitled to certain costs and attorney’s fees. Within
21 days, a losing party may file an appeal as of right in the Court of Appeals.
Motion for Judgment Notwithstanding the Verdict. A motion for a judgment
notwithstanding the verdict should be granted only when the evidence, viewed in the
light most favorable to the nonmoving party, is insufficient to create an issue for the
jury and fails to establish a claim as a matter of law. Forge v Smith, 458 Mich 198,
204; 580 NW2d 876 (1998). Badalamenti v Beaumont Hosp, 237 Mich App 278,
284; 602 NW2d 854 (1999). Pontiac School Dist v Miller, Canfield, Paddock &
Stone, 221 Mich App 602, 612, 563 NW2d 693 (1997). Nicholson v Childrens’
Hospital of Michigan, 139 Mich App 434; 363 NW2d 1 (1984).
Motion for Case Evaluation Sanctions. MCR 2.403, relating to case evaluation
sanctions, applies to unanimous case evaluations. It allows mandatory recovery of
reasonable attorney’s fees determined by the court against parties who reject a
case evaluation award. MCL 600.6013(8) provides for judgment interest on attorney
fees and costs ordered as case evaluation sanctions under MCR 2.403(O) from the
time of the filing of the complaint against the defendant. Ayar v Foodland
Distributors, 472 Mich 713; 698 NW2d 875 (2005).
Motion for Offer of Judgment Sanctions. A request for costs under MCR
2.405(D) must be filed and served within 28 days after the entry of the judgment or
entry of an order denying a timely motion for a new trial or to set aside the
judgment. Kopf v Bolser, 286 Mich App 425, 780 NW2d 315 (2009). In the interest
of justice, the court may refuse to grant attorney fees under the offer of judgment
rule, but a party’s inability to pay is insufficient to justify a denial of fees. Derderian
v Genesys Health Care Systems, 263 Mich App 364, 374; 689 NW2d 145 (2004).
Castillo v Exclusive Builders, Inc, 273 Mich App 489, 492; 733 NW2d 62 (2007).
Knue v Smith, 269 Mich App 217, 220; 711 NW2d 84 (2005).
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Motion for Sanctions for Frivolous Suits. MCR 2.114(F) authorizes sanctions
for a frivolous claim. An attorney has a duty to conduct a reasonable inquiry into the
factual and legal viability of a pleading before it is signed. The reasonableness of
the inquiry is determined by an objective standard. Subjective good faith is
irrelevant. A claim is evaluated at the time of filing. The standard to determine the
timeliness of a motion for sanction where no time is stated, is whether it was filed
within a reasonable time once a prevailing party is determined. Seventy days is not
undue delay. In re Attorney Fees & Costs, 233 Mich App 694, 699-702; 593 NW2d
589 (1999). A trial court’s finding that an action is frivolous is reviewed for clear
error. The facts of the case determine whether a claim is frivolous. John J Fannon
Co v Fannon Products, LLC, 269 Mich App 169, 168; 712 NW2d 731 (2005).
Attorney General v Harkins, 257 Mich App 564, 575-576; 669 NW2d 296 (2003).
If the Court finds an action or defense to be frivolous, it may order actual costs
against both the party and/or the party’s attorney. “Frivolous” means the primary
purpose was to harass, embarrass or injure the prevailing party, the party had no
reasonable basis to believe the facts underlying its case were true, or the party’s
legal position was devoid of arguable merit. MCL 600.2951. MCR 2.114(B)(E).
Lloyd v Avadenka, 158 Mich App 623 (1987). Antonow v Marshall, 171 Mich App
716 (1988). Jackson Hog Producers v Consumers Power Co, 234 Mich App 72, 91,
592 NW2d 112 (1999). Neither MCR 2.114, nor MCR 2.625(A)(2) require an award
of sanctions. Aldrich v Jordan, (Unpublished, November 18, 2004). Stamp v
Hagerman, 181 Mich App 332, 337; 448 NW2d 849 (1989). The Court must
consider the circumstances before imposing a dismissal. Zantop Int’l Airlines, Inc
v Eastern Airlines, 200 Mich App 344, 360, 503 NW2d 915 (1993). MCR 2.114(F)
refers to MCR 2.625(A)(2), which allows costs authorized under MCL 600.2591.
MCL 600.2591 authorizes reasonable costs and attorney fees to a prevailing party
on a frivolous claim. Under MCL 600.2591(3)(b), a “prevailing party” is a party who
wins on the entire record.
Motion for Judgment Notwithstanding the Verdict. In ruling on a motion for a
judgment notwithstanding the verdict (“JNOV”), the court must state the reasons for
the ruling in a signed order or opinion, or on the record. A motion for JNOV should
be granted only when there is insufficient evidence presented to create an issue for
the jury. MCR 2.610(B)(3). Merkur Steel Supply, Inc v Detroit, 261 Mich App 116,
123; 680 NW2d 485 (2004). Badalamenti v William Beaumont Hosp, 237 Mich App
278, 290-291, 602 NW2d 854 (1999). Forge v Smith, 458 Mich 198, 204, 580 NW2d
876 (1998). Pontiac School Distr v Miller, Canfield, Paddock & Stone, 221 Mich App
602, 612, 563 NW2d 693 (1997). Attard v Citizens Ins Co of America, 237 Mich App
311, 321, 602 NW2d 633 (1999). Farm Credit Services of Michigan’s Heartland,
PCA v Weldon, 232 Mich App 662, 672, 591 NW2d 438 (1998). Anton v State Farm,
238 Mich App 673; 607 NW2d 123 (1999). If the evidence is such that reasonable
jurors could disagree, JNOV is improper. Foreman v Foreman, 266 Mich App 132,
136; 701 NW2d 167 (2005). If there is competent evidence to support a verdict, the
court must defer judgment regarding credibility of witnesses. Allard v State Farm Ins
Co, 271 Mich App 394, 406-407; 722 NW2d 268 (2006).
Motion for New Trial. Pursuant to MCR 2.611, a motion for a new trial may be
filed within 21 days of entry of the final judgment. Arrington v Detroit Osteopathic
154
Hospital, 196 Mich App 544, 493 NW2d 492 (1992). A new trial may be granted for
irregularity in the proceedings by the court, the jury, or a prevailing party. MCR
2.611(A)(1)(a) and (b). Badalamenti v William Beaumont Hosp, 237 Mich App 278,
292; 602 NW2d 854 (1999). If the reasons for granting a new trial are legally
recognized and supported by a reasonable view of the record, the trial court may
grant a new trial. Petraszewsky v Keeth, 201 Mich App 535, 539, 506 NW2d 890
(1993). A decision to grant a new trial is reviewed for an abuse of discretion. Mahrle
v Danke, 216 Mich App 343, 351, 549 NW2d 56 (1996). The court may not
repudiate a jury verdict merely because it disbelieved a witness unless testimony
contradicts indisputable physical facts or laws, is patently incredible or defies
physical realities, or where a witness’s testimony is material and is so inherently
implausible that it could not be believed by a reasonable juror, or where the
witnesses testimony has been seriously impeached and the case marked by
uncertainties and discrepancies. Conflicting testimony alone, even if impeached,
is not sufficient grounds for a new trial. Issues of witness credibility and questions
of fact are questions best resolved by the jury and should not be usurped by the trial
court. People v McCray, 245 Mich App 631, 638; 630 NW2d 633 (2001). Moore v
Detroit Entertainment, LLC, 279 Mich App 195, 202; 755 NW2d 686 (2008). People
v Lemmon, 456 Mich 625, 576 NW2d 129 (1998). The trial court must consider
whether the overwhelming weight of the evidence favored the losing party. The trial
court should not substitute its judgment unless the record reveals that the evidence
preponderated so heavily against the verdict that it would be a miscarriage of justice
to allow the verdict to stand. Campbell v Sullins, 257 Mich App 179; 667 NW2d 887
(2003). A jury’s verdict is to be upheld, even if arguably inconsistent, if there is any
logical interpretation of the evidence which supports the jury’s findings. Bean v
Directions Unlimited, Inc., 462 Mich 24, 609 NW2d 567 (2000). A new trial solely on
the issue of damages alone is permissible when liability is clear. Lagalo v Allied
Corp (On Remand), 233 Mich App 514, 523, 592 NW2d 786 (1999). A decision to
grant a motion for a new trial is discretionary. The trial court should not substitute
its judgment for the jury’s unless the verdict was secured by improper methods,
prejudice, or sympathy. A jury’s verdict should not be set aside if there is competent
evidence to support it. Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 498;
668 NW2d 402 (2003). Petraszewsky v Keeth, 201 Mich App 535, 539; 506 NW2d
890 (1993). Vargo v Denison, 140 Mich App 571, 573; 364 NW2d 376 (1985).
Benmark v Steffen, 9 Mich App 416, 422; 157 NW2d 468 (1968). In re Ayres, 239
Mich App 8, 23, 608 NW2d 132 (1999). A jury may disbelieve the most positive
evidence, even when uncontradicted. The judge cannot take from them their right
of judgment. Woodin v Durfee, 46 Mich 424, 427; 9 NW 457 (1881). Collier v Danny
Kaplan, DPM, (Unpublished, February 15, 2005). A motion for a new trial to submit
to the jury previously unadmitted evidence requires a showing of substantial
prejudice. It must appear that the evidence must have been, or in fact was,
considered by the jury in reaching their verdict. People v McCrea, 303 Mich 213,
266; 6 NW2d 489 (1942). Mays v Schell, 268 Mich App 432, 706 NW2d 892 (2005),
rev’d on other grounds 474 Mich 1109, 711 NW2d 381 (2006).
Misconduct as Grounds for New Trial. A lawyer is expected to advocate
vigorously, but the parties are entitled to a fair trial uninfluenced by appeals to
passion or prejudice. Many improper comments or improperly admitted items of
155
evidence are curable through proper instructions to disregard them. However,
repeated misconduct at trial, or grievously prejudicial comments, may be incurable
and require a new trial. Witnesses should not be subjected to personal attacks and
unsubstantiated insinuations. Wischmeyer v Schanz, 449 Mich 469, 481, 536 NW2d
760 (1995). Wayne Co Rd Comm v GLS LeasCo, 394 Mich 126, 134, 229 NW2d
797 (1975). Counsel may not seek to “divert the jurors’ attention from the merits of
the case and to inflame the passions of the jury.” Badalamenti v William Beaumont
Hosp, 237 Mich App 278, 292; 602 NW2d 854 (1999). A new trial may be granted
on the basis of an excessive verdict if the verdict was obtained by improper
methods, was the result of sympathy or prejudice, or if it was clearly or grossly
inadequate or excessive. Craig v Oakwood Hospital, 249 Mich App 534, 566, 643
NW2d 580 (2002). MCR 2.611(A)(1). MCL 600.6098(2)(b)(iv) and (v). Improper
comments and offers of evidence are often curable by instructions to disregard
them, but repeated attorney misconduct during trial, or grievously prejudicial
comments, may require a new trial. Repeated references to a corporation as rich,
greedy and unfeeling has been held to require a new trial. References to “million
dollar awards” may also require a new trial. Reetz v Kinsman Marine Transit Co,
416 Mich 97, 102-103; 330 NW2d 638 (1982), overruled on other grounds by
Robinson v Detroit, 462 Mich 439; 613 NW2d 307 (2000). Shemman v American
Steamship Co., 89 Mich App 656, 666-671; 280 NW2d 852 (1979). Arrington v
Detroit Osteopathic Hospital, 196 Mich App 544, 493 NW2d 492 (1992). Repeated
emphasis and injection of irrelevant information about plaintiff’s psychotic behavior
which was irrelevant, highly prejudicial, and designed to inflame and prejudice the
jurors, and distract them from the issues, warranted a new trial. Halverson v Garrett,
(Unpublished, March 13, 2001). When reviewing claims of attorney misconduct,
“‘the appellate court should first determine whether or not the claimed error was in
fact error and, if so, whether it was harmless.’” Rogers v Detroit, 457 Mich 125, 147;
579 NW2d 840 (1998). “While a lawyer is expected to advocate his client’s cause
vigorously, ‘parties are entitled to a fair trial on the merits of the case, uninfluenced
by appeals to passion and prejudice.’” Wayne Co Bd of Rd Commr’s v GLS LeasCo,
Inc, 394 Mich 126, 131; 229 NW2d 797 (1975). Gilbert v DaimlerChrysler Corp, 470
Mich 749, 770-778; 685 NW2d 391 (2004).
Appeals to Prejudice, Incitement of Jury. Repeated references to a corporate
defendant as rich, greedy and unfeeling warrants a new trial. References to million
dollar awards in other cases may require a new trial. Accusations, allegations, and
insinuations with no reasonable basis in evidence used to divert the jury from the
merits, and inflame the passions of the jury, are completely improper and if
egregious enough, require a new trial. A deliberate strategy to incite the jurors to
punish defendant for claimed bigotry, rather than to carefully consider the facts, may
be grounds for a mistrial and is improper. Regularly accusing witnesses of
fabricating testimony or “making up” testimony is improper. Counsel may not belittle
witnesses or make unsubstantiated accusations that a witness is lying. Repeated
claims that opposing counsel is “lying” or “misrepresenting” something or “making
things up” are completely improper. Reetz v Kinsman, 416 Mich 97, 104-6 (1982).
Shemman v American Steamship, 89 Mich App 656, 666-671, 280 NW2d 852
(1979). Kern v St Luke’s Hospital Ass’n of Saginaw, 404 Mich 339, 273 NW2d 75
(1978). Wayne Co Bd of Road Comm’rs v GLS LeasCo, 394 Mich 126, 229 NW2d
156
797 (1975). Joba Construction Co, Inc v Burns & Roe Inc, 121 Mich App 615, 637,
329 NW2d 760 (1982). Badalamenti v William Beaumont Hosp, 237 Mich App 278,
290-291, 602 NW2d 854 (1999). Powell v St. John Hospital, 241 Mich App 64, 614
NW2d 666 (2000). The issue of organ donation, and a poem read about same, is
improper and not relevant to any damages allowed in a Wrongful Death case. It
improperly invoked sympathy from the jury, requiring a new trial. Porter v Northeast
Guidance Center, Inc., (Unpublished, October 5, 2001).
Judicial Discretion. A court abuses its discretion when an unprejudiced person
considering the facts would say that there was no justification or excuse for the
ruling made. Gilbert v DaimlerChrysler Corp, 470 Mich 749, 761; 685 NW2d 391
(2004). Wiley v Henry Ford Cottage Hosp, 257 Mich App 488, 498; 668 NW2d 402
(2003). Alken-Ziegler, Inc v Waterbury Headers Corp, 461 Mich 219, 227; 600
NW2d 638 (1999). People v Hendrickson, 459 Mich 229, 235; 586 NW2d 906
(1998). The refusal of the court to admit documents into evidence does not require
reversal unless the error substantially prejudiced a party’s case. Phillips v Deihm,
213 Mich App 389, 402-403; 541 NW2d 566 (1995). Beasley v Washington, 169
Mich App 650, 660; 427 NW2d 177 (1988). Eley v Turner, 155 Mich App 195, 200;
399 NW2d 28 (1985).
Motion for Remittitur or Additur. The amount of damages to be awarded is
generally within the sound discretion of the trier of fact. However, if an award is so
high or low as to be outside the realm of reason, the court may order a new trial
unless, within 14 days, the non-moving party consents to entry of a judgment found
by the court to be the lowest or highest amount supported by the evidence. The
court is to look for evidence that the jury was swayed by improper factors such as
passion, prejudice, partiality, sympathy or mistake. MCR 2.611(E). Precopi v Detroit
Department of Transportation, 415 Mich 457 (1982). Arnold v Darczy, 208 Mich App
638, 639, 528 NW2d 199 (1995). Palenkas v Beaumont Hospital, 432 Mich 527,
443 NW2d 354 (1989). May v William Beaumont Hospital, 180 Mich App 728, 448
NW2d 497 (1989). Strach v St. John Hospital, 160 Mich App 251. 408 NW2d 441
(1987). Granting additur is discretionary, but the court has no authority to simply
add to the verdict. Meek v Department of Transportation, 240 Mich App 105, 122,
610 NW2d 250 (2000). Taylor v Manning, 456 Mich 882, 570 NW2d 661 (1997). A
jury need not award an amount of damages, even if liability is found. Assessing
credibility and weighing testimony is the prerogative of the trier of fact. Kelly v
Builders Square, Inc, 465 Mich 29, 39-40; 632 NW2d 912 (2001). If the nonmoving
party does not consent to the additur amount, the only relief available to the moving
party is for the trial court to grant a motion for new trial in the alternative. Galvan
v Summers, 375 Mich 285, 286, n 1; 134 NW2d 177 (1965). Chapin v Bechler, 103
Mich App 629, 635; 303 NW2d 46 (1981). A decision on additur will be reversed
only for abuse of discretion. Joerger v Gordon Food Service, Inc, 224 Mich App
167, 172, 568 NW2d 365 (1997). Setterington v Pontiac General Hospital, 223 Mich
App 594, 608, 568 NW2d 93 (1997).
B.
Taxation of Costs
Bill of Taxable Costs. MCR 2.625 creates a ministerial procedure for a prevailing
party to tax costs in a civil action. MCR 2.625(G), provides that an itemized bill of
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costs, verified by an affidavit stating that each item is correct, was necessarily
incurred, and that the services were actually performed, may be submitted to the
court withing 28 days of the entry of a final judgment. If witness fees are claimed,
the affidavit must state the distance traveled, the days incurred and the days trial
was actually attended. MCR 2.625(G)(3) does not require that any particular person
provide the affidavit. Issa v Garlinghouse, 133 Mich App 579, 349 NW2d 527
(1984). Fairway, Inc. v Na-Churs Co., 163 Mich App 497, 415 NW2d 257 (1987).
MCR 2.403. MCR 2.625(A). Peters v Gunnell, Inc, 253 Mich App 211, 225; 655
NW2d 582 (2002). The bill of costs must be served on the other parties. A failure
to timely present a bill of costs constitutes a waiver of the right to costs.
Taxable Costs Generally. MCL 600.2405(6) allows certain costs to a prevailing
party at trial. A bill of taxable costs and fees must be filed within a “reasonable”
time after the prevailing party is determined. Issa v Garlinghouse, 133 Mich App
579, 349 NW2d 527 (1984). Fairway, Inc. v Na-churs Co., 163 Mich App 497, 415
NW2d 257 (1987). Statutory law allows the following expenses to a prevailing party:
1.
2.
3.
4.
5.
6.
Proceedings before trial: $20.00.
Trial: $30.00. MCL 600.2441(2)(a)-(c);
Reasonable and actual fees for depositions read at trial. MCL 600.2549;
The fees of officers, witnesses, or other persons, unless a contrary
intention is stated; MCL 600.2405;
Reasonable expert witnesses expenses determined by the Court. MCL
600.2164(1). MCL 600.2421(b)(1)(a). The court must permit an expert fee
higher than the usual lay witness fee;
Attorney fees authorized by statute or court rule. MCL 600.2405(6).
MCR 2.403; MCR 2.405;
Expert Witness Preparation. MCL 600.2164 permits taxation of fees for an expert
who “is to appear, or has appeared” before the court. Regardless whether an expert
testifies, the prevailing party may recover fees for an expert’s trial preparation. Miller
Bros v Dep’t of Natural Resources, 203 Mich App 674, 691; 513 NW2d 217 (1994).
Herrera v Levine, 176 Mich App 350, 357-358; 439 NW2d 378 (1989). Peterson v
Fertel, 283 Mich App 232; 770 NW2d 47 (2009). Elia v Hazen, 242 Mich App 374,
379; 619 NW2d 1 (2000). Fees for witnesses who did not testify at trial, or if their
deposition is not read at trial,are not taxable. Put v FKI Industries, Inc, 222 Mich App
565, 573; 564 NW2d 184 (1997). Portelli v I R Constr Products Co, Inc, 218 Mich
App 591, 605; 554 NW2d 591 (1996). Conferences with counsel for education,
strategy sessions, and critical assessment of an opposing party’s position are not
taxable. Detroit v Lufran Co, 159 Mich App 62, 67; 406 NW2d 235 (1987). MCL
600.2164(1). MCL 600.2421(b)(1)(a). Michigan Citizens for Water Conservation v
Nestle Waters North America, Inc, 269 Mich App 25, 107-8; 709 NW2d 174 (2005).
Trial Transcripts. Trial transcripts are taxable costs on appeal under MCL
600.2543 and MCR 7.219(F)(3), but not as as a prevailing party at trial. DeWald v
Isola (After Remand), 188 Mich App 697, 703; 470 NW2d 505 (1991).
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Fees Not Recoverable Unless Authorized by Statute or Rule. Michigan follows
the “American rule” with respect to attorney fees and costs. Under that rule, attorney
fees generally are not recoverable from the losing party as costs in the absence of
an exception set forth in a statute or court rule expressly authorizing such an award.
Dessart v Burak, 470 Mich 37, 42; 678 NW2d 615 (2004). Attorney fees are not
recoverable unless they are expressly allowed by statute or court rule. Spectrum
Health v Grahl, 270 Mich App 248, 252-253; 715 NW2d 357 (2006). The decision
to award attorney fees and the reasonableness of an attorney fee award are
reviewed for an abuse of discretion. Taylor v Currie, 277 Mich App 85, 99; 743
NW2d 571 (2007).
Motion for Costs & Fees as Case Evaluation Sanctions. A motion for costs
under the case evaluation rule may be filed within 28 days of the entry of judgment
or an order denying a new trial. MCR 2.403(O)(8). Butt v Giammariner, 173 Mich
App 319, 433 NW2d 360 (1988). MCR 2.403(O), provides that if a party has
rejected an evaluation actual costs are mandatory unless the verdict is more
favorable to the rejecting party than the case evaluation. Great Lakes Gas
Transmission Ltd Partnership v Markel, 226 Mich App 127, 130; 573 NW2d 61
(1997). Actual costs, including attorney fees, are awarded even where both parties
have rejected the award. Haliw v City of Sterling Heights (On Remand), 266 Mich
App 444, 451; 702 NW2d 637 (2005). Zalut v Andersen & Assocs Inc, 186 Mich App
229, 232-234; 463 NW2d 236 (1990). A “verdict” for the purpose of the rule also
includes a judgment entered as a result of a ruling on a motion after a rejection of
the case evaluation. Actual costs are (a) those costs taxable in any civil action, and
(b) a reasonable attorney fee based on a reasonable hourly or daily rate as
determined by the trial judge for services necessitated by the rejection of the case
evaluation. MCR 2.403(O)(6). Badiee v Brighton Area Sch, 265 Mich App 343, 376;
695 NW2d 521 (2005). Forest City Enterprises, Inc v Leemon Oil Co, 228 Mich App
57, 81, 577 NW2d 150 (1998). Reimbursement of reasonable costs and fees under
MCL 600.2164. MCR 2.403(O) is not discretionary. Elia v Hazen, 242 Mich App 374,
619 NW2d 1 (2000). Haliw v Sterling Heights (On Remand), 266 Mich App 444,
447; 702 NW2d 637 (2005). Allard v State Farm Ins Co, 271 Mich App 394; 722
NW2d 268 (2006). Attorney fees incurred prior to the time for accepting an award
are not taxable, nor are expenses for demonstrative evidence. Taylor v Anesthesia
Assoc. of Muskegon, P.C., 179 Mich App 384, 445 NW2d 525 (1989). Joerger v
Gordon Food Service, Inc, 224 Mich App 167, 178-179, 568 NW2d 365 (1997).
Taylor v Anesthesia Associates of Muskegon, 179 Mich App 384, 445 NW2d 525
(1989). A judgment entered as a result of a settlement between the parties is not
a “verdict.” A settlement agreement that resulted in a judgment or a stipulated order
of dismissal is not a verdict. Jerico Construction, Inc v Quadrants, Inc, 257 Mich
App 22; 666 NW2d 310 (2003). Hoye v DMC/WSU, (Unpublished, January 28,
2010). A prevailing party who rejects an award may still recover costs and fees.
Zalut v Andersen & Assoc, Inc, 186 Mich App 229, 232-234; 463 NW2d 236 (1990).
MCL 600.4901-4923. A verdict is “adjusted” by adding assessable costs incurred
from the filing of the action to the date of the case evaluation, as well as interest for
that same period. Dessart v Burak, 470 Mich 37, 42; 678 NW2d 615 (2004). After
this calculation is made, if sanctions are appropriate under the ten percent
calculation of sub-rule (O)(3), the payment of “actual costs,” as defined in sub-rule
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(O)(6), must be ordered. If the evaluation was zero, a verdict finding the defendant
not liable is deemed more favorable to the defendant. Set-offs for other settlements
are not included in the “adjusted verdict.” MCR 2.403(O)(3). Cheron, Inc., v Don
Jones, Inc. 244 Mich App 212, 625 NW2d 93 (2000). Meyer v Center Line, 242 Mich
App 560, 577, 619 NW2d 182 (2000). MCR 2.403(O) allows sanctions to be entered
after appellate reversal of a verdict if the final result is no longer favorable to that
party. Keiser v Allstate Ins Co, 195 Mich App 369, Hyde v University of Michigan Bd
of Regents, 226 Mich App 511, 526, 575 NW2d 36 (1997). MCL 600.6013(8),
provides for judgment interest on attorney fees and costs ordered as mediation
sanctions from the date of the filing of the complaint. The statute provides no
special treatment for judgment interest on mediation sanctions. Ayar v Foodland
Distributors, 472 Mich 713; 698 NW2d 875 (2005).
Sanctions for Summary Disposition Prior to Trial. If defendant obtains summary
disposition after case evaluation, the judgment is a “verdict” for the purpose of
sanctions and actual costs and fees may be available. Herrera v Levine, 176 Mich
App 350, 439 NW2d 378 (1989). MCR 2.403(O)(2)(c). When the right to costs
arises from summary disposition, however, MCR 2.403(O)(11) allows the trial court
to refuse an award “in the interests of justice.” The circumstances necessary for the
“interest of justice” exception may include cases where a legal issue of first
impression is presented, where the law is unsettled and substantial damages are
at issue, where a party is indigent and an issue merits decision by a trier of fact,
and where the effect on third persons may be significant. Luidens v 63rd Dist Court,
219 Mich App 24, 33-34, 37; 555 NW2d 709 (1996) Haliw v City of Sterling Heights,
257 Mich App 689, (2003). Haliw v City of Sterling Heights (On Remand), 266 Mich
App 444, 447-450; 702 NW2d 637 (2005). Luidens v 63rd Dist Court, 219 Mich App
24, 31; 555 NW2d 709 (1996). Great Lakes Gas Transmission Ltd Partnership v
Markel, 226 Mich App 127, 129-130; 573 NW2d 61 (1997). If the court does not
indicates the basis for denying costs and fees, and none is apparent, the denial is
an abuse of discretion. Spears v Ceriotti, (Unpublished, November 17, 2005). The
term “verdict” includes a ruling on a motion for reconsideration where it is also a
judgment finally determining the rights and obligations of the parties in a case.
Peterson v Fertel, 283 Mich App 232; 770 NW2d 47 (2009) (April 9, 2009).
Sanctions after Directed Verdict at Trial. Where a defendant accepts a Case
Evaluation award rejected by plaintiff, and a directed verdict is later granted, it is a
“verdict” and Case Evaluation sanctions apply. Further, if a motion for directed
verdict is denied, but granted on appeal, Case Evaluation sanctions are allowed.
Keisor v Allstate Insurance Co., 195 Mich App (1992).
Sanctions after Arbitration. MCR 3.602 provides that an arbitrator’s compensation
is a taxable cost. Where a contractual agreement to arbitrate allows for case
evaluation sanctions, the costs of the arbitration were a proper part of the “actual
costs” recovered, even though the award was not unanimous. Cusumano v Velger,
264 Mich App 234, 235; 690 NW2d 309 (2004). But, in St. George Greek Orthodox
Church v Laupmanis Associates, 204 Mich App 278; 514 NW2d 516 (1994), where
a contract required disputes to be resolved through arbitration, sanctions under
MCR 2.403 were held improper where the court merely entered an order confirming
the arbitration award.
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Exception to Right to Case Evaluation Sanctions. MCR 2.403(O)(11) allows a
trial court to refuse to award actual costs to a prevailing party “in the interests of
justice” when the verdict was entered as a result of a motion. The trial court must
state why the “interest of justice” will be served. Luidens v 63rd District Court, 219
Mich App 24, 31-32; 555 NW2d 709 (1996). Hamilton v Becker Orthopedic
Appliance Co, 214 Mich App 593, 597; 543 NW2d 60 (1995). MCR 2.403(O)(5)
makes an award of sanctions discretionary if the verdict includes equitable relief.
Equitable relief is nonmonetary, such as an injunction or specific performance, or
a setoff. Walker v Farmers Ins Exch, 226 Mich App 75, 79; 572 NW2d 17 (1997).
Case Evaluation Sanctions Do Not Include Cost of Appeal. A party may not
recover the costs of an appeal under the case evaluation rule. Appellate fees and
costs are covered under appellate procedure in chapter seven of the Michigan Court
Rules. American Casualty v Costello, 174 Mich App 1, 435 NW2d 760 (1989).
Keiser v Allstate, 195 Mich App 372, 374 (1992). Haliw v Sterling Hgts, 471 Mich
700, 704; 691 NW2d 753 (2005).
Motion for Costs & Fees Under the Offer of Judgment Rule. A motion for costs
MCR 2.405 must be filed within 28 days after the entry of the judgment or motion
for new trial or JNOV. Kopf v Bolser, 286 Mich App 425; 780 NW2d 315 (2009).
Offer of Judgment rule sanctions are similar to case evaluation sanctions, but the
court has more discretion. Costs and fees are not be allowed for offers served after
Case Evaluation unless the award was non-unanimous. If an “adjusted verdict” (the
verdict plus costs and interest from the date of filing) is more favorable to the offeror
than the “average offer,” the offeror can recover actual costs from the date the offer
was made. Fees may be denied in the interests of justice, but allowing them is the
general rule. A denial of fees may not be based upon a “reasonable” rejection of
the offer of judgment amount. Rather, unusual circumstances must be found. The
“interest of justice” exception should be applied only in unusual circumstances and
must not be read to effectively nullify the general rule favoring the award of offer of
judgment sanctions.” Stitt v Holland Abundant Life Fellowship (On Remand), 243
Mich App 461, 471; 624 NW2d 427 (2000). MCR2.405(A)(6). Miller v Meijer, Inc.,
219 Mich App 476, 480 (1996). Luden’s v 63rd District Court, 219 Mich App 24,3233 (1996). Gudewicz v Matt’s Catering, 188 Mich App 639, 645 (1991). Butzer v
Camelot Hall, 201 Mich App 275 (1993). Sanders v Monical Machinery, 163 Mich
App 689, 415 NW2d 276 (1987). Transportation Department v Dyl, 177 Mich App
33, 441 NW2d 18 (1989).
Concurrent Statutory Right to Fees. Where a statute also allows fees in a case
where case evaluation sanctions also apply, recovery under both may be allowed,
but only if different policies are served by the statutory provision. Recovery is
otherwise allowed only to the full amount of reasonable costs and fees actually
incurred. If a prevailing party has already been fully reimbursed under a statutory
right, no “actual costs” remain to be reimbursed under case evaluation rule
sanctions. McAuley v General Motors Corp, 457 Mich 513, 519-21, 578 NW2d 282
(1998). Rafferty v Markovitz, 461 Mich 265, 272-273, n 6, 602 NW2d 367 (1999).
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Determining a Reasonable Attorney Fee. A trial court’s award of “reasonable”
attorney fees as part of case-evaluation sanctions under MCR 2.403(O) is to be
calculated by means of the factors listed in Wood v Detroit Automobile Inter-Ins
Exch, 413 Mich 573; 321 NW2d 653 (1982), and Rule 1.5(a) of the Michigan Rules
of Professional Conduct. A reasonable fee is to be set based upon the complexity
of the case, the experience of the attorney, and the length of relationship with the
client. The court should also consider the professional standing and experience of
the attorney, the skill, time and labor involved, the amount in question and the
results achieved, the difficulty of the case, the expenses incurred, and the nature
and length of the professional relationship with the client. MRCP 1.5(a) provides the
following criteria: (1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal service properly; (2)
the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer; (3) the fee customarily
charged in the locality for similar legal services; (4) the amount involved and the
results obtained; (5) the time limitations imposed by the client or by the
circumstances; (6) the nature and length of the professional relationship with the
client; (7) the experience, reputation, and ability of the lawyer or lawyers performing
the services; and (8) whether the fee is fixed or contingent. The trial court should
calculate a reasonable fee by determining factor three under MRPC 1.5(a), the
reasonable hourly or daily rate customarily charged in the locality for similar legal
services, using reliable surveys or other credible evidence and then adjust the fee
in light of the factors listed in Wood, supra, and MRPC 1.5(a). The court should
make a record as to the factors used. Smith v Khouri, 481 Mich 519; 751 NW2d 472
(2008). Young v Nandi, 482 Mich 1007, 759 NW2d 351 (2008). John J Fannon Co
v Fannon Products, LLC, 269 Mich App 162, 171; 712 NW2d 731 (2005). A
determination of “a reasonable attorney fee” is reviewed for an abuse of discretion.
Maryland Casualty Co v Allen, 221 Mich App 26, 32; 561 NW2d 103 (1997). The
actual fee charged is not binding, but may be considered. A defense attorney may
recover an hourly rate greater than the rate charged as long as it is reasonable.
Singer v Sreenivasan, (Unpublished, September 1, 2009). Reasonable fees are not
the same as the actual fees charged. Zdrojewski v Murphy, 254 Mich App 50, 72;
657 NW2d 721 (2002). Cleary v Turning Point, 203 Mich App 208; 512 NW2d 9
(1993). Contingent fees are not allowed. Ghaffari v Turner, 259 Mich App 608
(2004). Zdrojewski v Beaumont Hospital, et al., 254 Mich App 50, 73; 657 NW2d
721, ( 2002). Cleary v The Turning Point, 203 Mich App 208, 211-212; 512 NW2d
9 (1994). Polen v Melonakos, 222 Mich App 20, 564 NW2d 467 (1997). The trial
court is in the best position to assess an attorney’s contribution, time and effort, skill
and reputation. Reynolds v Polen, 222 Mich App 20, 30; 564 NW2d 467 (1997). A
trial court’s award of costs and fees will stand if not “grossly violative of fact and
logic,” and does not indicate “perversity of will, passion or bias.” Elia v Hazen, 242
Mich App 374, 377, 619 NW2d 1 (2000). Michigan Basic Property Ins Ass’n v
Hackert Furniture, 486 NW2d 68 (1992).
Motion for Costs & Fees for Frivolous Lawsuit. If the Court finds that an action
or a defense was frivolous, it shall order payment of reasonable, actual costs
against the losing party and attorney. “Frivolous” means: 1) the primary purpose of
the action or defense was to harass, embarrass or injure the prevailing party, 2) the
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party had no reasonable basis to believe that the facts underlying its position were
true, and/or 3) the party’s legal position was devoid of arguable merit. Sanctions
may be also be awarded if there was no basis for naming a specific party. A
defendant must request sanctions prior to dismissal. MCL 600.2951; MCR
2.114(B)(E). Lloyd v Avadenka, 158 Mich App 623 (1987). Antonow v Marshall, 171
Mich App 716 (1988). MCR 2.625(A)(2). In re Costs & Attorney Fees, 250 Mich App
89, 94, 645 NW2d 697 (2002). If the court finds that an action or defense was
frivolous, sanctions are mandatory. Cvengros v Farm Bureau Ins, 216 Mich App
261, 268, 548 NW2d 698 (1996).
Affidavit of Merit Precludes Finding a Claim to be Frivolous. An affidavit of
Merit precludes sanctions for a frivolous action. Louya v William Beaumont Hosp.,
190 Mich App 151, 475 NW2d 434 (1991).
C.
Judgments
Judgment Form. MCL 600.6306 provides that following a verdict, the form of a
judgment shall be as follows:
1.
2.
3.
4.
5.
6.
7.
8.
All past economic damages, less collateral source payments,
All past non-economic damages,
All future economic damages, less medical and other health care
costs, and less collateral source payments determined to be
collectible reduced to gross present cash value. Gross present cash
value means the total amount of future damages reduced to present
value at a rate of 5% per year for each year in which those damages
accrue,
All future medical and other health care costs reduced to gross
present cash value,
All future non-economic damages reduced to gross present cash
value,
All taxable and allowable costs, including interest, as permitted,
The total judgment shall be reduced by the amount of the settlement
between plaintiff and any other joint tort-feasor(s); and
If the plaintiff was assigned a percentage of fault, the total judgment
shall be reduced by that percentage.
The amounts deducted shall be allocated proportionally between past and future
damages. MCL 600.6306.
Present Cash Value. MCL 600.6306(1)(c), (d), and (e) mandate that future
damage awards be reduced to “gross present cash value.” However, MCL 600.6311
does not apply to a plaintiff who is 60 years of age or older at the time of judgment.
The term “plaintiff,” as used in MCL 600.6311 refers, in a wrongful death action, to
the decedent’s age. Shinholster v Annapolis Hospital, 471 Mich 540; 685 NW2d 275
(2004). MCL 600.6306(3) provides that if the plaintiff was assigned a percentage
of fault, the total judgment shall be reduced, subject to MCL 600.2959, by the
percentage of plaintiff's fault. When reducing the judgment, the court shall
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determine the ratio of total past damages to total future damages and shall allocate
the amounts proportionally between the past and future damages. There is no
statutory authority requiring apportionment of the capped non-economic damages
between past and future damages.
Set Offs for Other Settlements In Joint Liability Cases. The total judgment is
reduced by the amount of any settlements between plaintiff and other joint tortfeasors. MCL 600.2925d.
Pre Judgment Interest. Pre-judgment interest is a discretionary element of
damages for the Jury to determine. Militzer v Kal-Die Casting, 41 Mich App 492,
496-7 (1972). M Civ JI 53.04. Pre-judgment Interest is calculated at 6-month
intervals from the date the Complaint is filed at a rate of 1% over the average
interest at auction of 5-year Treasury Notes during the six (6) months preceding
July 1 and January 1. Interest is compounded annually. Interest is not allowed on
future damages until after judgment.
Insurer not Liable for Pre Judgment Interest. An insurer is not responsible for
pre-judgment interest on a settlement absent an agreement to do so. Quarters v
MPMLC, 154 Mich App 593, 399 NW2d 46 (1986).
Post Judgment Interest. Post-judgment interest is statutory and mandatory.
Calculating interest on a verdict is a complex matter governed by MCL 600.6013.
MCL 600.6013(1) provides that interest on a money judgment is not allowed on
future damages from the date of filing the complaint to the date of entry of the
judgment. MCL 600.6013(8) provides that, except as otherwise provided, for
complaints filed on or after January 1, 1987, interest on a money judgment
recovered in a civil action is calculated at 6-month intervals from the date of filing
the complaint at a rate of interest equal to 1% plus the average interest rate paid
at auctions of 5-year United States treasury notes during the 6 months immediately
preceding July 1 and January 1, as certified by the state treasurer, and
compounded annually. Interest is calculated on the entire amount of the judgment,
including attorney fees and other costs. The amount of interest from which attorney
fees are paid is retained by the plaintiff, and not paid to the plaintiff’s attorney. MCL
600.6013(8) states generally that except as otherwise provided, for complaints filed
on or after January 1, 1987, interest on a money judgment is calculated at 6-month
intervals from the date of filing the complaint at a rate of interest equal to 1% plus
the average interest rate paid at auctions of 5-year United States treasury notes
during the 6 months immediately preceding July 1 and January 1, as certified by the
state treasurer, and compounded annually, according to this section. Interest is
calculated on the entire amount of the judgment, including attorney fees and other
costs. The amount of interest attributable to that part of the money judgment from
which attorney fees are paid is retained by the plaintiff, not the attorney. MCL
600.6013(9) provides that if a bona fide, reasonable written offer of settlement is
made by the party against whom the judgment is subsequently rendered and is
rejected by the plaintiff, the court shall order that interest is not allowed beyond the
date the bona fide, reasonable written offer of settlement is filed with the court. MCL
600.6013(11) provides that in a medical malpractice claim where the defendant
164
failed to allow access to medical records as required under section 2912b(5),
interest is calculated from the date notice was given under MCL 600.2912b to the
date of satisfaction of the judgment. MCL 600.6013(12) states that if the plaintiff
in a medical malpractice action failed to allow access to medical records as
required, the court shall order that interest be calculated from 182 days after the
date the complaint was filed to the date of satisfaction of the judgment. MCL
600.6013(13) states generally that if a bona fide, reasonable written offer of
settlement is made filed by a plaintiff and that offer is rejected, interest is calculated
from the date of the rejection of the offer to the date of satisfaction of the judgment
at a rate of interest equal to 2% plus the rate of interest allowed under subsection
(8). A bona fide, reasonable written offer of settlement that is not accepted within
21 days is rejected. A “bona fide, reasonable written offer of settlement” means,
with respect to an offer made by a defendant one that is not less than 90% of the
amount actually received by the plaintiff in the judgment. With respect to an offer
made by a plaintiff, a “bona fide, reasonable written offer of settlement” means an
offer not more than 110% of the actual judgment.
Right to Make Periodic Payments on Judgments. If future damages exceeds
$250,000, a defendant may satisfy, after costs and fees, future damages for a
plaintiff under age 60, by purchasing an annuity if: 1. The annuity price is equal to
100% of future damages, less an amount determined by multiplying the amount of
those damages by a percentage equal to the rate of prejudgment interest on the
date trial commenced, and 2. The contract is purchased from a life insurer
authorized to issue annuities under the Michigan Insurance Code. MCL 600.6307MCL 600.6311.
Structured Settlements. If the parties agree to structure future damages within
35 days of the entry of judgment, the Court shall implement it. If the parties do not
agree, the Court shall order a structured payment based upon a plan of either party.
Uniform Qualified Assignments. Defendant, or the liability insurer, remains the
ultimate obligee under an annuity unless a “qualified assignment” is made pursuant
to Section 130(c) of the Internal Revenue Code. Qualified assignments relieve a
defendant of further liability. MCL 600.6309; Internal Revenue Code, Section 130(c).
D.
Contribution
Contribution Rights Generally. The trier of fact shall, unless otherwise agreed,
include in the verdict the percentage of the total fault of all parties, excluding settled
parties, as to the Plaintiff’s claim. The right to contribution may be determined in the
existing action or in a separate action. The statute of limitations for bringing a
contribution claim is one year from the date of judgment. MCL 600.2925a; MCL
600.2925c; MCL 600.6304; Transportation Department v Thrasher, 196 Mich App
320, 322-3, 493 NW2d 457 (1992). New Hampshire Insurance Co. v Charlevoix
County Road Commission, 193 Mich App 613, 484 NW2d 752 (1992).
Case Evaluation Acceptance & Contribution. A settlement by acceptance of
a case evaluation award precludes a claim for contribution by a joint tortfeasor. MCL
600.2925a(3). Klawaiter v Reurink, 196 Mich App 263 (1992).
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Plaintiffs Comparatively at Fault. If plaintiff is comparatively at fault, all parties
bear a pro rata share of the judgment allocated to an uncollectible defendant.
Where all defendants are collectable and plaintiff is also at fault, no defendant must
pay more than the allotted percentage of fault. MCL 600.6304. If the plaintiff was
allocated fault, the judgment is reduced by that amount. The amount deducted is
allocated proportionately between past and future damages. MCL 600.6306.
Plaintiffs Not at Fault. If plaintiff is not at fault, all joint and several tort-feasors
are liable to plaintiff to satisfy a judgment regardless of their respective allocated
percentage of fault. A defendant’s remedy for having to pay an amount in excess
of the pro rata share is through seeking contribution. MCL 600.6304(3).
E.
Execution of Judgments
Recovery of Costs from the “Next Friend.” If a minor does not have a
conservator, the court shall appoint a next friend. The Next Friend is responsible for
the costs of the action.” MCR 2.201(E)(1)(b). MCL 600.2415. Next Friends have
historically been liable for all costs of litigation. Marquette Prison Warden v
Meadows, 114 Mich App 121, 123; 318 NW2d 627 (1982). Sick v Michigan Aid
Ass’n, 49 Mich 50, 52; 12 NW 905 (1882). Amwake v Mercy-Memorial Hosp, 92
Mich App 546, 550 n 2; 285 NW2d 369 (1979).
Recovery of Costs From Settlement Funds. The purpose of MCR 2.403 is to
place the burden of litigation costs on the party who demands a trial. Seeking costs
from settlement funds was inconsistent with the intent of the case evaluation rule.
Because a settlement is not a “verdict” subject to sanctions under MCR 2.403, it
would frustrate the intent of MCR 2.403 to allow a deduction against the settlement
for sanctions owed to a party who did not participate in the settlement. Estate of
Kitchen v Oakwood Hospital, (Unpublished, October 15, 2009).
Recovery of Costs from Codefendant Filing Notice of Nonparty Fault. A
defendant brought in to a case after a notice of non-party fault under MCR 2.112(K)
may not obtain costs under MCR 2.625 if summary disposition is granted because
such defendant is not a “prevailing party” under the court rule. Fansler v
Richardson, 266 Mich App 123, 126; 698 NW2d 916 (2005). A party is a prevailing
party only where they are also an “opposing party.” Whether a non-party becomes
a party defendant is within plaintiff’s discretion. MCR 2.112(K)(4). Rinke v
Potrzebowski, 254 Mich App 411, 416; 657 NW2d 169 (2002).
Recovery of Costs from an Intervening Lien Holder Plaintiff. Where a lien
holder formally intervened by right or by leave, it became a party and was bound by
any judgment, including liability for any taxable costs a prevailing party brings under
MCR 2.625. Ellis v Eaton Rapids Community Hospital, 456 Mich 919, 572 NW2d
657 (1997). Grand Rapids v Consumers Power Co, 216 Mich 409, 415, 185 NW
852 (1921). Eyde v Meridian Charter Twp, 118 Mich App 43, 50, 324 NW2d 775
(1982). Blue Cross & Blue Shield of Michigan v Eaton Rapids Comm Hosp, 221
Mich App 301; 561 NW2d 488 (1997). Kim v Ford Motor Co, 170 Mich App 544,
546; 429 NW2d 203 (1988).
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Automatic Stay on Execution of a Judgment. MCR 2.614(A)(1) provides that
except as otherwise provided, proceedings may not be taken to enforce a judgment
until the expiration of 21 days after its entry. If a motion for new trial, a motion to
alter or amend the judgment, a motion for judgment notwithstanding the verdict, or
a motion to amend or for additional findings of the court is filed and served within
21 days after entry of the judgment, execution may not issue on the judgment and
proceedings may not be taken for its enforcement until the expiration of 21 days
after the entry of the order, unless otherwise ordered by the court on motion for
good cause. Nothing in the rule prohibits the court from enjoining the transfer or
disposition of property during the 21-day period.
Discovery of Assets. For judgment creditors, after judgment a judge may compel
discovery of assets. The court can also prevent transfer of assets, order satisfaction
of the judgment and appoint a receiver for property. The judge may also compel
discovery of any assets. MCR 2.621; MCL 600.6101 et seq; MCL 600.6104.
F.
Relief from Judgment or Order
Motion for Relief From Judgment or Order. MCR 2.612 generally allows a
motion for relief from a judgment for correction of clerical mistakes in judgments,
orders, or other parts of the record and errors arising from oversight or omission on
the court’s own initiative or by motion of a party. McNeil v Caro Community Hospital,
167 Mich App 492, 423 NW2d 241 (1988). MCR 2.612(C) allows a motion for relief
from a judgment on just terms, on the basis of mistake, inadvertence, surprise,
excusable neglect, newly discovered evidence which by due diligence could not
have been discovered, fraud, misrepresentation, misconduct of an adverse party,
or any other reason justifying relief. The motion must generally be made within one
year. Relief from a judgment is discretionary. Detroit Free Press, Inc v Dept of State
Police, 233 Mich App 554, 556, 593 NW2d 200 (1999). Consent judgments will not
be set aside or modified except for fraud or mutual mistake. MCR 2.612(C). Trendell
v Solomon, 178 Mich App 365, 367, 443 NW2d 509 (1989). Kiefer v Kiefer, 212
Mich App 176, 182, 536 NW2d 873 (1995). A change of heart is insufficient to set
aside a settlement agreement unless some extraordinary circumstance is present.
Redding v Redding, 214 Mich App 639, 643, 543 NW2d 75 (1995). McNeil v Caro
Community Hospital, 167 Mich App 492, 423 NW2d 241 (1988). Groulx v Carlson,
176 Mich App 484, 492, 440 NW2d 644 (1989). Hauser v Roma’s of Michigan, Inc,
156 Mich App 102; 401 NW2d 630 (1986). Relief from a judgment will not be
allowed where substantial rights of the opposing party will be detrimentally affected,
and a showing must be made that extraordinary circumstances exist to mandate
setting aside a judgment to achieve justice. Heugel v Heugel, 237 Mich App 471,
603 NW2d 121 (1999). Relief from a judgment is not appropriate where the case
was dismissed by a directive of the Court of Appeals. Kidder v Ptacin, 284 Mich App
166; 771 NW2d 806 (2009). Farley v Carp, 287 Mich App 1; 782 NW2d 508 (2010).
167
168
XIV.
Arbitration
_________________________
Arbitration Generally. By stipulation, parties can agree to arbitrate any claim for
any amount, and according to any rules that they have agreed to in writing. The
Uniform Arbitration Act permits persons to agree to submit controversies to
arbitration and to “agree that a judgment of any circuit court shall be rendered upon
the award.” MCL 600.5001(1). Watts v Polaczyk, 242 Mich App 600, 608; 619
NW2d 714 (2000). Once an issue is submitted to arbitration, the Uniform Arbitration
Act and MCR 3.602 limit judicial review. DAIIE v Sanford, 141 Mich App 820, 825;
369 NW2d 239 (1985). MCR 3.602(J)(1) lists the grounds for vacating an arbitration
award if: (a) the award was procured by corruption, fraud, or other undue means;
(b) there was evident partiality by an arbitrator appointed as a neutral, corruption of
an arbitrator, or misconduct prejudicing a party’s rights; (c) the arbitrator exceeded
his or her powers; or (d) the arbitrator refused to postpone the hearing on a showing
of sufficient cause, refused to hear evidence material to the controversy, or
otherwise conducted the hearing to prejudice substantially a party’s rights. MCR
3.602(J)(2) states that an application to vacate an award must be made within
twenty-one days after delivery of a copy of the award to the applicant. The fact that
the relief could not or would not be granted by a court of law or equity is not ground
for vacating an award.
Arbitrations Under MCL 600.2912g. MCL 600.2912g provides that, at any time
after a notice of intent is given under MCL 600.2912b, if the total damages claimed
is $75,000.00, or less, including interest and costs (or greater if agreed upon in
writing), all claimants and notified health professionals or health facilities may agree
in writing to submit the claim to binding arbitration. An agreement shall contain at
least all of the following provisions:
(a) A process for the selection of an arbitrator.
(b) An agreement to apportion the costs of the arbitration.
(c) A waiver of the right to trial.
(d) A waiver of the right to appeal.
Arbitration conducted under this section is binding as to all parties. The arbitration
shall be summary in nature and conducted by a single arbitrator chosen by
agreement of all parties. There shall be no live testimony of parties or witnesses.
There is no discovery except that the following information shall be disclosed and
exchanged upon written request:
(i)
(ii)
(iii)
All relevant medical records or medical authorizations to obtain all
relevant medical records.
Expert witness reports or statements if a party intends to furnish the
report to the arbitrator for consideration.
Relevant published works, medical texts, and literature.
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(iv)
(v)
A concise written summary prepared by a party or the party's
representative setting forth that party's factual and legal position on
the damages claimed.
Other information relevant to the claim or a defense to the claim.
The arbitrator shall conduct a prehearing telephone conference and set deadlines
for the exchange of information and the written summaries of the parties. The
arbitrator may issue a decision without a formal hearing. Any hearing is limited
solely to oral argument, subject to time limitations set by the arbitrator. The
arbitrator shall then issue a written decision stating the factual basis for the decision
and the amount of the award. The arbitrator shall not include costs, interest, or
attorney fees in an award. A party may submit an award by an arbitrator under this
section to a court for entry of judgment and enforcement of the award. The awardis
not subject to appeal.
Arbitration Does Not Toll the Statute of Limitations. The statute of limitations is
not tolled by initiating an arbitration proceeding, or during the time the arbitration
proceeding is pending. Varga v Heritage Hospital, 139 Mich App 358 (1984). Mair
v Consumers Power Co., 419 Mich 74, 348 NW2d 256 (1984). James v Logee, 150
Mich App 35, 388 NW2d 294 (1986).
Judicial Review & Enforcement of Arbitration Awards. A party is entitled to
have a judgment entered on an arbitration award. Judicial review of a common-law
arbitration award is limited to instances of bad faith, fraud, misconduct, or manifest
mistake, and an award will be upheld unless there is 1) fraud on the part of the
arbitrator; 2) fraud or misconduct of the parties affecting the result; 3) gross
unfairness in the conduct of the proceeding; 4) lack of jurisdiction in the arbitrator;
5) violation of public policy; or 6) lack of the entirety in the award. Where it clearly
appears that the arbitrators were led to a wrong conclusion, and the error mandates
a substantially different award, the award and decision will be set aside. E E Tripp
Excavating Contractor, Inc v Jackson Co, 60 Mich App 221, 250; 230 NW2d 556
(1975). Frazier v Ford Motor Co, 364 Mich 648, 655; 112 NW2d 80 (1961). DAIIE
v Gavin, 416 Mich 407, 443; 331 NW2d 418 (1982). Belen v Allstate Ins. Co., 173
Mich App 641, 645; 434 NW2d 203 (1988). A challenge to the award must be made
before entry of judgment in the original action as any subsequent action challenging
the arbitration is barred by the doctrine of res judicata. Frazier v City of Warren,
(Unpublished, May 30, 1997).
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XV.
Appeals
________________________________
A.
B.
C.
D.
E.
F.
G.
Appeals Generally
Appeals as of Right
Applications for Leave to Appeal
Bonds and Stays of Proceedings
Appellate Briefs and Oral Argument
Precedential Effect of Decisions
Finality/Res Judicata
_____________________________
A.
Appeals Generally
Time for Filing Appeal. A final order or judgment may be appealed as of right
within 21 days of entry. A final order resolves the entire action, not just certain
claims or defendants. MCR 7.101(B).
Appealable Issues. Appeals are generally limited to issues raised and preserved
in the trial court. Facts outside of the record are not considered, so discovery
materials must be placed in the record when judgment is entered. MCR 2.302(H)(3).
7.203(A). MCR 7.204. Eriksen v Fisher, 166 Mich App 439, 449-450, Ward v
Frank’s Nursery and Crafts, 186 Mich App 120 (1990). Wiand v Wiand, 178 Mich
App 137, 143 (1989). Providence Hospital v Labor Fund, 162 Mich App 191 (1987).
Loper v Cascade Township, 135 Mich App 106 (984). MCR Unpreserved issues
may be reviewed where there is plain error affecting substantial rights. Kern v
Blethen-Coluni, 240 Mich App 333, 336, 612 NW2d 838 (2000). People v Grant,
445 Mich 535, 548-549, 552-553, 520 NW2d 123 (1994).
Appellate Procedure. Appeals are heard by a panel of three judges, sitting in
Detroit, Lansing or Grand Rapids. Decisions are final unless modified by the
Michigan Supreme Court under its discretionary jurisdiction in matters of special
importance to the law of the state. MCR 7.201. A motion for rehearing on the
Appellate court’s decision may be requested within 21 days. MCR 7.215.
Admission of Evidence & “Abuse of Discretion.” A trial court’s decision
regarding the admissibility of evidence is reviewed for an abuse of discretion. Grow
v WA Thomas Co, 236 Mich App 696, 711, 601 NW2d 426 (1999). An abuse of
discretion involves more than a difference in judicial opinion. There are
circumstances where is no single correct outcome and more than one reasonable
and principled outcome exists. When the trial court selects a principled outcome,
it has not abused its discretion. Maldonado v Ford Motor Co, 476 Mich 372, 388;
719 NW2d 809, 817 (2006). An abuse of discretion occurs where a result is “so
171
palpably and grossly violative of fact and logic that it evidences not the exercise of
will but perversity of will, not the exercise of judgment but defiance thereof, not the
exercise of reason but rather of passion or bias.” Berger v Berger, 277 Mich App
700, 705; 747 NW2d 336 (2008). Alken-Ziegler, Inc v Waterbury Headers Corp, 461
Mich 219, 227, 600 NW2d 638 (1999). Another definition of abuse of discretion is
where a decision results in an outcome outside the principled range of outcomes.
Woods v SLB Prop. Mgt., LLC, 277 Mich App 622, 625, 750 NW2d 228 (2008).
B.
Appeals as of Right
Harmless Error.
Even if error exists, a decision will not be reversed if the error
was harmless, or did not substantially affect material rights. Also, if no prejudice is
evident, and the same result could have been reached otherwise, the result will be
affirmed absent some unusual circumstance.
Curative Instructions. If an error occurs at trial which may have been cured by
an instruction, but no instruction was requested, appellate consideration is generally
discretionary. Kelly v Murray, 176 Mich App 74, 438 NW2d 882 (1989).
Reviewing a Grant of Directed Verdict. The Court of Appeals reviews a trial
court’s grant of a directed verdict by reviewing all evidence in the light most
favorable to the non-moving party. Heins v Detroit Osteopathic Hospital, 150 Mich
App 641, 389 NW2d 141 (1986).
C.
Applications for Leave to Appeal
Discretionary Appeals. Appeals of non-final orders are discretionary. The time
for filing an application for leave to appeal is 21 days. A party opposing the appeal
may file an answer to the application at any time before the hearing. MCR 7.203(B).
MCR 7.205.
D.
Bonds & Stays of Proceedings
Bonds Generally. An appeal does not stop the enforcement of judgments or
orders. A stay or appeal bond is generally set by the trial court in an amount
adequate to protect the prevailing party. The Court of Appeals may modify the
bond. The trial court may also order a stay of any further proceedings with, or
without, a bond as justice requires. MCR 7.209.
E.
Appellate Briefs & Oral Argument
Generally. Appellant must file a brief with the court of appeals within 56 days after
the claim or transcript is filed, whichever is later. If oral argument is desired, it must
be requested on the title page. Appellee must file a responsive brief within 35 days
of the brief filed by appellant. MCR 7.212. There is no specific time required for the
appellate courts to render a decision.
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F.
Precedential Effect of Decisions
Generally. Once issued, an appellate decision may, or may not, be designated for
publication as a binding precedent in future cases. The decision to publish depends
upon a number of factors relating to the value of the opinion in future cases.
Unpublished decisions do not set precedent, but may be cited.
Retroactive Effect of Decisions. Appellate court decisions are generally given
full retroactive effect. Prospective, or limited retroactive application, may be ordered
if well-established law, or substantive rights, have been changed. In determining the
issue, the court is to weigh: 1) the purpose of the new rule, 2) the extent of reliance
on the old rule, and 3) the effect of retroactivity on the administration of justice.
Michigan Educational Employees Mut Ins Co v Morris, 460 Mich 180, 189; 596
NW2d 142 (1999).
Appeals to the Michigan Supreme Court. An application for leave to file an
appeal to the Michigan Supreme Court may be made within 21 days. The
application must show either a substantial question under statutory law, an issue of
major significance to the law of the state, or a clear error in the lower court’s
decision for the application to be granted. MCR 7.302.
G.
Finality
Res Judicata. Res judicata bars relitigating all claims previously litigated, and
every claim arising from the same transaction or occurrence that the parties,
exercising reasonable diligence, could have raised. Gose v Monroe Auto Equipment
Co, 409 Mich 147, 160-163, 294 NW2d 165 (1980). Sprague v Buhagiar, 213 Mich
App 310, 313, 539 NW2d 587 (1995). All such claims are merged by law into any
judgment or order of dismissal with prejudice entered in an action. Dart v Dart, 460
Mich 573, 586, 597 NW2d 82 (1999). Summary and default judgments are also
determinations on the merits to which res judicata applies. Detroit v Nortown
Theatre, Inc, 116 Mich App 386, 392, 323 NW2d 411 (1982). Corrigan v Aetna Life
& Casualty, 140 Mich App 467, 364 NW2d 728 (1985). Sewell v Clean Cut
Management, Inc, 463 Mich 569, 575, 621 NW2d 222 (2001). Res judicata requires
that both actions involve the same parties or their privies. Baraga Co v State Tax
Comm, 466 Mich 264, 269, 645 NW2d 13 (2002). Harvey v Harvey, 237 Mich App
432, 437, 603 NW2d 302 (1999). Eaton Co Bd of Co Rd Comm’rs v Schultz, 205
Mich App 371, 375, 521 NW2d 847 (1994).
Collateral Estoppel. The doctrine of collateral estoppel bars re-litigating issues
unsuccessfully litigated in a prior action which ended in a final judgment. There is
no requirement that the same parties be involved for the doctrine to apply. For
collateral estoppel to apply, the issue sought to be relitigated must be identical to
the issue in the first action, actually and necessarily litigated, and essential to the
judgment. Monat v State Farm Ins Co, 469 Mich 679, 688; 677 NW2d 843 (2004).
A federal judgment precluded relitigation of the same claim in a state court based
on the issues raised in the federal action. RDM Holdings, Ltd v Continental Plastics
Co, 281 Mich App 678, 688-689; 762 NW2d 529 (2008).
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174
XVI.
Related Areas of Law
________________________
A.
B.
C.
D.
E.
F.
G.
H.
I.
Insurance Law Generally
Types of Insurance Policies
Bad Faith of Insurer
OSHA & MIOSHA
Physician Credentialing & Licensing Disputes
EMTALA (Federal Emergency Medical Treatment and Active Labor Act)
Maintaining Patient Records
Indemnity Actions
Civil Rights Actions
________________________
A.
Insurance Law Generally
Insurer’s Duty to Defend. The duty of an insurance company to defend its
insured arises from the insurance contract and the “gravamen” of the complaint.
An insurer has a duty to defend, despite theories of liability asserted against an
insured which are not covered, if there any theories of recovery fall within the policy.
The duty to defend is not limited by the exact language of the complaint. An insurer
must look behind the allegations to analyze whether coverage is possible. Dochod
v Central Mutual Ins, 81 Mich App 63, 67 (1978). Western Fire Ins v J R Snider, Inc,
76 Mich App 242 (1977). Detroit Edison v Michigan Mutual, 102 Mich App 136
(1980). Protective National Ins v Woodhaven, 438 Mich 154 (1991). Shephard
Marine Const v Maryland Casualty, 73 Mich App 62 (1976). Reurink Bros v
Maryland Casualty, 131 Mich App 139, 143 (1983). Western Casualty v Coloma,
140 Mich App 516, 520-21 (1985). Linebaugh v Berdish, 144 Mich App 750, 762
(1985). Wright v White Birch Park, 118 Mich 639-43 (1982). A&G Assoc v Michigan
Mutual, 110 Mich App 293-299 (1981). Allstate v Demps, 133 Mich App 168 (1984).
The Western Ins v J R Snyder, Inc, 76 Mich App 242, 249 (1977). Frankenmuth
Mutual v Beyer, 153 Mich App 118, 395 NW2d 36 (1986). Multi-States Transport,
Inc. v Michigan Mutual, 154 Mich App 549, 398 NW2d 462 (1986). North River
Insurance v Endicott, 151 Mich App 707, 391 NW2d 454 (1986). Illinois Employers
Insurance of Wausau v Dragovich, 139 Mich App 502, 362 NW2d 767 (1984). In
Holland v ProNational Ins. Co. (Unpublished, October 6, 2005), the court rejected
the insurance company argued that it had no duty to defend a physician for
allegations of sexual misconduct, as such allegations could not be separated from
other covered allegations, and that, therefore, the other allegations were excluded.
The court held it to be well settled that if any allegations fall within coverage, the
insurer has a duty to defend. Michigan Ed Employees Mut Ins Co v Karr, 228 Mich
App 111, 113; 576 NW2d 728 (1998). Radenbaugh v Farm Bureau Gen Ins Co of
Michigan, 240 Mich App 134, 137; 610 NW2d 272 (2000).
175
Delay Providing Insurer with Notice of Suit. The purpose of immediate notice
provisions in insurance policies is to allow the insurer to make a timely investigation,
to evaluate claims and to defend against fraudulent, invalid or excessive claims.
Delay in giving a required notice is only a breach of the policy if not given within a
reasonable time. Prejudice is a material element in determining whether notice is
reasonably given. MCL 500.3008; Wehner v Foster, 331 Mich 113 (1951). Exo v
DAIIE, 259 Mich 578 (1932). Stein v Continental Casualty Co, 429 Mich 89, 94-95
(1984). Bib v Dairyland Insurance Co, 44 Mich App 440 (1973).
B.
Types of Insurance Policies
Occurrence Policy of Insurance. An “occurrence” policy of insurance provides
coverage where the policy is in effect on the date of injury. The meaning of
“occurrence” refers only to the injury, not the separate acts of negligence resulting
in the injury. Gibbs v Armovit, 182 Mich App 425, 452 NW2d 839 (1990).
Claims Made Policy of Insurance. Covers claims asserted during the policy
period, regardless of when they occurred. Insurance policy limiting liability to claims
asserted before the expiration of the policy term is not against public policy. DAIIE
v Leonard Underwriters, Inc., 117 Mich App 300, 323 NW2d 679 (1982). Stein v
Continental Casualty, 110 Mich App 410, 313 NW2d 299 (1981). An insurer is
required to defend despite late notice where it was not reasonably possible to give
notice within the time required. St. Paul Fire & Marine Ins. Co. v Parzen, 569 FSupp
753 (ED Mich 1983).
Homeowners Policy of Insurance. Claims of medical malpractice arise out of a
doctor-patient relationship and are not covered by an insurance policy which
excludes coverage for professional services. Frankenmuth Insurance Co. v
Kompus, 135 Mich App 667, 354 NW2d 303 (1984).
Intentional & Criminal Acts Exclusions. A malpractice insurance policy excluding
coverage for legal expenses incurred defending allegedly criminal acts has been
held to not preclude coverage for defense costs even though the alleged
malpractice could constitute a violation of a criminal statute. Vigilant Insurance v
Kambly, 114 Mich App 683 (1982).
Insurer Controls Settlement Negotiations. An insurer is not required to pay a
claim which the insured voluntarily settled on his own where the contract provided
that any liability would be forced by judgment, or a settlement made under the
insurer’s own authority. Coil Anodizers, Inc. v Wolverine Insurance Co., 120 Mich
App 118, 327 NW2d 416 (1982).
Statutory Law. Benefits under an insurance contract must be paid on a timely
basis to an insured, or other person entitled to such benefits. After 60 days following
satisfactory proof of loss, the insurer must pay 12% interest on claims not paid on
a timely basis. Failure to pay claims on a timely basis is an unfair trade practice
unless the claim is reasonably in dispute. MCL 500.2006.
176
Pre-Judgment Interest. The insurer controlling the defense is liable for prejudgment interest on a verdict. Michigan Milk Producers Assn. v Commercial Union
Ins. Co., 564 FSupp 1545 (WD Mich 1983). Pre-judgment interest is on the policy
limit, the not the judgment amount, from the date the complaint was filed until entry
of judgment. Matich v Modern Research Corp., 430 Mich 1, 420 NW2d 67 (1988).
Bent v Bostwick, 148 Mich App 184, 384 NW2d 124 (1986). Pro rata apportionment
pre-judgment interest between a primary insurance and excess insurance carrier
is appropriate where both have exposure. Celina Mutual Ins. Co. v Citizens
Insurance Co., 133 Mich App 655, 349 NW2d 547 (1984).
Post-Judgment Interest. An insurer is liable for post judgment interest on an
entire judgment, even if it exceeds policy limits, where the policy is silent with
respect to interest and the insurer was solely responsible for appealing a judgment.
Pinto v Buckeye Union Insurance Co., 193 Mich App 304, 484 NW2d 9 (1992).
No Obligation to Explain Rights Under Insurance Policy. Only actively licensed
lawyers may provide “legal advice” regarding contracts and other matters. Morris
& Doherty, PC v Lockwood, 259 Mich App 38 (2003). 17 Couch on Insurance §
238.24 (3rd ed 2000) (an insurer is under no duty to inform claimant of potential
benefits under an insurance policy).
C.
Bad Faith of Insurer
Bad Faith Generally. An implied covenant of good faith and fair dealing arises
from an insurance policy contract between the insurer and the insured. An insurer
is liable to its insured for a judgment exceeding the policy limits where, in bad faith,
it refused to settle the claim within the insured’s policy limits. Commercial Union Ins
Co v Medical Protective Co, 426 Mich 109, 116; 393 NW2d 479 (1986). A primary
insurer does not, however, owe the same duty to an excess insurer. Bad faith
requires conscious doing of wrong because of dishonest purpose or moral obliquity.
Medley v Canay, 126 Mich App 739, 337 NW2d 909 (1983). Bad faith is insufficient
to state a cause of action for intentional infliction of emotional distress unless the
conduct is outrageous. Roberts v Auto Owners Insurance Co., 422 Mich 594, 374
NW2d 905 (1985).
Recovery Limited to Insured’s Available Assets. An insured, or his or her
assignee, can recover no more than the insured could have recovered from his
insurer. Frankenmuth Mut Ins Co v Keeley (On Rehearing), 436 Mich 372; 461
NW2d 666 (1990) (Keeley II). Stockdale v Jamison, 416 Mich 217, 330 NW2d 389
(1982). Maynard v Sauseda, 121 Mich App 644, 329 NW2d 774 (1982).
D.
OSHA & MIOSHA
Generally. Employers have a general duty to provide a safe work environment for
employees. The federal Occupational Safety and Healthy Administration (OSHA)
has numerous employer safety regulations.
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Blood-borne Pathogens Regulations. Occupational Safety and Healthy
Administration (OSHA) regulations govern safety risks for blood-borne pathogens.
These regulations are generally administered and enforced in Michigan through the
Michigan Department of Public Health, MIOSHA Division. A written exposure plan
must be developed listing job classifications where employees have potential
exposure. The plan must be reviewed and updated annually or whenever new
standards or risks occur. Universal precautions prevent skin or mucous membrane
contact with potentially hazardous fluids. The precautions assume that all patients
are carriers. Puncture proof “Personal protective equipment” is worn and punctureproof, labeled containers are used for waste. Potentially contaminated garments are
disposed of in marked “biohazard” containers or cleaned according to strict
standards. All employees who may be exposed are entitled to free Hepatitis B
vaccinations. Employees declining vaccinations must sign a waiver.
MIOSHA Enforcement Procedures. MIOSHA inspectors may inspect randomly
or pursuant to complaints. An employer need not allow inspection or provide
documents without a warrant or subpoena. A designated representative should
accompany the inspector as a witness.
Sanctions for MIOSHA Violations. The amount of the fines charged for violations
change. Fines for “non-serious violations” are around $10,000. Willful or repeated
violations may result in fines of $100,000 or more. Willful violations causing death
can be higher, with criminal penalties of up to six (6) months imprisonment.
Falsified records are punishable by fines and imprisonment for up to six (6) months.
Failure to Timely Abate MIOSHA Violations. An employer has a specific time
to comply after a citation is issued. Failure to timely comply, without an appeal in
progress, can result in daily penalties.
Challenging a MIOSHA Citation. A citation may be challenged within 15 days
of service. Valid service is by registered mail. The Department of Health must
respond to a challenge within 15 days. If an employer is still aggrieved, there are 15
days to appeal to the “Board of Health and Safety Compliance and Appeals.” At all
stages, employers are entitled to representation. The Board must allow a hearing,
but there is no right to a jury unless a criminal violation is pursued through the state
attorney general’s office. All final appeals are to the Court of Appeals within 21
days of service of the final order.
Defenses to MIOSHA Citations. Rarely, complying with OSHA standards may be
more dangerous than the existing practice. The “greater hazard” defense
recognizes such situations, and a variance from the rules may be allowed under
MCL 408.1027. An impossibility of Compliance Defense is available where
compliance is not feasible or so burdensome that it precludes work. An
isolated/unforeseen misconduct defense may be made in limited to cases where the
employer educates employees and actively enforces the Act. A lack of employer
control over the hazard defense. May be available where a person has no control
over the hazard. Another defense may be the lack of an employer/employee
relationship. The definition of an “employee” is broad, with the key to the defense
178
being a lack of the right to control the employee. A lack of jurisdiction defense may
apply where another agency has pre-empted the field with specific safety rules
regulating the hazard. 29 USCS §651, et seq; 29 CFR 1910.1030; 29 USCS §677;
MCL 408.1001 et. seq; MCL 408.1029(2). Sponick v Detroit Police, 49 Mich App
162, 198 (1973). MCL 24.275; MCR 7.101; MCR 7.103; Keeler Brass Co. v Mich
Dept Labor, 93 Mich App 599 (1979). MCR 2.111.
E.
Physician Credentialing & Licensing Disputes
Generally.
Individuals engaged in medical staff peer review have statutory
qualified immunity for acts or communications made within the scope of such
internal review process. MCL 331.531. Regualos v Community Hospital, 140 Mich
App 455, 364 NW2d 723 (1985). In Feyz v Mercy Mem Hosp, 475 Mich 663; 719
NW2d 1 (2006), the Michigan Supreme Court held that an exception to qualified
immunity under medical peer review immunity statute is established where a person
supplying information or data to a peer review entity does so with knowledge of its
falsity or with reckless disregard of its truth or falsity. Michigan does not recognize
the judicial nonintervention doctrine, which provides that courts will not intervene in
a private hospital's staffing decisions, thereby overruling the decisions in Hoffman
v. Garden City Hosp., 115 Mich.App. 773, 321 N.W.2d 810; Sarin v. Samaritan
Health Ctr., 176 Mich.App. 790, 440 N.W.2d 80, and Long v. Chelsea Community
Hosp., 219 Mich.App. 578, 557 N.W.2d 157; and the medical peer review immunity
statute does not extend to the hospital that makes the ultimate decision on staffing
credential questions.
Board of Medicine Proceedings. Judicial review of a Board of Medicine decision
is limited to whether it was authorized by law and supported by competent, material,
and substantial evidence, and legitimate inferences drawn therefrom. The burden
of proof in health professional disciplinary proceedings is a preponderance of the
evidence. R 338.1624(1), MCL 333.16237(4). “Substantial evidence” is evidence
that a reasonable person would accept as sufficient, can be less than a
preponderance of the evidence. Morreale v Dep’t of Community Health, 272 Mich
App 402, 405; 726 NW2d 438 (2006). Rucker v Michigan Bd of Medicine, 138 Mich
App 209, 211; 360 NW2d 154 (1984). Thangavelu v Department of Licensing and
Regulation, 149 Mich App 546; 386 NW2d 584 (1986). A court may set aside an
agency decision if based on a substantial and material error of law. MCL 24.306.
McBride v Pontiac School Dist (On Remand), 218 Mich App 113, 123, 553 NW2d
646 (1996). Adrian School Dist v Michigan Public School Employees’ Retirement
System, 458 Mich 326, 332, 582 NW2d 767 (1998). O’Connor v Comm’r of Ins, 236
Mich App 665, 670, 601 NW2d 168 (1999).
Altered Medical Charts. A board of medicine finding that a doctor unlawfully
altered a medical chart, supported by substantial evidence, justified a three-month
suspension of license to practice medicine, followed by a one-year term of
probation, continuing education requirements, and a $5,000 fine. Dowerk v Oxford
Charter Twp, 233 Mich App 62, 72, 592 NW2d 724 (1998). Black v DSS, 212 Mich
App 203, 207, 537 NW2d 456 (1995).
179
F.
EMTALA (Federal Emergency Medical Treatment and
Active Labor Act.
Michigan Damages Caps Apply to EMTALA Claims. Claims under EMTALA
allow only those damages available under the law of the state in which the hospital
is located. An EMTALA failure to stabilize claim is a malpractice action under
Michigan law, as compliance entails medical judgment. Therefore, the MCL
600.1483 cap on non-economic damages applies. Smith v Botsford General
Hospital, 419 F3d 513 (6th Cir. 2005).
Federal Emergency Medical Treatment and Active Labor Act (“EMTALA”).
EMTALA, at 42 USC 1395dd, sets forth two requirements for hospitals accepting
Medicare payments. First, for any individual who “comes to the emergency
department” and requests treatment, the hospital must “provide for an appropriate
medical screening examination to determine whether or not an emergency medical
condition exists. 42 USC 1395dd(a). Second, if the hospital determines that the
individual has an emergency medical condition, the hospital must provide treatment
within the staff and facilities available at the hospital to stabilize the medical
condition, or transfer of the individual to another medical facility. 42 USC 1395dd(b).
Thus, for an individual who seeks treatment in a hospital, the hospital must
determine whether an “emergency medical condition” exists, and if the hospital
believes such a condition exists, it must provide treatment to “stabilize” the patient.
Thornton v Sw. Detroit Hosp., 895 F2d 1131, 1134 (6th Cir. 1990).
Emergency Medical Conditions Under EMTALA. The statute defines an
“emergency medical condition” as one with acute symptoms of sufficient severity
(including severe pain) such that the absence of immediate medical attention could
reasonably be expected to result in placing the person’s health in serious jeopardy.
42 USC 1395dd(e)(1)(A)(i). To stabilize a patient means “to assure, within
reasonable medical probability, that no material deterioration of the condition is
likely to result from or occur during the transfer of the individual from a facility. 42
USC 1395dd(e)(3)(A). “Transfer” includes moving the patient to an outside facility
or discharging him. 42 USC 1395dd(e)(4). Moses v Providence Hosp. and Medical
Centers, Inc., 561 F3d 573, (6th Cir. Mich. 2009).
Standing Under EMTALA. EMTALA provides that any individual who suffers
personal harm as a direct result of a participating hospital's violation of a
requirement of this section may, in a civil action against the participating hospital,
obtain those damages available for personal injury under the law of the State in
which the hospital is located, and such equitable relief as is appropriate.” 42 USC
1395dd(d)(2)(A). An estate of a patient also has standing.
EMTALA Does Not Authorize Actions Against Physicians. EMTALA does not
authorize an action against an individual physician. Baber v Hosp. Corp. of Am., 977
F2d 872, 877-78 (4th Cir. 1992). King v Ahrens, 16 F3d 265, 271 (8th Cir. 1994).
Eberhardt v City of L.A., 62 F3d 1253, 1256-57 (9th Cir. 1995). Delaney v Cade, 986
F.2d 387, 393-94 (10th Cir. 1993). Gatewood v Wash. Healthcare Corp., 933 F2d
1037, 1040 n.1 (D.C. Cir. 1991) (dicta). Moses v Providence Hospital and Medical
Centers, Inc. (6th Circ., April 6, 2009).
180
EMTALA Requires Equal Screening. 42 USC 1395dd(a) requires that all patients
be screened the same way. A hospital may determine its own procedures and
protocols, but they must be applied equally. Urban v King, 834 FSupp 1328 (1993).
Vickers v Nash General Hospital, Inc., 78 F3d 143, Correa v Hospital San
Francisco, 69 F3d 1184, 1192-93 (1st Cir. 1995) cert. den., 116 SCt 1423 (1996).
Repp v Anadarko Municipal Hospital, 43 F3d 519, 522 (10th Cir. 1994). Holcomb v
Monahan, 30 F3d 116, 117 (11th Cir. 1994). To prove a violation of the screening
requirement, some courts have required an improper motive be shown. Cleland v
Bronson Health Care Group, Inc., 917 F2d 266 (6th Cir. 1990). Other federal circuits
have not required an improper motive. Summers v Baptist Med Ctr. Arkadelphia, 91
F3d 1132, 1137-38 (8th Cir. 1996) (en banc). Correa v Hospital San Francisco, 69
F3d 1184, 1193-94 (1st Cir. 1995). Repp v Anadarko Municipal Hosp., 43 F3d 519,
522 (CA10 1994). Power v Arlington Hospital Ass’n, 42 F3d 851, 857 (CA4 1994).
Gatewood v Washington Healthcare Corp., 933 F2d 1037, 1041 (CADC 1991).
EMTALA is Not a Federal “Malpractice” Law. 42 USC 1395dd(a) does not deal
with “proper” treatment. EMTALA is not a federal malpractice statute. Gatewood
v Washington Healthcare Corp, 933 F2d 1037, 1041 (CA DC 1991). Correa v
Hospital San Francisco, 69 F3d 1184, 1192 (1st Cir. 1995). Hardy v New York City
Health & Hosp Corp, 164 F3d 789, 792 (2nd Cir. 1999). EMTALA was enacted to
stop patients from being turned away from emergency rooms for non-medical
reasons. Bryan v Rectors & Visitors of Univ of Virginia, 95 F3d 349, 351 (4th Cir.
1996). Cleland v Bronson Health Care Group, Inc, 917 F2d 266, 268 (6th Cir. 1990).
Marshall v East Carroll Parish Hosp Service Dist, 134 F3d 319, 322 (5th Cir. 1998).
Summers v Baptist Medical Ctr Arkadelphia, 91 F3d 1132, (8th Cir. 1996). Eberhardt
v City of Los Angeles, 62 F3d 1253, 1258 (9th Cir. 1995). Urban v King, 43 F3d 523,
525 (10th Cir. 1994). Harry v Marchant, 291 F3d 767, 770 (11th Cir. 2002). Lanman
v Kalamazoo Psychiatric Hospital, (Unpublished, January 12, 2006).
EMTALA Requires Stabilizing Treatment Before Transfer. 42 USC1395dd(b)
requires examination and treatment, within the staff and facilities available, to
stabilize any individual who presents to the hospital with an emergency medical
condition. Unstable patients may not be transferred unless a physician certifies that
the transfer is in the patient’s best interest. “Stabilized” means that no material
deterioration is likely to result from a transfer. An “appropriate transfer” before
stabilization requires 1) the patient be treated and stabilized as well as possible
within capabilities, 2) the patient needs treatment at the receiving facility and the
risks of transfer are outweighed by the benefits, 3) these factors are certified in
writing by a physician, 4) the receiving hospital agrees to the transfer, and has the
facilities to provide the necessary treatment, 5) a copy of the medical record goes
with the patient, with delayed results forwarded. If a physician is not present, the
certification may be signed by a “qualified medical person” in consultation with the
physician, with the physician signing it later. 42 USC 1395dd(c)(1)(iii)(a). An
improper motive is not required under 42 USC 1395dd(b). Roberts v Galen of
Virginia, Inc, 525 US 249; 119 S Ct 685; 142 L Ed 2d 648 (1999).
181
EMTALA Fines & Civil Actions. 42 U.S.C. § 1395dd(d) authorizes fines and
allows a private action against the hospital for EMTALA violations. If more than
$75,000 is in controversy, the claim may be removed to Federal Court. Most courts
have held that a civil action only lies against a hospital. Almond v Town of Massena,
(NY Court of Appeals, 1998). Two federal district courts have allowed claims
against physicians. One basis foran EMTALA action was for a failure to respond
while on call. MCL 333.20737. Mallory v City of Detroit, 181 Mich App 121, 449
NW2d 115 (1989). Clelland v Bronson Health Care Group, Inc., 917 F2d 266 (6th
Cir 1990). Thornton v Southwest Detroit Hospital, 895 F2d 1131 (6th Cir 1990).
Where a physician believes that a condition is stable, and has no improper motive
for discharge, there is no EMTALA claim. Adams v Grace Hosp., 962 FSupp 101,
53 SocSecRepServ 401, (ED Mich.1997).
EMTALA Regulatory Law. Regulations to assist in the EMTALA rules have been
promulgated by the agency administering Medicare, the Health Care Financing
Administration (“HCFA”). 42 CFR 489.20(q)(1) requires hospitals to post a
conspicuous sign, of a type approved by the Secretary of Health and Human
Services, advising of the right to be examined and to receive treatment. Another
regulation, 42 CFR 489.24(a) requires that the examination to determine if a patient
is unstable or in active labor be performed by a “qualified medical person” under
applicable hospital bylaws.
EMTALA Regulations Cover Entire Medical Campus. 42 CFR 489.24 defines
“comes to the emergency department” to include the entire hospital “campus” as
well as well as any facility off campus that is determined to be a department of the
hospital. Property also includes ambulances owned and operated by the hospital
even if not on hospital grounds. An individual in any other ambulance on hospital
property is also covered. The changes appear to be a response to an incident in
Chicago when a hospital policy prohibiting personnel from leaving the grounds while
on duty, led to the death of a 15-year-old boy who had been shot, and was taken
to an alley by the hospital personnel watched, but did not assist, and the boy later
died of his wounds. EMTALA Regulations, 42 CFR 489.24. Inquiry into insurance
or pre-authorization for HMO patients may not prevent or delay a medical screening
or institution of necessary stabilizing treatment where an emergency medical
condition exists. EMTALA duties are unaffected by ability to pay or payment terms.
G.
Maintaining Patient Records
Duty to Maintain Records for Seven Years. MCL 333.20175(1) requires health
care facilities to maintain medical records for a minimum of 7 years from the date
of service. A health facility or agency may destroy records less than 7 years old only
under narrow circumstances and with notice to the patient. Where such records are
required to pursue the right to bring a medical malpractice claim, and MCL
600.2912b(5) provides that a health facility shall provide access to the necessary
medical records within fifty-six days of receiving notice of intent to file a medical
malpractice claim, the failure to timely provide medical records may be actionable
if it precludes the ability to bring a claim. Violation of the statutory duty to maintain
records may allow a claim for damages due to spoliation of evidence. Wilson v Sinai
Grace Hospital (Unpublished, April 29, 2004).
182
Copying Records & Copy Fees. A claim for excessive copying fees for medical
records did not state a claim under the Michigan Consumer Protection (“MCPA”),
MCL 445.903(1), as securing the records was for the purpose of litigation and not
“primarily for personal, family, or household use.” Slobin v Henry Ford Health Care,
469 Mich 211 (2003). The Michigan Consumer Protection statute applies only to
actions committed in the conduct of trade or commerce. Copying patient records
is not “trade or commerce” as physician are not in the business of providing such
a service. Rather, providing record copies is incidental to the practice of medicine.
Maclean v RMA Physicians, (Unpublished, WL 33348594 (1996).
H.
Indemnity Actions
Indemnification Generally. Indemnification shifts a judgment from one person to
another. Indemnification is different from contribution, which is a payment between
tort-feasors sharing liability. Contribution distributes a loss on a pro-rata basis while
indemnity transfers the entire loss to the equitably or contractually liable party. St.
Luke’s Hosp v Giertz, 458 Mich 448, 453, 581 NW2d 665 (1998). Swindlehurst v
Resistance Welder Corp, 110 Mich App 693, 698, 313 NW2d 191 (1981). The right
to indemnity can arise from an express or implied contract, or common law.
Transportation Dep’t v Christensen, 229 Mich App 417, 425, 581 NW2d 807 (1998).
Common Law Indemnification. Indemnification is an equitable doctrine that
shifts the entire burden of judgment from a tortfeasor compelled to pay it, to another
whose active negligence is the primary cause of the harm. St Luke’s Hosp v Giertz,
458 Mich 448, 453; 581 NW2d 665 (1998). The right to common law indemnification
is based upon the equitable theory that where the wrongful act of one party results
in another being held liable, the latter party is entitled to restitution. Lakeside
Oakland Dev, LC v H & J Beef Co, 249 Mich App 517, 531; 644 NW2d 765 (2002).
For common law indemnification, there must be an absence of any active or causal
negligence. Paul v Bogle, 193 Mich App 479, 490, 484 NW2d 728 (1992). North
Community Healthcare, Inc v Telford, 219 Mich App 225, 226, 556 NW2d 180
(1996). Provencal v Parker, 66 Mich App 431, 239 NW2d 623 (1976). Indemnity Ins
Co of North America v Otis Elevator Co, 315 Mich 393, 24 NW2d 104 (1946).
Husted v Consumers Power Co, 376 Mich 41, 135 NW2d 370 (1965). Liberty
Mutual Ins Co v Curtis Noll Corp, 112 Mich App 182, 315 NW2d 890 (1982). If the
underlying complaint alleges active negligence, common-law indemnity is not
available. Feaster v Hous, 137 Mich App 783, 787-788, 359 NW2d 219 (1984).
Pontious v E W Bliss Co, 102 Mich App 718, 721, 302 NW2d 293 (1981). State
Farm Fire & Cas Co v Super City, Inc, 125 Mich App 65, 68, 335 NW2d 714 (1983).
Michigan has no “partial” indemnity. Williams v Litton Systems, 433 Mich 755, 761,
449 NW2d 669 (1989). Ingram v Interstate Motor Freight Systems, 115 Mich App
559, 569, 321 NW2d 731 (1982). Swindlehurst v Resistance Welder Corp, 110 Mich
App 693, 698, 313 NW2d 191 (1981). In Botsford Continuing Care Corporation v.
Intelistaf Healthcare, Inc., 292 Mich App 51 (2011), the Court of Appeals noted that
the right to common-law indemnification is based on the equitable theory that where
the wrongful act of one party results in another being held liable, the latter is entitled
to restitution for any losses. Lakeside Oakland Dev, LC v. H & J Beef Co, 249 Mich
183
App 517, 531; 644 NW2d 765 (2002); Dale v. Whiteman, 388 Mich 698, 705-706;
202 NW2d 797 (1972). Common-law indemnity is intended only to make a party
whole when held vicariously liable through no active fault. A party seeking indemnity
must plead and prove that they have no active or causal negligence. Langley v.
Harris Corp, 413 Mich. 592, 597; 321 NW2d 662 (1982); St Luke's Hospital v.
Giertz, 458 Mich 448, 456; 581 NW2d 665 (1998); Paul v. Bogle, 193 Mich App 479,
491; 484 NW2d 728 (1992). Whether a party is “passively” or “actively” liable is
determined from the underlying plaintiff's complaint. Parliament Construction Co v.
Beer Precast Concrete Ltd, 114 Mich App 607, 612; 319 NW2d 374 (1982); Oberle
v. Hawthorne Metal Products Co, 192 Mich App 265, 270; 480 NW2d 330 (1991).
When the underlying action has been tried to a jury, the nature of the claims must
be determined by examining not only the complaint, but also the issues actually
submitted to and decided by the jury. Hartman v. Century Truss Co, 132 Mich App
661, 665; 347 NW2d 777 (1984). Issues tried by express or implied consent of the
parties, even though not raised in the pleadings, are treated as if they had been
raised by the pleadings. Symons v. Prodinger, 484 Mich. 851; 768 NW2d 317
(2009); see also MCL 2.118(C)(1).
Contractual Indemnification. Contractual indemnity issues are generally resolved
by the contract terms. If an indemnitor has notice of an action and declines the
opportunity to defend it, the indemnitor is bound by any reasonable good faith
settlement the indemnitee may make. An indemnitee need only demonstrate
potential liability and that the settlement amount was reasonably related to the
liability exposure and the employees. Grand Trunk Western Railroad, Inc v Auto
Warehousing Co, 262 Mich App 345; 686 NW2d 756 (2004). When examining the
reasonableness of the settlement, the trier of fact must examine the amount paid
in settlement in light of the risk of exposure and the possibility that the defendant
would have prevailed. The fact that the claim may have been successfully defended
by establishing contributory negligence, lack of negligence, or other applicable
defense is part of the analysis. Ford v Clark Equipment Co, 87 Mich App 270,
277-278; 274 NW2d 33 (1978). Broad indemnification language may protect the
indemnitee against its own negligence if such intent can be ascertained from other
language in the contract, surrounding circumstances, or from the purpose sought
to be accomplished by the parties. Fischbach-Natkin v Power Process Piping, Inc,
157 Mich App 448, 452; 403 NW2d 569 (1987). An indemnity clause providing for
indemnification for “all claims” has been interpreted to impart the “broadest possible
indemnification.” Triple E Produce Corp v Mastronardi Produce, Ltd, 209 Mich App
165, 173; 530 NW2d 772 (1995).
I.
Civil Rights Actions
Elliot Larson Civil Rights Act, (“ELCRA”). With respect to granting medical staff
privileges, a hospital is not a place of public accommodation under the Elliot Larson
Civil Rights Act, MCL 37.2301, et seq. Staff privileges are not offered or otherwise
available to the general public. ELCRA requires being deprived of access to goods,
services, facilities, privileges, advantages, or accommodations “otherwise made
available to the public.” MCL 37.2302. Haynes v Neshewat (Unpublished, June 23,
184
2005). Diamond v Witherspoon, 265 Mich App 673; 696 NW2d 770 (2005). Kassab
v Michigan Basic Prop Ins Ass’n, 441 Mich 433; 491 NW2d 545 (1992).
Wrongful Denial of Medical Services. In Moon v. Michigan Reproductive & IVF
Center, P.C., __ Mich App __ (November 8, 2011), the unmarried Plaintiff sought
in vitro fertilization services. Both facilities that she went to told her that they did not
provide such services to single women. Plaintiff then brought a wrongful
discrimination action which was dismissed on the basis that, under the common law,
a doctor can refuse to enter into a doctor-patient . The Court of Appeals reversed,
holding that a clinic is a “place of accommodation” under the Michigan Elliot Larson
Civil Rights Act (“ELCRA”), MCL 37.2301et seq., and may not refuse treatment
based solely on a characteristic protected by the Act.” MCL 37.2302 prohibits
discrimination in “a place of public accommodation,” and except where permitted by
law, a person shall not: (a) Deny an individual the full and equal enjoyment of the
goods, services, facilities, privileges, advantages, or accommodations of a place of
public accommodation or public service because of religion, race, color, national
origin, age, sex, or marital status. Although a doctor-patient relationship is
contractual and may only be established voluntarily by consent, either express or
implied, of both parties, that medical malpractice rule does not permit a physician
to refuse to enter into a doctor-patient relationship based upon discriminatory
factors in violation of the ELCRA.
185
XVII.
Index
________________________________
Abusive Discovery Practices.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Acceptance or Rejection of the Case Evaluation Award... . . . . . . . . . . . . . . . 107
Access to Medical Records During Notice Period.. . . . . . . . . . . . . . . . . . . 30, 86
Accrual Date Disputes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Accrual of the Statute of Limitations... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Active & Passive Negligence. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Adding a New Defendant & Tolling the Statute of Limitations.. . . . . . . . . . . . . 73
Addition of New Claims & the Statute of Limitations... . . . . . . . . . . . . . . . . . . . 70
Additional Notices of Intent & the Statute of Limitations.. . . . . . . . . . . . . . . . . . 73
Adjournments Due to Unavailable Witness.. . . . . . . . . . . . . . . . . . . . . . . . . . 121
Admission of Death Certificates.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Admission of Documents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Admission of Evidence & “Abuse of Discretion.”. . . . . . . . . . . . . . . . . . . . . . . 171
Admission of Expert Reports.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Admission of External Regulatory Agency Rules. . . . . . . . . . . . . . . . . . . . . . 125
Admission of Industry Customs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Admission of Internal Policies & Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . 124
Admission of Medical Records.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Admission of Public Records & Autopsies.. . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Admission of Reports Prepared for Litigation & IME’s.. . . . . . . . . . . . . . . . . . 124
Admission of Statutes, Regulations, Policies & Procedures. . . . . . . . . . . . . . 124
Adverse Inference from Missing Records & Medical Records.. . . . . . . . . . . . 123
Affidavit of Merit by Nurse Valid for Causation.. . . . . . . . . . . . . . . . . . . . . . . . . 35
Affidavit of Merit Must be Filed With the Complaint.. . . . . . . . . . . . . . . . . . . . . 30
Affidavit of Merit Only Required for an Original Complaint.. . . . . . . . . . . . . . . . 35
Affidavit of Merit Precludes Finding a Claim to be Frivolous... . . . . . . . . . . . . 163
Affidavit of Merit Required for Each Health Care Provider Whose . . . . . . . . . . 35
Affidavit of Meritorious Defense Signed by Defendant.. . . . . . . . . . . . . . . . . . . 42
Affidavit of Noninvolvement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Affidavits of Merit & Inadequate Content.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Affidavits of Merit & Unqualified Experts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Affidavits of Merit Against Nonphysicians... . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Affidavits of Merit and the Statute of Limitations.. . . . . . . . . . . . . . . . . . . . . . . 36
Affidavits of Merit Presumed Valid.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Affidavits of Meritorious Defense.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Affirmative & Special Defenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Affirmative Defenses May Be Freely Amended.. . . . . . . . . . . . . . . . . . . . . . . . 67
Affirmative Defenses Which Must Be Plead. . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Agency Between Spouses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Agency Principles.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Aggravation of Preexisting Conditions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
186
Allocation of Damages Among Nonparties at Fault. . . . . . . . . . . . . . . . . . . . . . 59
Allocation of Fault Among Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Allocation of Fault Is Required in Medical Malpractice Actions.. . . . . . . . . . . . . 61
Alternative Dispute Resolution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Amending Affirmative Defenses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Amending or Withdrawing an Admission. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Amending Pleadings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Amending the Complaint.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Amendment of Pleadings Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Amendments to Conform to the Evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Answering the Complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Appealable Issues.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Appeals.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Appeals as of Right.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Appeals Do Not Toll the Statute of Limitations.. . . . . . . . . . . . . . . . . . . . . . . . . 78
Appeals Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Appeals to Prejudice, Incitement of Jury.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 156
Appeals to the Michigan Supreme Court.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Appearance for a Party. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Appearances Generally. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Appellate Briefs & Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Applications for Leave to Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Arbitration Does Not Toll the Statute of Limitations. . . . . . . . . . . . . . . . . . . . . 170
Arbitration Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Arbitration Proceedings Do Not Toll the Statute of Limitations.. . . . . . . . . . . . . 73
Arbitrations Under MCL 600.2912g.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169
Assault & Battery.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Automatic Stay on Execution of a Judgment.. . . . . . . . . . . . . . . . . . . . . . . . . 167
Bad Faith of Insurer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Bill of Taxable Costs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Board of Medicine Proceedings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 179
Bonds & Stays of Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Breach of Confidentiality Claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Caps on Noneconomic Damages Generally... . . . . . . . . . . . . . . . . . . . . . . . . . 57
Case Evaluation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107
Case Evaluation Acceptance & Contribution. . . . . . . . . . . . . . . . . . . . . . . . . . 165
Case Evaluation Not Disclosed in Non€Jury Trial.. . . . . . . . . . . . . . . . . . . . . 109
Case Evaluation Sanctions Do Not Include Cost of Appeal.. . . . . . . . . . . . . . 161
Case Evaluation, Offers of Judgment & Alternative Dispute Resolu. . . . . . . . 107
Causation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Causation Generally... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Cause in Fact. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Cause in Fact Generally... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Challenging a Notice of Intent.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Challenging Defective Service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Challenging Jurors for Cause... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Changing an Acceptance or Rejection of a Case Evaluation Award... . . . . . . 108
187
Child Claim for Loss of Parental Companionship.. . . . . . . . . . . . . . . . . . . . . . . 15
Chiropractic Medicine Local Standard of Care.. . . . . . . . . . . . . . . . . . . . . . . . . 11
Circumstantial Evidence and Cause In Fact... . . . . . . . . . . . . . . . . . . . . . . . . . 48
Civil Rights Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184
Claims Made Policy of Insurance.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
Claims Only Against Health Care Facility.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Closing Arguments... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Codified Burden of Proof.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Collateral Estoppel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Collateral Sources Generally. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Commencement of an Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Common Law Expert Qualifications Generally. . . . . . . . . . . . . . . . . . . . . . . . 113
Community Care Placement Claim. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Comparative Negligence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Comparative Negligence Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Comparative Negligence of Parent in Action on Behalf of Child.. . . . . . . . . . . . 65
Comparative Negligence Preceding Treatment.. . . . . . . . . . . . . . . . . . . . . . . . 82
Comparative Negligence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Complaint Allegations Not Made in the Notice of Intent.. . . . . . . . . . . . . . . . . . 38
Complaints Must Be Plead with Specificity & Allege All Elements.. . . . . . . . . . 38
Complaints Must Plead All Claims from Transaction or Occurrence.. . . . . . . . 37
Complaints with Defective Affidavits of Merit Must Still Be Answ.. . . . . . . . . . . 36
Concurrent Statutory Right to Fees. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 161
Continuing Wrongs Do Not Extend the Statute of Limitations.. . . . . . . . . . . . . 72
Contract or Warranty Claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Contractually Varying the Statute of Limitations. . . . . . . . . . . . . . . . . . . . . . . . 68
Contribution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
Contribution Rights Among Tortfeasors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Contribution Rights Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
Contribution Rules.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Court Scheduling Orders.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Covenants Not to Sue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Curative Instructions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Current Damage Caps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Damages & Allocation of Damages.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Damages & Assertion of Privileges.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Damages & Uncertainty as to Amount.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Damages Allowed for Wrongful Death.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
Damages Caps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Damages Caps & Death Cases.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Damages Need Not Be Awarded.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Damages that are Remote, Contingent, or Speculative.. . . . . . . . . . . . . . . . . . 54
Default for Failure of Party to Attend Trial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Default for Failure to Timely File Responsive Pleadings. . . . . . . . . . . . . . . . . . 96
Defaults & Contesting Causation & Damages.. . . . . . . . . . . . . . . . . . . . . . . . . 97
Defective Affidavits of Merit & the Statute of Limitations. . . . . . . . . . . . . . . . . . 73
Defendant’s Assets Generally Not Discoverable.. . . . . . . . . . . . . . . . . . . . . . . 87
Defendant’s Proofs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Defense of Discharge in Bankruptcy. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
188
Defense of Equitable or Judicial Estoppel.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Defense of Lack of Jurisdiction Over Defendant.. . . . . . . . . . . . . . . . . . . . . . . 82
Defense of Setoff Must be Plead as Affirmative Defense... . . . . . . . . . . . . . . . 82
Defense of Statute of Frauds.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83
Defense of Wrongful Conduct & In Pari Delicto. . . . . . . . . . . . . . . . . . . . . . . 83
Defenses.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Defenses Not Limited to the Affidavit of Meritorious Defense... . . . . . . . . . . . . 41
Delay Providing Insurer with Notice of Suit. . . . . . . . . . . . . . . . . . . . . . . . . . . 176
Dentists Local Standard of Care. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Depositions of High Ranking Officials and Officers.. . . . . . . . . . . . . . . . . . . . . 93
Depositions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Destruction or Alteration of Medical Records.. . . . . . . . . . . . . . . . . . . . . . . 25, 98
Determining a Reasonable Attorney Fee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 162
Differentiating “Ordinary” Negligence & Medical Malpractice. .. . . . . . . . . . . . . . 4
Discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Discovery and Procedural Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Discovery of Assets.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Discovery Only Depositions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Dismissal of Action With Prejudice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Dismissal of Action Without Prejudice. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Dismissals of Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Duty In a Professional Health Care Relationship.. . . . . . . . . . . . . . . . . . . . . . . . 1
Duty in Medical Malpractice Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Duty is Created by Special Relationships Between Parties.. . . . . . . . . . . . . . . . 1
Duty to Family Member Witnessing Malpractice. . . . . . . . . . . . . . . . . . . . . . . . . 4
Duty to Maintain Records for Seven Years... . . . . . . . . . . . . . . . . . . . . . . . . . 182
Economic Damages.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 55
Economic Reality Test, Retained Control & Employees.. . . . . . . . . . . . . . . . . . 20
Effect of All Parties Accepting an Award. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 108
Effect of Default Against Agent or Employee. . . . . . . . . . . . . . . . . . . . . . . . . . 20
Egg Shell Plaintiffs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Electronically Stored Information.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124
Elliot Larson Civil Rights Act, (“ELCRA”).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
EMTALA (Federal Emergency Medical Treatment and Active Labor Act.. . . . 180
Entry of Orders & Judgments... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106
Entry of Orders Under the “Seven Day” Rule. . . . . . . . . . . . . . . . . . . . . . . . . 106
Equal Possibilities for Causation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
Equitable Tolling of the Statute of Limitations.. . . . . . . . . . . . . . . . . . . . . . . . . 77
Errors in Judgment... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Estoppel from Asserting the Statute of Limitations... . . . . . . . . . . . . . . . . . . . . 77
Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Evidence of Abusive Relationships.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Evidentiary Admissions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Exception to Exclusion of Evidence of Insurance. . . . . . . . . . . . . . . . . . . . . . 123
Exception to Right to Case Evaluation Sanctions... . . . . . . . . . . . . . . . . . . . . 161
Exceptions to Cap Instruction. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
Execution of Judgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
Exemplary & Punitive Damages.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Exhibits. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
189
Expert & Opinion Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Expert Discovery Limitations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Expert Interrogatories.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Expert Opinions Implicating Standard of Care for Different Speci. . . . . . . . . . 117
Expert Testimony from Defendant & Non€Retained Experts.. . . . . . . . . . . . . 118
Expert Testimony From Defendant. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Expert Testimony Generally Required.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 111
Expert Testimony Inconsistent with Facts.. . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Expert Testimony on Causation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Expert Testimony on Credibility Inadmissible.. . . . . . . . . . . . . . . . . . . . . . . . . 119
Expert Testimony on Irrelevant Standards of Care Not Allowed. . . . . . . . . . . 119
Expert Testimony on Issues of Law or Negligence is Improper.. . . . . . . . . . . 116
Expert Witness Preparation Fees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
Experts Cannot be Paid by Contingent Fee. . . . . . . . . . . . . . . . . . . . . . . . . 117
Experts from Different Schools of Training... . . . . . . . . . . . . . . . . . . . . . . . . . 117
Expiration of Summons & Second Summons... . . . . . . . . . . . . . . . . . . . . . . . . 40
False Imprisonment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Federal Physician Employees.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Fees Not Recoverable Unless Authorized by Statute or Rule.. . . . . . . . . . . . 159
Finality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Formal Discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Forms of Verdict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Fraudulent Misrepresentation... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Frivolous Claims. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
General Expert Qualification Requirements. . . . . . . . . . . . . . . . . . . . . . . . . . 113
General Trial Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Gravamen of a Claim Determines Whether it is Medical Malpractice. . . . . . . . . 7
Grewe & Apparent or Ostensible Agency... . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Grewe & Hospital Professional Buildings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Grewe & Prior Physician Relationship. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Harmless Error... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Health Care Providers Subject to Medical Malpractice Law. .. . . . . . . . . . . . . . . 1
Hedonic Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Higher Damages Cap.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
HIPAA & Disclosure of Records in Legal Actions. . . . . . . . . . . . . . . . . . . . . . 95
HIPAA Federal Privacy Rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94
HIPAA the “Health Insurance Portability and Accountability Act.”. . . . . . . . . . . 94
HMO & PPO Liability.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Hospital Administrative & Negligent Supervision Claims.. . . . . . . . . . . . . . . . . 15
Hostile Witnesses & Adverse Experts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Identification of Witnesses.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Immunity Abolished for Government Owned Hospitals and Staff. . . . . . . . . . . 78
Immunity for County Medical Examiners.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 80
Immunity for Drugs Approved by the FDA.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Immunity for Good Samaritan Acts & Physical Examinations... . . . . . . . . . . . . 79
Immunity for Health Care Facility Quality Assurance Functions.. . . . . . . . . . . . 80
Immunity for Health Care Facility Quality Assurance Functions. . . . . . . . . . . . 80
Immunity for Medical Care to Surrendered Infants.. . . . . . . . . . . . . . . . . . . . . . 79
190
Immunity for Reporting Child Abuse or Neglect.. . . . . . . . . . . . . . . . . . . . . . . . 80
Immunity for Reporting Positive HIV and Hepatitis B Results. . . . . . . . . . . . . . 80
Immunity from Lawsuits Against Employer... . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Immunity from Suit for Drugs Approved by the FDA... . . . . . . . . . . . . . . . . . . . 81
Immunity Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78
Immunity of Witnesses Giving Testimony.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 81
Immunity Under the Emergency Medical Services Act (“EMSA”).. . . . . . . . . . . 79
Inadequate Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Inadvertent Waiver of Privilege.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Incidental Release of Third Parties Under Broad Releases.. . . . . . . . . . . . . . 135
Indemnity Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 183
Independent Medical Examination Liability. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Independent Medical Examinations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Informal Consults Not Treatment.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Informal Discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Informal Discovery by Interviews With Party Employees Prohibited. . . . . . . . . 86
Informal Discovery by Private Investigators.. . . . . . . . . . . . . . . . . . . . . . . . . . . 86
Informal Discovery by Witness & Ex Parte Physician Interviews.. . . . . . . . . . . 85
Informal Discovery of Public Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85
Informed Consent Claims... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Informed Consent Relates to the Procedure Not Physician Skills.. . . . . . . . . . 12
Injurious Falsehood & Defamation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Insanity Tolling Does Not Apply to Medical Malpractice Claims. .. . . . . . . . . . . 76
Insurance Law Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Insurance, Collateral Sources & Setoffs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Insured Status of a Party Is Inadmissible. . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Insurer not Liable for Pre Judgment Interest. . . . . . . . . . . . . . . . . . . . . . . . . . 164
Insurer’s Duty to Defend. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Intentional Infliction of Emotional Distress Claim. .. . . . . . . . . . . . . . . . . . . . . . 15
Interest as a Part of Damages . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Interest Generally... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Intervening & Superseding Causes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Issues of Fact Cannot Be Created by Contradictory Testimony.. . . . . . . . . . . 104
Issues Tried by Consent.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Itemization of Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Joinder of Claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Joint & Several Liability & Allocation of Fault.. . . . . . . . . . . . . . . . . . . . . . . . . . 58
Judgment Form.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
Judgments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
Judicial Admissions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Judicial Discretion.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Judicial Review & Enforcement of Arbitration Awards.. . . . . . . . . . . . . . . . . . 170
Jury Control Agreements (“High€Lows”).. . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Jury Instructions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Jury Instructions... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Jury Not Informed of Caps. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Jury Not Informed of Settlements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Jury Selection Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Knowledge of the Standard of Care Required. .. . . . . . . . . . . . . . . . . . . . . . . 114
191
Laches. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Late Discovery Rule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71
Late Naming of a Defendant & the Statute of Limitations... . . . . . . . . . . . . . . . 70
Late Naming of Nonparties At Fault & the Statute of Limitations.. . . . . . . . . . . 75
Late Notices of Nonparty Fault... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Late or Defective Affidavits of Meritorious Defense.. . . . . . . . . . . . . . . . . . . . . 41
Late Response to Requests for Admissions... . . . . . . . . . . . . . . . . . . . . . . . . . 89
Law of the Case Doctrine... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Lay Opinion Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119
Liability for Discrimination in Granting or Renewing Privileges.. . . . . . . . . . . . . 24
Life Expectancy Tables. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Limitation on Number of Expert Witnesses.. . . . . . . . . . . . . . . . . . . . . . . . . . 117
Limited Duty to Third Persons. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Living Plaintiffs Cannot Recover for Lost Chance of Survival.. . . . . . . . . . . . . . 55
Loss of a Chance of Survival or Better Result.. . . . . . . . . . . . . . . . . . . . . . . . . 49
Loss of Consortium of Spouse.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Loss of Earning Capacity.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Lost Opportunity to Survive or Achieve a Better Result.. . . . . . . . . . . . . . . . . . 54
Lost Opportunity to Survive or Achieve Better Result Instruction. . . . . . . . . . 150
Lower Damages Cap. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
M Civ JI 30.01 Professional Negligence and/or Malpractice... . . . . . . . . . . . . 147
M Civ JI 30.02 Informed Consent... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147
M Civ JI 30.03 Burden of Proof. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
M Civ JI 30.04 Medical Uncertainties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 148
M Civ JI 30.05 Inference from Circumstantial Evidence (Res Ipsa. . . . . . . . . 148
M Civ JI 30.30 Vicarious Liability of Hospital.. . . . . . . . . . . . . . . . . . . . . . . . . 149
M Civ JI 4.12 “Missing” Records Instruction.. . . . . . . . . . . . . . . . . . . . . . . . . . 150
Maintaining Patient Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 182
Mary Carter Settlement Agreements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
MCL 600.2169(1) & Same Sub Specialty Requirement.. . . . . . . . . . . . . . . . . 112
MCL 600.2169(1) & the Same Specialty Requirement.. . . . . . . . . . . . . . . . . . 112
MCL 600.2169(1)(c) & General Practitioner Expert Requirements... . . . . . . . 113
MCL 600.2169(2) & Medical Malpractice Experts... . . . . . . . . . . . . . . . . . . . . 111
MCL 600.2912a Specialist Standard of Care & Available Facilities. . . . . . . . . 111
MCL 600.2955 Requirements for the Reliability of Expert Opinions. . . . . . . . 116
MCR 2.116(C)(10) Summary Disposition Standard.. . . . . . . . . . . . . . . . . . . . 103
MCR 2.116(C)(7) Summary Disposition Standard.. . . . . . . . . . . . . . . . . . . . . 103
MCR 2.116(C)(8) Summary Disposition Standard.. . . . . . . . . . . . . . . . . . . . . 103
MCR 2.118(D).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
MCR 2.411 Mediation Hearings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Medicaid Liens. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Medicaid Providers Cannot Increase Fee by Lien on Judgment... . . . . . . . . . . 63
Medical Malpractice Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Medical Malpractice Rules Differ From Other Claims. . . . . . . . . . . . . . . . . . . . . 4
Medical Products Liability... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Medical Staff Separate From Hospitals.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Medicare Liens... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Michigan Consumer Protection Act (“MCPA”).. . . . . . . . . . . . . . . . . . . . . . . . . 24
Misconduct as Grounds for New Trial.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 155
192
Mitigation of Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Mitigation of Damages Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Motion for a Directed Verdict.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Motion for Case Evaluation Sanctions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Motion for Change of Venue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Motion for Costs & Fees as Case Evaluation Sanctions... . . . . . . . . . . . . . . . 159
Motion for Costs & Fees for Frivolous Lawsuit.. . . . . . . . . . . . . . . . . . . . . . . . 162
Motion for Costs & Fees Under the Offer of Judgment Rule.. . . . . . . . . . . . . 161
Motion for Directed Verdict. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Motion for Judgment Notwithstanding the Verdict.. . . . . . . . . . . . . . . . . . . . . 153
Motion for Judgment Notwithstanding the Verdict. . . . . . . . . . . . . . . . . . . . . . 154
Motion for Mistrial... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 106, 146
Motion for More Specific Statement.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Motion for New Trial. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Motion for Offer of Judgment Sanctions... . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Motion for Reconsideration.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Motion for Rehearing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Motion for Relief From Judgment or Order... . . . . . . . . . . . . . . . . . . . . . . . . . 167
Motion for Remittitur or Additur. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
Motion for Sanctions for Frivolous Suits.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 154
Motion for Security for Costs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Motion Page Limits.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Motion Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
Motion to Amend Pleadings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Motion to Compel Discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
Motion to Dismiss for Lack of Expert.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104
Motion to File a Late Affidavit of Merit.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Motion to Recuse Judge.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Motion to Set Aside Default.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100
Motions Filed as First Responsive Pleading. . . . . . . . . . . . . . . . . . . . . . . . . . 100
Motions for Summary Disposition. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 102
Motions for Summary Disposition Generally... . . . . . . . . . . . . . . . . . . . . . . . . 102
Motions in Limine. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Motions in Limine Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142
Motions in Limine.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Motions Preserve the Record on Appeal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99
MRE 201 Judicial Notice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
MRE 402 Relevant Evidence & Prior Incidents... . . . . . . . . . . . . . . . . . . . . . . 125
MRE 403 Exclusion of Evidence for Prejudice.. . . . . . . . . . . . . . . . . . . . . . . . 125
MRE 404 Character Evidence to Prove Conduct.. . . . . . . . . . . . . . . . . . . . . . 126
MRE 404(b)(1) Other Crimes, Wrongs, or Acts.. . . . . . . . . . . . . . . . . . . . . . . 126
MRE 406 Habit or Routine.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126
MRE 407 Evidence of Subsequent Remedial Measures.. . . . . . . . . . . . . . . . 126
MRE 607 Impeachment of Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 127
MRE 608 Evidence of Character & Misconduct.. . . . . . . . . . . . . . . . . . . . . . . 127
MRE 609 Impeachment by Conviction of Crime. . . . . . . . . . . . . . . . . . . . . . . 127
MRE 612 Documents to “Refresh” Recollection. . . . . . . . . . . . . . . . . . . . . . 128
MRE 613 Prior Inconsistent Statements... . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
MRE 702 Admission of Expert Testimony.. . . . . . . . . . . . . . . . . . . . . . . . . . . 115
193
MRE 707 Learned Treatises. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
MRE 801 Hearsay. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 128
MRE 801(d) Pleadings, Admissions & Prior Inconsistent Statements. . . . . . . 129
MRE 801(d) Prior Consistent Statements.. . . . . . . . . . . . . . . . . . . . . . . . . . . 129
MRE 803(1) Present Sense Impressions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 129
MRE 803(18) Admission of Expert Depositions. .. . . . . . . . . . . . . . . . . . . . . . 131
MRE 803(6) Business & Medical Records. . . . . . . . . . . . . . . . . . . . . . . . . . . 130
MRE 803(8) Public Records & Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131
MRE 804(b)(5) Admission of Lay Deposition of Unavailable Witness. . . . . . . 131
National Practitioner Data Bank Reports.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Negligent Granting of Privileges... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Negligent Infliction of Emotional Distress.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Negligent Record Keeping & Proximate Cause.. . . . . . . . . . . . . . . . . . . . . . . . 52
No Vicarious Liability for Intentional Acts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Non Privileged Medical Records.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
Non Standard Instructions Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149
Non Viable Fetus Claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Noneconomic Damages... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Nonparty Fault Does Not Preclude Causation Defense. .. . . . . . . . . . . . . . . . . 61
Nonphysician Local Standard of Care.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
Nonphysician Standard of Care.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 114
Nonspecialist Standard of Care.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Notice of Intent 182 Day Notice Period.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Notices of Intent Do Not Toll the Wrongful Death “Savings Provis. . . . . . . . . . 73
Nurses Cannot Establish Proximate Cause.. . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Objections to the Qualifications of Experts... . . . . . . . . . . . . . . . . . . . . . . . . . 113
Occurrence Policy of Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
Offers to Stipulate to Entry of Judgment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109
Old Claims Statutes of Limitations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Opening Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Oral Agreements to Settle Are Not Binding.. . . . . . . . . . . . . . . . . . . . . . . . . . 133
Order of Proofs & Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Ordinary Negligence & Medical Care. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
OSHA & MIOSHA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 177
Other Defenses.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82
Other Expert Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 116
Other Professional Treatment Privileges.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Parental Claim for Stillbirth... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
Parents Have No Claim for Loss of Companionship as to Child... . . . . . . . . . . 15
Patient Abandonment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Peremptory Challenges. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Personal Representatives & Wrongful Death Savings Provision.. . . . . . . . . . . 74
Personal Settlements Not Reportable.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Personal Standards are Irrelevant to the Standard of Care.. . . . . . . . . . . . . . 117
Personal Standards are Irrelevant. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Persons Entitled to Wrongful Death Damages. . . . . . . . . . . . . . . . . . . . . . . . . 65
Pharmacy Claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Physical Injury Requirement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Physician Assistant Care.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
194
Physician Credentialing & Licensing Disputes.. . . . . . . . . . . . . . . . . . . . . . . . 179
Physician Patient Privilege is not Waived for Relatives. . . . . . . . . . . . . . . . . . . 91
Physician Patient Privilege.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 90
Physician Patient Relationship Required for Medical Malpractice.. . . . . . . . . . . 2
Plaintiffs Comparatively at Fault... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
Plaintiffs Not at Fault.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 166
Plaintiffs Who are Not Negligent.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Plaintiff’s Negligence Causing the Treatment... . . . . . . . . . . . . . . . . . . . . . . . . 51
Plaintiff’s Proofs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140
Pleading & Waiver of Affirmative Defenses.. . . . . . . . . . . . . . . . . . . . . . . . . . . 67
Pleading the Statute of Limitations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Pleadings Must Be Well Grounded in Fact and Warranted by Law.. . . . . . . . . 44
Post Judgment Interest. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
Post Trial Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Post Trial Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153
Pre & Post Judgment Interest.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Pre Judgment Interest. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 164
Pre Suit Procedural Rules. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Pre Trial Motions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105
Pre Trial Practice Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Precedential Effect of Decisions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Present Cash Value.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163
Pretreatment Comparative Negligence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Pretreatment Release or “Waiver” Ineffective.. . . . . . . . . . . . . . . . . . . . . . . . 136
Previously Litigated Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Prior Lawsuits of Experts Generally Not Admissible... . . . . . . . . . . . . . . . . . . 119
Privilege Against Self Incrimination Under the 5th Amendment... . . . . . . . . . . 93
Privilege as to Peer Review Committee Records.. . . . . . . . . . . . . . . . . . . . . . . 92
Privilege as to Records of Impaired Medical Professional.. . . . . . . . . . . . . . . . 94
Privileges Against Discovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Privileges Against Discovery Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89
Proper Party Plaintiff in Wrongful Death Action.. . . . . . . . . . . . . . . . . . . . . . . . 64
Proper Party Plaintiffs.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Proving the Contents of Writings.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 123
Proximate (Legal) Cause. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Proximate Cause Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Qualification of Expert Signing Affidavit of Meritorious Defense. . . . . . . . . . . . 41
Qualification of Mediators... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
Qualifications of Medical Standard of Care Experts. . . . . . . . . . . . . . . . . . . . 111
Qualified Privilege as to Medical Association Records.. . . . . . . . . . . . . . . . . . . 93
Qualified Privilege for Attorney & Claim Files.. . . . . . . . . . . . . . . . . . . . . . . . . . 91
Qualified Privileged as to Expert Reports. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Rare Conditions and Proximate Cause.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Rebuttal Witnesses & Evidence.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Rebuttal Witnesses & Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Recovery of Costs from an Intervening Lien Holder Plaintiff.. . . . . . . . . . . . . 166
Recovery of Costs from Codefendant Filing Notice of Nonparty Fau. . . . . . . 166
Recovery of Costs From Settlement Funds.. . . . . . . . . . . . . . . . . . . . . . . . . . 166
Recovery of Costs from the “Next Friend.”. . . . . . . . . . . . . . . . . . . . . . . . . . . 166
195
Reduction of the 182 Day Notice Period.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Referrals & Concert of Action Liability.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Rejecting Party's Liability for Actual Costs.. . . . . . . . . . . . . . . . . . . . . . . . . . . 108
Related Areas of Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
Relation Back of Amendments & Affidavits of Merit. . . . . . . . . . . . . . . . . . . . . 43
Release Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Release Language on Settlement Check.. . . . . . . . . . . . . . . . . . . . . . . . . . . . 135
Relief from Judgment or Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167
Reporting of Settlements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Repressed Memory Will Not Toll the Limitations Period... . . . . . . . . . . . . . . . . 76
Requests for Admissions of Fact.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Res Ipsa Loquitur... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Res Judicata.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 173
Respondeat Superior.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Responding to Motions for Summary Disposition... . . . . . . . . . . . . . . . . . . . . 104
Retroactive Effect of Decisions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 173
Reviewing a Grant of Directed Verdict.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 172
Right to Make Periodic Payments on Judgments. . . . . . . . . . . . . . . . . . . . . . 165
Right to Setoff for Collateral Sources. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Right to Setoff for Settlements Paid by Other Parties.. . . . . . . . . . . . . . . . . . . 63
Right to Setoff Should Be Pled as Affirmative Defense.. . . . . . . . . . . . . . . . . . 63
Sanctions after Arbitration.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Sanctions after Directed Verdict at Trial... . . . . . . . . . . . . . . . . . . . . . . . . . . . 160
Sanctions for Failure to Attend Settlement Conference.. . . . . . . . . . . . . . . . . . 96
Sanctions for Failure to Comply With Court Rules or Orders.. . . . . . . . . . . . . . 95
Sanctions for Failure to Provide Discovery or Misconduct.. . . . . . . . . . . . . . . . 95
Sanctions for Frivolous Actions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Sanctions for Misconduct & “Free Speech.” . . . . . . . . . . . . . . . . . . . . . . . . . . . 97
Sanctions for Summary Disposition Prior to Trial.. . . . . . . . . . . . . . . . . . . . . . 160
Savings Statutes.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Scope of Formal Discovery.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Selected Rules of Evidence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 125
Separate Trials on Certain Issues.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Sequestration of Witnesses. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Service of a Summons & Complaint. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Service on an Evasive Witness.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Service on an Individual & “Personal” Jurisdiction.. . . . . . . . . . . . . . . . . . . . . . 38
Service on an Individual by Mailing.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Service on Corporations... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Set Offs for Other Settlements In Joint Liability Cases... . . . . . . . . . . . . . . . . 164
Set Offs for Settlements by Other Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . 138
Settlement & Judgment Reporting.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136
Settlement Agreements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Settlements & Dismissals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Settlements for Minors & Incapacitated Persons.. . . . . . . . . . . . . . . . . . . . . . 133
Settlements Under the Wrongful Death Act. . . . . . . . . . . . . . . . . . . . . . . . . . 134
Six Year Statute of Repose. .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Social Security Benefits Setoff.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Specialist Standard of Care.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
196
Specialists National Standard of Care.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Specific Denials Required.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Speculation as to Cause is not Permitted. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Standard Jury Instructions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
Standard of Care Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Statements Made for Medical Treatment or Diagnosis. . . . . . . . . . . . . . . . . 130
Statute of Limitations for Adults.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Statute of Limitations for Minors... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
Statute of Limitations Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Statutes of Limitations.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68
Statutorily Compliant Notice of Intent Requirements.. . . . . . . . . . . . . . . . . . . . 28
Statutory & Regulatory Law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Statutory Expert Requirements for Experts Generally.. . . . . . . . . . . . . . . . . . 112
Statutory Penalties for “Bad” Parties. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
Structured Settlements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 134
Structured Settlements. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
Subpoenas for Witnesses.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88
Substantial Factor Instruction... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
Substantial Factor Requirement... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Substitution of Parties.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Supplemental & Non Standard Jury Instructions. . . . . . . . . . . . . . . . . . . . . . . 149
Surveillance & “Day in the Life” Videos.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Taxable Costs Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
Taxation of Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 157
The Proximate Cause In Statutory Law.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
The “Standard of Care”. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Theories of Recovery. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Time for Filing a Notice of Nonparty Fault. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
Time for Filing Appeal.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 171
Time to Disclose Experts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117
Time to Disclose Impeachment or Rebuttal Evidence.. . . . . . . . . . . . . . . . . . . 87
Tolling for Fraudulent Concealment of a Claim.. . . . . . . . . . . . . . . . . . . . . . . . 76
Tolling Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Tolling Statute of Limitations Due to Insanity or Imprisonment... . . . . . . . . . . . 75
Tolling the Statute of Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72
Tolling the Statute of Limitations by Filing a Complaint.. . . . . . . . . . . . . . . . . . 74
Tolling the Statute of Limitations by Mailing a Notice of Intent. . . . . . . . . . . . . 72
Tolling the Statute of Limitations During the Notice Period... . . . . . . . . . . . . . . 29
Trial Motions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145
Trial Practice. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 139
Trial Stipulations & Admissions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
Trial Transcripts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158
Types of Insurance Policies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
Types of Recoverable Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
Unfavorable Retained Experts.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 118
Uniform Qualified Assignments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 165
Unlisted Witnesses.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Use of Collateral Matters to Impeach.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 122
Valid Affidavit Requirements.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
197
Valid “Foreign” Affidavit Requirements... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Venue in Wrongful Death Claims.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Venue Must be Challenged in the First Responsive Pleading.. . . . . . . . . . . . . 37
Venue.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
Vicarious Liability, Respondeat Superior & Agency.. . . . . . . . . . . . . . . . . . . . . 18
Voir Dire. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 143
Voluntary Dismissal of Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 137
Waiver of the Physician Patient Privilege.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
Where a Notice of Intent is Mailed.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Which Statute of Limitations Applies. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
Who Sends a Notice of Intent. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Witness Lists & Amendments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Witness Procedure. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 144
Witness Refusal to Answer Questions.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Witness Statements Discoverable.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87
Witness Testimony. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Witness Testimony Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 121
Wrongful Birth.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Wrongful Conception/Failure to Diagnose Pregnancy.. . . . . . . . . . . . . . . . . . . 14
Wrongful Death Actions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Wrongful Death Actions Generally.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64
Wrongful Death Damages and Remarriage.. . . . . . . . . . . . . . . . . . . . . . . . . . . 66
Wrongful Death Damages.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 56
Wrongful Life.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Wrongful Pregnancy Claim Accrual.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 70
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