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Barriers to Justice for Michigan Patients Injured or Killed by Medical Malpractice

June 2, 2015

The Michigan legislature, under claims of “tort reform,” has in the last 20 years enacted statutory barriers to justice for patients injured or killed by medical malpractice.  Legal barriers include requirements denying or delaying an injured patient access to the courthouse and baselessly-low ceilings (called “caps”) on recoverable damages.  Even when an injured patient is fortunate enough to survive Michigan’s one-sided laws, the malpractice insurers and defense lawyers in the state purposely delay and obstruct and unfairly pressure current treating physicians in order to spoil the case.  In this article, we discuss a few of the statutory blockades and the most common defense tactics to impede claims involving real and devastating injuries and with strong merit.

“Notice of Intent” and the Mandatory 6-Month Pre-Lawsuit Waiting Period

In 1993 the Michigan legislature, claiming reform, enacted a law barring an injured patient from suing a doctor or healthcare facility for malpractice for at least 6 months.  The law requires the injured patient to gather collections of medical records relating to the claim.  Often doctors and healthcare providers delay or withhold important medical records to further slow the claim, and make excuses such as lack of staff to gather and print requested records.  The requested records are often already in a risk managers office, altered, falsified, tampered with, or discarded to conceal the evidence of safety violations and errors.

After medical records are eventually released, an injured patient’s attorney must prepare and send to the potential defendant a comprehensive document called a “Notice of Intent to File Claim” (NOI).  The law demands an NOI be precise, accurate, and complete, even though medical records from an expected defendant are commonly incomplete or corrupt.  An NOI must describe in detail the factual basis for the claim against the healthcare provider, the patient safety rule that applied, the precise manner the healthcare provider violated the safety rule, and the action the healthcare provider should have taken to avert the violation.  If a safety violation is unknown, omitted, or misidentified in the NOI, Michigan law may bar the patient from correcting the document or ever raising the violation.  Most NOIs are 20 to 30 pages in length of typed, single-spaced text.

Even after an NOI is sent to the expected defendants, the injured patient must wait 182 days (6 months more) before a Michigan court will accept a filing of the lawsuit. MCL 600.2912b.

Insurance and healthcare lobbyists who advocated in the early 1990s for the laws claimed an NOI and a mandatory 6-month-waiting period would allow an expected defendant time to evaluate a claim and promptly resolve the ones with merit before a lawsuit.  “Frivolous” claims, they argued, would be kept out of the courthouse.

Not surprising, the excuses given to justify an NOI and the mandatory-waiting period barriers are false.  Since the tort reform laws were enacted, hospitals, doctors, and their insurers never settle claims during the waiting periodregardless of merit.  Rather, the team of lawyers for the expected healthcare defendants use the lengthy period to gather and scour all patient medical records regardless of age or relevancy, search for anything to sully the patient or create unfair defenses, and secretly visit the medical witnesses to intimidate and deter any assistance of the patient in the lawsuit.

Sworn Affidavits of Merit by Medical Experts

After the 6-month-NOI-waiting period is over, Michigan law demands an injured patient file with the lawsuit a sworn affidavit by a qualified medical expert supporting the claim.  The healthcare person must meet certain requirements to qualify.  The healthcare person must be brave enough to testify against a peer.  It is almost impossible to find a doctor in Michigan who will testify against a peer.  Most healthcare experts for patients are from other states, which makes the requirement challenging, cumbersome, and much more expensive.  Qualifications of the expert must also match the expected defendant’s.  Meeting the requirement can also be a challenge because key information is often missing, incomplete, or inaccurate in records written by the defendant-healthcare provider who knows he or she caused injury; qualified experts will never sign sworn statements against another professional supporting a patient without assurance of complete and accurate information of what happened.

Sworn affidavits from qualified expert must accompany the lawsuit or the court will refuse to accept it.

Blockades By Defense Lawyers and Malpractice Insurers After a Case is Eventually Filed

Barriers to justice do not end after a lawsuit is successfully filed. Defense lawyers, defendants, and malpractice insurers continue hunting for any technical flaw in an NOI, affidavit of merit, lawsuit, or other filing.  If they find or devise a flaw (which can occur because the laws are one-sided and hyper-technical), the defense will conceal the flaw until after a statute of limitations or other timing rule forever bars its correction.

Delay and obstructive tactics continue through a lawsuit.  For example, defense lawyers immediately request a so-called “Qualified Protective Order” from the court allowing them to have private, secret meetings with the injured patient’s current treating doctors.  Medical treaters are usually colleagues of the defendant, practice at the same hospital, or insured by the same malpractice insurer. The exclusionary meetings usually involve intimidation, insinuations, threats, or pressure on medical witnesses not to cooperate or assist the injured patient who has brought a malpractice lawsuit.  In some instances, the defendant’s malpractice insurer even hires lawyers to represent the medical witnesses to deny the patient’s attorney access.

In a medical malpractice action the plaintiff-patient’s access to information is never equal to that of a healthcare defendant.  Often, defendants have direct and exclusive access to the medical witnesses.  A patient’s healthcare treaters are nearly always willing to talk to defense lawyers in medical negligence cases, but almost always refuse to talk with their own patient’s attorney.  The treaters are typically part of the same healthcare system, networks, or malpractice insurers as the defendant.  This institutional discrimination and clear disadvantage to a patient-plaintiff does not exist in other types of personal injury actions, such as automobile accidents, product injuries, or worker compensation claims.  When interviews are infrequently granted to a patient’s attorney, the healthcare network or malpractice insurer invariably hires a medical defense lawyer to supervise, keep notes of, and report details of all discussions to the defendant.

Secret interviews with an injured-patient’s treating healthcare providers is just one of the many ways defense lawyers, defendants, and insurers obstruct justice in Michigan in malpractice cases.

The tort reform laws and obstructive defense tactics create blockades to justice for injured Michigan patients.  At Buchanan Firm, we are familiar and experienced with the barriers to justice and how to successfully fight and navigate through them.  Our combined legal-medical team has decades of experience successfully handling medical malpractice cases. We have medical and legal professionals on staff to talk with you and promptly review your claim. Contact our Michigan medical malpractice attorneys to help you navigate the legal process.