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Harms and Losses in Medical Malpractice Claims and Michigan’s Ceilings on Reimbursements

May 12, 2015

For a patient injured by medical malpractice, Michigan law allows the person to get back only one type of loss suffered: compensatory damages.  Only actual losses can be reimbursed.  In contrast to other states such as New Mexico, where in 1992 scalding-hot McDonald’s coffee disfigured 79-year-old Stella Liebeck, Michigan denies a jury the power to mete out punitive damage – a damage remedy devised to correct a defendant’s wrongful conduct so it is less likely to happen to someone else in the future.

Compensatory Damage (i.e., Only an Actual Loss)

The term “compensatory damage” is derived from the word “compensate” meaning to “make up for.”  In a medical malpractice action, compensatory damages are put in two categories: economic damage or noneconomic damage.

Economic Damage

Economic damage seeks to reimburse a patient for out-of-pocket expense or financial loss the person suffered.  Economic damage includes:

  • Reasonable and necessary medical services needed because of physical injury
  • Wage or compensation loss because of physical injury
  • Costs paid to replace household services the injured person can no longer perform
  • Costs paid for needed nursing or attendant care services
  • Medical assistance devices needed because of injury such as a wheelchair, leg braces, or crutches
  • Money for medical services the patient will need in the future because of physical injury
  • Money for expected future wages or compensation the person now will not get because of physical injury

Noneconomic Damage

Noneconomic damage includes everything else, including paralysis, scarring, disfigurement, physical impairment, pain, suffering, embarrassment, humiliation, etc.  Michigan’s law makers have taken away and arbitrarily restricted injured patients’ right for reimbursement of noneconomic loss.  Beholden to insurance and healthcare lobbyists who provide generous contributions for votes, the Michigan legislature took away patients’ fundamental rights of reimbursement by enacting claimed “tort reform” laws.  These laws limit reimbursement an injured person can get back from a wrongdoer.  The statutes (most of which were enacted in 1994) are unfair to patients, and economically discriminate most against women, children, young adults, the retired, and elderly.  The laws impose a low ceiling (i.e., cap) on all noneconomic loss.

In 2015 the Michigan tort reform law (MCL 600.1483(1)) limits an injured patient’s reimbursement of all noneconomic losses from defendants to only $444,900.  Under three narrow exceptions, that cap may increase to $794,500; the exceptions are: (1) a brain or spinal-cord injury that causes substantial paralysis; (2) permanent and severe cognitive impairment rendering a person incapable of making life decisions or living independently; and (3) permanent loss or damage to a reproductive organ resulting in the inability to procreate.  Death is not one of the exceptions –when medical malpractice kills a patient the lower cap on noneconomic damage applies.

Many Michigan residents are unaware of the low ceilings restricting reimbursements for noneconomic lost.  Most jurors do not know about the caps, and Michigan law forbids a judge from informing them before they deliberate and return with a verdict.  The tort reform laws deliberartely mislead jurors and conceal the cap’s existence so there is no upwardly adjustment of economic loss to lessen inequities of the noneconomic cap.  If the jury’s reimbursement of noneconomic loss is above the cap, the judge automatically reduces the amount below the low ceiling when accepting the verdict.

The purported tort “reforms” in Michigan create unjust results and insufficient reimbursements.  At Buchanan Firm we educate injured patients about Michigan’s unfair laws and explain how the courts will apply the restrictions to the claim.  We are patient advocates and open and honest with every person who contacts us to evaluate a possible malpractice claim.  If you or a loved one recently suffered injury or death resulting from a medical error, contact us or another experienced Michigan medical malpractice attorney right away.