ODT Legal

The question whether a family member is entitled to compensation for providing care and services to an injured relative was answered in Douglas v Allstate Insurance Co., 492 Mich. 241 (2012). In Douglas, the Michigan Supreme Court considered whether services provided by the plaintiff’s wife constituted services “for an injured person’s care” for purposes of recovery of personal protection insurance (PIP) benefits under the no-fault act. The definition of “care” encompassed only those services related to the plaintiff’s injuries. “Replacement services” provided by the plaintiff’s wife, such as household chores, were not for the care of the plaintiff’s injury. Therefore, plaintiff could not recover benefits for those services.

The Court noted that the plaintiff could recover for attendant care services performed by his wife if he could show that the services were actually rendered, the actual cost expended, and that his wife expected compensation. This evidentiary requirement is most easily satisfied by the submission of itemized statements listing the nature of services provided, which the caregiver documented at the time of providing the services. Where the circuit court issued a judgment in favor of the plaintiff without finding that the expenses were actually incurred and that the caregiver expected compensation, the Court vacated the award and remanded the case to the circuit court for further findings of fact.

A court must also determine whether the caregiver’s charge is reasonable. The circuit court erred when it based its determination of a reasonable rate by comparison to the rates charged by commercial agencies. Where the services were provided by the plaintiff’s wife, an individual, the court should have based its hourly rate determination on what an agency pays its employees, rather than on what the agency charges its patients for those services.

In Velez v Tuma, a joint and several liability medical malpractice case, the Michigan Supreme Court considered whether the Legislature intended to abrogate the common-law setoff rule and, if not, the order in which the setoff rule and the noneconomic damages cap of MCL 600.1483 apply to a jury’s verdict.

The plaintiff had filed a medical malpractice action against two hospitals and Dr. Martin Tuma.  The hospitals entered into a settlement, agreeing to pay the plaintiff a total of $195,000.  The plaintiff filed a new complaint against Dr. Tuma.  A jury found Dr. Tuma to be professionally negligent and awarded a verdict which included $1.4 million in noneconomic damages.  Dr. Tuma requested that the circuit court apply the noneconomic damages cap to the verdict and then subtract the codefendants’ settlement from the final judgment.  The circuit court found that the common-law setoff rule was still in effect, but applied it prior to applying the statutory cap to plaintiff’s noneconomic damages.

On appeal, the Michigan Supreme Court determined that where the Legislature specifically retained joint and several liability in medical malpractice cases under MCL 600.6304(6)(a), it clearly intended to retain the common-law setoff rule in joint and several liability medical malpractice cases.  The Court then concluded that where noneconomic damages are capped and a plaintiff has been partially compensated through a prior settlement with a joint and severally liable tortfeasor, the settlement must be subtracted from the final judgment after application of the damages cap; otherwise, a plaintiff could recover the settlement amount, plus the amount of the cap.  Accordingly, the lower court erroneously set off the settlement from the jury’s verdict before applying the statutory cap, which resulted in the plaintiff receiving $195,000 more than permitted by law.

In Department of Environmental Quality v Worth Township, the Michigan Supreme Court considered the question of whether a municipality could be held responsible under MCL 324.3109(2) of the Natural Resources and Environmental Protection Act (NREPA) for raw sewage discharged into state waters by private citizens within the township’s borders.  The plaintiff, the Department of Environmental Quality (DEQ), determined that the surface waters within Worth Township were contaminated.  The contamination had originated from septic systems on privately owned properties located in the township.

DEQ filed suit seeking injunctive relief to compel the township to prevent the discharge of raw sewage into the waters of the state.  In deciding whether the township could be held responsible for the contamination, the Court interpreted the language of MCL 324.3109(2), which provides that “[t]he discharge of any raw sewage of human origin, directly or indirectly, into any of the waters of the state shall be considered prima facie evidence of a violation of this part by the municipality in which the discharge originated[.]”

In interpreting the statute, the Court found that the Legislature intended to create a presumption that a municipality is in violation of NREPA when a discharge originates within its boundaries, even where the contaminant was discharged by a private party and not by the municipality itself.  The Court found that a township, as a “municipality,” could be deemed a responsible entity under the language of MCL 324.3109(2).  Finally, the Court concluded that the trial court’s decision requiring the township to take necessary corrective action to prevent the discharge was proper where NREPA granted the trial court jurisdiction “to restrain the violation and to require compliance” with part 31 of NREPA.

Plaintiff alleged that the Defendant committed medical malpractice by failing to timely administer t-PA shortly after Plaintiff suffered a stroke. Defendants moved to strike Plaintiff’s expert’s testimony, arguing that although the expert testified that the standard of care for an ER physician required the use of t-PA, he was unable to show that his opinion was reliable. The trial court determined that because there was medical literature to support both legal positions, there was a genuine issue as to whether the standard of care is to provide t-PA. On appeal, the court concluded that Plaintiff’s argument regarding standard of care was without legally sufficient support. Plaintiff’s provided alleged quotations of abstracts from medical publications. However the actual publications were not submitted to the trial court. Further, the alleged abstracts did not even provide support for the standard of care requiring administering t-PA. Plaintiff was unable to show that the expert’s opinion was the produce of reliable principles and methods, as required by MRE 702. Nor did the expert’s opinion meet the requirements set forth in MCL 600.2955. The court concluded that Plaintiff’s expert’s opinion was unreliable and inadmissible. Thus, it was error to not grant Defendant’s motion to strike.

MCL 600.2955 provides seven factors to consider in determining whether a scientific opinion of a qualified expert is admissible:

(a)    Whether the opinion and its basis have been subjected to scientific testing and replication.

(b)   Whether the opinion and its basis have been subjected to peer review publication.

(c)    The existence and maintenance of generally accepted standards governing the application and interpretation of a methodology or technique and whether the opinion and its basis are consistent with those standards.

(d)   The known or potential error rate of the opinion and its basis.

(e)    The degree to which the opinion and its basis are generally accepted within the relevant expert community. As used in this subdivision, “relevant expert community” means individuals who are knowledgeable in the field of study and are gainfully employed applying that knowledge on the free market.

(f)    Whether the basis for the opinion is reliable and whether experts in that field would rely on the same basis to reach the type of opinion being proffered.

(g)    Whether the opinion or methodology is relied upon by experts outside the context of litigation.

In Estate of Daniel D. Jilek v. Stockson, Defendants failed to provide answers to Plaintiff’s expert interrogatories. Prior to the start of trial, Plaintiff filed a motion to strike two of Defendants’ expert witnesses for failing to provide answers to the interrogatories. In response to the motion, Defendants sent plaintiff’s counsel the two experts’ CVs, along with information regarding the topics about which the experts were to testify. Plaintiff argued that the information provided was insufficient for proper trial preparation. Defendants next sent a second letter providing more detailed information about the experts planned testimony. The trial court denied Plaintiff’s motion, stating that the Defendants’ two letters sufficiently answered the interrogatories. At trial, Plaintiff again raised the issue, arguing that the Defendants’ experts should be barred from offering testimony not provided in the letters. The trial court agreed and limited the experts’ testimony. However, Plaintiff did not refer the court to specific testimony that went beyond the limitation. The jury eventually returned a verdict of no cause of action. The appellate court reversed and remanded for a new trial. The Michigan Supreme Court reversed and remanded the decision back to the court of appeals to rule on Plaintiff’s argument as to whether the trial court erred in denying its motion to strike the expert witnesses. The decision was affirmed.

In the absence of an agreement to accept a letter from counsel in lieu of actual signed answers to interrogatories, providing such a letter does not constitute compliance with the relevant court rule. However, Plaintiff never filed a motion to compel answers to the interrogatories. Thus, Defendants were not in violation of MCR 2.313(B).

In Ramsey v. Board of Regents of the University of Michigan, the Michigan Court of Appeals dismissed plaintiff’s medical malpractice case for failure to file a Notice of Intent (NOI) within 6 months of decedent’s death. The court ruled based on McCahan v. Brennan, 291 Mich App 430 (2011), (currently on appeal to the Supreme Court), that strict compliance with the statutory notice period is required under MCL 600.6431(3).

The decedent passed away on October 2, 2005. His estate however, failed to file a NOI until July 17, 2009. Plaintiff filed a wrongful death suit against the Board of Regents of the University of Michigan in the Court of Claims on September 24, 2010.

In McCahan, the plaintiff sent a letter to the University of Michigan 5 months after suffering injuries involving a university vehicle. However, the plaintiff did not file the NOI with the Court of Claims for almost 12 months after the accident. The court held that since the NOI was not filed within 6 months of the alleged injuries, as required by MCL 600.6431, the plaintiff could not plead avoidance of governmental immunity.

As the Michigan Supreme Court has yet to rule on McCahan, the court in Ramsey was required to follow the ruling of the appellate court, dismissing the plaintiff’s claim in avoidance of governmental immunity for failing to file the NOI within 6 months.

Movie star James Woods recently testified in front of the Rhode Island General Assembly in support of protecting apologies. In regards to a negative medical outcome, an apology can potentially be considered an admission against interest, and used against the medical provider in court.

James Woods filed a lawsuit against Kent Hospital in Rhode Island following the death of his brother, Michael. The lawsuit arose from Michael’s death due to a heart attack suffered while in the hospital. Woods sued the emergency room staff for negligence. However, in 2009, Woods settled the lawsuit after a hospital executive made a sincere apology and agreed to create an institute in Michael’s name.

The bill being considered by the Rhode Island General Assembly is not a new concept. In fact, Michigan enacted its own version of the law in 2011. MCL 600.2155 provides:

(1) A statement, writing, or action that expresses sympathy, compassion, commiseration, or a general sense of benevolence relating to the pain, suffering, or death of an individual and that is made to that individual or to the individual’s family is inadmissible as evidence of an admission of liability in an action for medical malpractice.

Although this statute allows a medical provided to be sympathetic to a patient or his or her family, a statement of fault, negligence or culpable conduct is still admissible. MCL 600.2155(2).

The Michigan Court of Appeals determined that the City of Pontiac was entitled to summary disposition of plaintiff’s claim brought pursuant to the highway exception to governmental immunity. The court reversed and remanded the trial court’s decision because plaintiff’s claim failed to specify the exact location of the alleged defect.

The plaintiff alleged that he tripped on a portion of the sidewalk that was in disrepair. The plaintiff notified the City in writing of the incident, stating that it occurred “while walking east on Huron Street,” at “35 Huron, Pontiac, Michigan.”

The plaintiff brought this claim under the highway exception to governmental immunity. MCL 691.1402(1). However, to bring a claim under this exception, the plaintiff must properly notify the defendant of the injury. MCL 691.1404(1). The notice must “specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.” MCL 691.1404(1).

Defendant moved for summary disposition pursuant to MCR 2.116(C)(7), on the basis of governmental immunity, arguing that the plaintiff failed to comply with MCL 691.1401(1) because the notice lacked sufficient detail. The notice merely stated that the alleged  injury occurred at 35 Huron, Pontiac, Michigan. It failed to state whether it was East or West Huron, of which both are legitimate addresses. Additionally, there was no indication as to whether the alleged defect was on the north or south side of the street. Finally, photographs provided of the location of the alleged defect did not cure the otherwise-deficient notice. The photographs were provided to the City after the 120 day period and therefore cannot be part of the required notice.

The Michigan Supreme Court held that in cases of medical malpractice, a defective affidavit of merit (AOM) may not be retroactively amended, and must be dismissed. The timely filing of a defective AOM will toll the limitations period until a court finds it to be defective. However, there is no tolling where an AOM is filed during a savings period, but after the limitations period has expired. In this case, the limitations period expired before the complaint was filed, thus the plaintiff was not allowed to amend the defective AOM retroactively. As the savings period had expired, the case was dismissed with prejudice.

The plaintiff delivered a notice of intent to sue (NOI) to the defendants on June 8, 2005. Then, on October 21, 2005, plaintiff delivered a supplemental NOI, which provided a more detailed account regarding proximate cause. Subsequently, on April 7, 2006, plaintiff filed a complaint with the Oakland County Circuit Court, accompanied by two affidavits of merit (AOM).

Defendants filed a motion for summary disposition, arguing that the plaintiff’s NOIs and AOMs did not comply with the governing statutes, MCL 600.2912b and MCL 600.2912d. The trial court denied the motion. Defendants then applied for leave to file an interlocutory appeal, which was denied by the Court of Appeals. The Michigan Supreme Court then remanded the case to the Court of Appeals, which subsequently granted leave for defendants to file a delayed cross-appeal.

On remand from the Michigan Supreme Court, the appellate court determined that the AOMs were insufficient because neither described “[t]he manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice,” as required by MCL 600.2912d(1)(d). Further, “it is insufficient to merely allege that the defendant’s alleged negligence caused the injury,” and the AOMs did not explain “how Dr. Bauer’s decision not to admit the decedent on January 22, 2002, or obtain appropriate consultations was the proximate cause of the decedent’s death.”

The Michigan Supreme Court agreed that the failure to provide any statement regarding the manner in which the breach of the standard of care was the proximate cause of the injury alleged, rendered the AOMs deficient. The Court listed four main points explaining the reasoning for dismissal of plaintiff’s case:

1. The failure to file a timely AOM or to file a timely AOM that satisfies the requirements of MCL 600.2912d(10) generally results in dismissal.

2. Dismissal must be without prejudice unless other grounds for dismissal exist, such as the expiration of the limitations period.

3. Timely filing of a defective AOM with the complaint tolls the limitations period unless and until the court finds the AOM defective.

4. The timely filing of a defective AOM does not toll a savings period.

The Court rejected plaintiff’s argument that MCR 2.118 permits the retroactive amendment of a defective AOM. MCR 2.118 permits a party to amend a pleading. However, MCR 2.110(A) provides a list of documents that are considered pleadings, of which an AOM is not included. Further, MCL 600.2912d(2) and (3) specifically permit extra time to submit an AOM based on certain circumstances. Allowing for an AOM to be retroactively amended pursuant would be in direct conflict with MCL 600.2912d.

The Court also reject plaintiff’s argument for amendment pursuant to MCL 600.2301, which gives the court “power to amend any process, pleading or proceeding…” However, the Court stated that it has long been recognized that “an attachment to a complaint or pleading is neither a ‘process’ nor a ‘proceeding’ under MCL 600.2301.”

Finally, the Court reject the argument that amendment should be permitted under the 2010 amendments of MCR 2.112 and MCR 2.118. MCR 2.112(L)(2)(b) now provides, “[a]n affidavit of merit or meritorious defense may be amended in accordance with the terms and conditions set forth in MCR 2.118 and MCL 600.2301. In turn, MCR 2.118(D) states, “[i]n 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. These amendments became effective on May 1, 2010. Thus, they do not apply to allow plaintiff to retroactively amend the AOMs.

As a takeaway, although the plaintiff in this case was not allowed to amend its defective AOMs retroactively, the 2010 amendments to the Michigan Court Rules provide for a greater opportunity for amendments to the AOM. Additionally, MCR 2.112(L)(2)(b) now provides that all challenges to an AOM must be filed within 63 days of service of the affidavit.