9.11Medical Malpractice

“[A] medical malpractice claim is one brought against someone who, or an entity that, is capable of malpractice, involving actions that occurred within the course of a professional relationship, and which raise questions involving medical judgment rather than issues that are within the common knowledge and experience of the fact-finder.” Meyers v Rieck, 509 Mich 460, 469 (2022) (cleaned up). For example, “if a nurse fails to take any action to address a known problem or hazardous condition, then the claim might sound in ordinary negligence.” Id. at 469. “But a claim that concerns the failure to monitor and assess risks to a patient . . . usually requires specialized medical knowledge and therefore sounds in medical malpractice.” Id. at 470. However, “a defendant’s violation of its own internal rule, even if the rule is designed to protect the public, does not constitute negligence per se.” Id. at 473. “Accordingly, a claim that defendant committed malpractice merely by violating its own internal rule or regulation, without more, must fail because that rule or regulation does not establish the applicable standard of care.” Id. at 477.

Generally, a medical malpractice plaintiff has two years from the time his or her claim accrues to commence an action. Driver v Naini, 490 Mich 239, 249 (2011). A medical malpractice action begins when “a timely served complaint is filed.” Ottgen v Katranji, ___ Mich ___, ___ (2023) (“the normal tolling rules apply to medical malpractice actions, and tolling occurs upon the filing of a timely served complaint”). “A medical malpractice action can only be commenced by filing a timely [notice of intent under MCL 600.2912b] and then filing a complaint and an affidavit of merit after the applicable notice period has expired, but before the period of limitations has expired.” Tyra v Organ Procurement Agency of Mich, 498 Mich 68, 94 (2015).

The following subsections discuss the procedural aspects of commencing a medical malpractice action. For information on expert witnesses in medical malpractice actions, see the Evidence Benchbook, Chapter 4.

A.Statute of Limitations

Generally, plaintiff has two years from the time his or her claim accrues to commence a medical malpractice action. Driver v Naini, 490 Mich 239, 249 (2011); MCL 600.5805(8). A claim accrues “‘at the time of the act or omission that is the basis for the claim . . ., regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.’” Driver, 490 Mich at 249, quoting MCL 600.5838a(1).

For purposes of the statute of limitations in a medical malpractice case, “the [claim] accrual date depends on the date of the specific act or omission that the plaintiff claims caused his or her injury.” Kincaid v Cardwell, 300 Mich App 513, 525 (2013). However, a plaintiff is not limited “to asserting a single claim for medical malpractice for any given injury.” Id. “Because a plaintiff’s injury can be causally related to multiple acts or omissions, it is possible for the plaintiff to allege multiple claims of malpractice premised on discrete acts or omissions—even when those acts or omissions lead to a single injury—and those claims will have independent accrual dates determined by the date of the specific act or omission at issue.” Id. However, “courts cannot permit a plaintiff to revive the [common law] last-treatment rule [which the Legislature abrogated for medical malpractice claims, 1986 PA 178,] by merely pleading that the defendant had an ‘on-going’ or ‘continuing’ duty to act throughout the duration of the patient-physician relationship.” Id. at 528. “In order to establish that continued adherence to an initial diagnosis or treatment plan constitutes a discrete act or omission on a date after the date when the initial diagnosis or plan was adopted, the plaintiff must plead—and be able to prove—facts that would establish that the continued adherence at the later point constituted a breach of the duty owed to the plaintiff.” Id. at 530-531.

A medical malpractice action begins when “a timely served complaint is filed.” Ottgen v Katranji, ___ Mich ___, ___ (2023). “Filing an [affidavit of merit] under MCL 600.2912d(1) is not required to commence a medical action and toll the statutory limitations period.” Ottgen, ___ Mich at ___ (“failure to comply with MCL 600.2912d(1) can still be a basis for dismissal of a case—just not on statute-of-limitations grounds”).

“The statute of limitations was tolled” while plaintiffs’ “motion to amend complaint and add party defendants was pending” because plaintiffs “demonstrated due diligence by seeking a decision on their motion within three weeks.” Charpentier v Young, 403 Mich 851 (1978). “As long as the plaintiff demonstrate[s] due diligence, the limitations periods [are] tolled as a matter of course.” Steele v Winfield, ___ Mich App ___, ___ (2022) (quotation marks and citation omitted). In Steele, the plaintiff “filed his motion to file an amended complaint within the statutory limitations period and tolled the running of that period until the circuit court made its decision” and “then filed his amended complaint before the statute of limitations expired.” Id. at ___. The Steele Court concluded that “[t]his was due diligence” and the “defendants were not entitled to the dismissal of the claims against them.” Id. at ___.

The Michigan Supreme Court issued Administrative Order No. 2020-3 “in response to the pandemic with the intent to extend all deadlines pertaining to case initiation and the filing of responsive pleadings in civil and probate matters during the state of emergency declared by the Governor related to COVID-19.” Linstrom v Trinity Health-Mich, ___ Mich App ___, ___ (2023) (quotation marks and citation omitted). “The administrative orders provide that, any day that falls during the state of emergency declared by the Governor related to COVID-19—i.e. March 10, 2020 through June 20, 2020—is not included for purposes of MCR 1.108(1), and the computation of time resumed on June 20, 2020.” Linstrom, ___ Mich App at ___ (cleaned up). “Applying the plain language of [Amended Administrative Order 2020-3 and Administrative Order 2020-18], plaintiff had the same number of days remaining in the statutory limitations period on June 20, 2020, as she had when the state of emergency began on March 10, 2020.” Linstrom, ___ Mich App at ___. See also Hubbard v Stier, ___ Mich App ___, ___ (2023) (“The NOI waiting period was explicitly excluded from AO 2020-3’s tolling when the Supreme Court amended the order” and “AO 2020-18 provides that ‘for time periods that started before [AO 2020-3] took effect, the filers shall have the same number of days to submit their filings on June 20, 2020, as they had when the exclusion went into effect on March 23, 2020.’”) (cleaned up).

The Linstrom Court asserted its conclusion was consistent with Armijo v Bronson Methodist Hosp, ___ Mich App ___ (2023), where “it was undisputed that the statute of limitations was set to expire before the emergency was declared and before the emergency-related orders went into effect.” Linstrom, ___ Mich App at ___.¹ In Linstrom, “unlike the situation in Armijo, the statute of limitations was set to expire during the emergency period.” Linstrom, ___ Mich App at ___. However, see Toman v McDaniels, ___ Mich App ___, ___ (2023), where the Court of Appeals declared “[t]his distinction . . . makes no sense” because “the plaintiff’s service of an NOI in Armijo extended the statute of limitations (under MCL 600.5856(c)) until a date well after the end of the exclusion period under the AOs.” According to the Toman Court, “Armijo held not only that the AOs did not toll the NOI period, but that they also did not toll the statute of limitations.” Toman, ___ Mich App at ___. After concluding that “Linstrom improperly failed to follow Armijo,” the Toman Court “deem[ed] Armijo to be the controlling and binding authority,” and held that “AO 2020-3 did not apply to the statute of limitations . . . (which expired after the exclusion period of the AOs)[.]” Toman, ___ Mich App at ___.

B.Notice of Intent

Generally, a person alleging medical malpractice may not commence an action against a health professional or a health facility until he or she “has given the health professional or health facility written notice under [MCL 600.2912b] not less than 182 days before the action is commenced.” MCL 600.2912b(1).² This notice is commonly referred to as a notice of intent or NOI. “[T]he purpose of the NOI is simply to give advance notice of the claim being made by the plaintiff to facilitate potential settlement.” Sanders v McLaren-Macomb, 323 Mich App 254, 268 (2018).

The 182-day notice period may be shortened to 91 days “if all of the following conditions exist:

(a) The claimant has previously filed the 182-day notice required in [MCL 600.2912b(1)] against other health professionals or health facilities involved in the claim.

(b) The 182-day notice period has expired as to the health professionals or health facilities described in [MCL 600.2912b(3)(a)].

(c) The claimant has filed a complaint and commenced an action alleging medical malpractice against 1 or more of the health professionals or health facilities described in [MCL 600.2912b(3)(a)].

(d) The claimant did not identify, and could not reasonably have identified a health professional or health facility to which notice must be sent under [MCL 600.2912b(1)] as a potential party to the action before filing the complaint.” MCL 600.2912b(3).

MCL 600.2912b(1) requires that a plaintiff satisfy two conditions:

“(1) submit an NOI to every health professional or health facility before filing a complaint and

(2) wait the applicable notice waiting period with respect to each defendant before he or she can commence an action.” Driver v Naini, 490 Mich 239, 255 (2011).

1.Filing and Serving the NOI (Timeliness)

The statutory requirement that a plaintiff file a timely NOI is “a prerequisite condition to the commencement of a medical malpractice lawsuit,” and “the failure to comply with the statutory requirement renders the complaint insufficient to commence the action.”³ Driver v Naini, 490 Mich 239, 257 (2011) (quotation marks and citation omitted).

MCL 600.2912b(2) requires that the NOI “be mailed to the last known professional business address or residential address of the health professional or health facility who is the subject of the claim.” “Proof of the mailing constitutes prima facie evidence of compliance[.]” If the last known address cannot be reasonably ascertained, “notice may be mailed to the health facility where the care that is the basis of the claim was rendered.” Id.

“When a defendant receives the NOI is irrelevant”; timeliness is based on when the plaintiff mailed the NOI. DeCosta v Gossage, 486 Mich 116, 126 (2010) (emphasis added) (plurality opinion). In DeCosta, the plaintiff mailed the NOI to the defendants’ prior business address two days before the statute of limitations was set to expire. Id. at 121. An unknown individual at the prior address accepted the NOI and forwarded it to the defendants’ current business address. Id. Based on the specific facts of the case, the Court could not “infer that the [current] office address was defendants’ sole business address for purposes of receiving professional business correspondence,” thus, the NOI was not defective. Id. at 124-125. The Court went on to conclude that assuming a defect had actually occurred, “it was a minor technical defect in the proceedings because defendants actually received the NOI. Such minor technical defects can be cured under MCL 600.2301.”⁴ DeCosta, 486 Mich at 125.

Notwithstanding, a court must determine the effect of a plaintiff’s NOI that was mailed during the COVID-19 state of emergency (March 10, 2020 to June 20, 2020). Linstrom, ___ Mich App at ___. “Because plaintiff had to wait for this NOI waiting period before filing suit, MCL 600.2912b(1), and the statute of limitations otherwise would have expired during that waiting period . . ., the statute of limitations was tolled during the 182 day NOI waiting period[.]” Linstrom, ___ Mich App at ___. The Linstrom Court asserted its conclusion was consistent with Armijo v Bronson Methodist Hosp, ___ Mich App ___ (2023), where “it was undisputed that the statute of limitations was set to expire before the emergency was declared and before the emergency-related orders went into effect.” Linstrom, ___ Mich App at ___. In Linstrom, “unlike the situation in Armijo, the statute of limitations was set to expire during the emergency period.” Linstrom, ___ Mich App at ___.

However, see Toman v McDaniels, ___ Mich App ___, ___ (2023), where the Court of Appeals declared “[t]his distinction . . . makes no sense” because “the plaintiff’s service of an NOI in Armijo extended the statute of limitations (under MCL 600.5856(c)) until a date well after the end of the exclusion period under the AOs.” According to the Toman Court, “Armijo held not only that the AOs did not toll the NOI period, but that they also did not toll the statute of limitations.” Toman, ___ Mich App at ___. After concluding that “Linstrom improperly failed to follow Armijo,” the Toman Court “deem[ed] Armijo to be the controlling and binding authority,” and held that “AO 2020-3 did not apply to the statute of limitations . . . (which expired after the exclusion period of the AOs)[.]” Toman, ___ Mich App at ___.

“[T]he NOI requirement of MCL 600.2912b does not apply to an already-existing defendant after a medical malpractice action has commenced.” Kostadinovski v Harrington, ___ Mich ___, ___ (2023). Put differently, “MCL 600.2912b does not apply where a plaintiff seeks to amend their complaint against an already-named defendant after suit has already been commenced.”Kostadinovski, ___ Mich at ___. “The plain language of the statute clearly states that the NOI requirement only applies before the action is commenced.” Id. at ___ (quotation marks and citation omitted). In Kostadinovski, the “action had already commenced when plaintiffs sought to amend their complaint; accordingly, MCL 600.2912b did not require plaintiffs to also seek to amend their NOI.” Kostadinovski, ___ Mich at ___ (vacating footnote 6 in Kostadinovski v Harrington, 321 Mich App 736 (2017)).

2.Required Contents of NOI⁵

The NOI must state, at least, all of the following:

(a) the factual basis for the claim;

(b) the alleged standard of practice or care;

(c) how the health facility or health professional breached the standard of practice or care;

(d) what should have been done to comply with the standard of practice or care;

(e) how the breach of the standard of practice or care was the proximate cause of the claimant’s injuries;

(f) the names of all the health facilities and health professionals the claimant is notifying pursuant to MCL 600.2912b. MCL 600.2912b(4).

An NOI is not required to be in any particular format. Roberts v Mecosta Co Hosp, 470 Mich 679, 696 (2004). However, an NOI is insufficient unless it provides notice and a statement containing all of the information required in MCL 600.2912b(4). Esselman v Garden City Hosp, 284 Mich App 209, 220 (2009). A statement is satisfactory if it “reasonably communicate[s] to a medical professional or medical facility . . . the nature of the claim the plaintiff intends to pursue[.]” Id.

Additionally, MCL 600.2912b(4) does not require that “the claimant specifically set forth the legal theory of vicarious liability within the NOI, when vicarious liability is the only claim asserted” against the defendant named in the NOI. Potter v McLeary, 484 Mich 397, 422-423 (2009).

Factual basis for claim. An NOI generally describing the events that led to the plaintiff’s injury properly sets out the factual basis for the plaintiff’s claim pursuant to MCL 600.2912b(4)(a). Roberts, 470 Mich at 690.

What should have been done to comply with standard of practice or care. A recitation of facts contained in the NOI is insufficient to satisfy the requirement of MCL 600.2912b(4)(d) that the claimant indicate what should have been done to comply with the standard of practice or care. Roberts, 470 Mich at 698.

Proximate cause. To satisfy MCL 600.2912b(4)(e), the claimant must include specific allegations regarding the conduct of any named defendants. Roberts, 470 Mich at 699-700. “[I]t is not sufficient under [MCL 600.2912b(4)(e)] to merely state that defendants’ alleged negligence caused an injury. Rather, [MCL 600.2912b(4)(e)] requires that a notice of intent more precisely contain a statement as to the manner in which it is alleged that the breach was a proximate cause of the injury.” Roberts, 470 Mich at 699 n 16.

Names of health professionals/facilities receiving notice. Nothing in MCL 600.2912b(4) requires a plaintiff’s NOI to identify the relationship between the parties being sued. Potter, 484 Mich at 421. MCL 600.2912b(4)(f) “clearly states that all that need be done in this regard is to identify the names of the health professional and facility being notified.” Potter, 484 Mich at 421.

3.Challenging an NOI

“In a medical malpractice action, unless the court allows a later challenge for good cause, . . . all challenges to a notice of intent to sue 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 2.112(L)(2)(a).

Grounds. MCR 2.112(L)(2)(a) applies to challenges “based on the timeliness of the NOI, the plaintiff’s compliance with the notice waiting period, a claim that no NOI was received, or the contents of the NOI[.]” Sanders v McLaren-Macomb, 323 Mich App 254, 268-269 (2018) (holding that nothing in the court rule indicates its application is limited to content challenges). “[E]ach of these different types of challenges is just one of the possible grounds on which to challenge the sufficiency of the NOI and is essentially a challenge to the NOI. Id. at 269.

Timing. A motion challenging the NOI must be “filed at the time of [the defendant’s] first response to the complaint.” Sanders, 323 Mich App at 270-271. Accordingly, defendants failed to comply with MCR 2.112(L)(2)(a) by raising their challenge to the NOI in a motion filed after their answers, and there was no good cause to allow a later challenge to the NOI where “the record show[ed] that defendants had the necessary information to comply with the requirements of MCR 2.112(L)(2)(a) before defendants filed their answers.” Sanders, 323 Mich App at 271-272 (further holding that the court record included a proof of mailing indicating that the NOIs were addressed to the defendants providing prima facie evidence that the plaintiff complied with MCL 600.2912b; accordingly, any challenge to the sufficiency of the notice, including that the NOIs were never received, was required to be made according to the court rule).

4.Defective NOI Established: Dismiss or Allow Cure?⁶

Where a trial court is presented with a defective NOI, it must apply a two-pronged test to decide whether the defects require dismissal without prejudice or whether to allow the plaintiff to cure the defect under MCL 600.2301.⁷ Bush v Shabahang, 484 Mich 156, 177 (2009). The two-pronged test is: “first, whether a substantial right of a party is implicated and, second, whether a cure is in the furtherance of justice.” Id.

Substantial right of a party. “[N]o substantial right of a health care provider is implicated” because defective NOIs should be expected at such an early stage in the proceedings when medical records may not have been tendered, defendants are “sophisticated health professionals with extensive medical background and training,” and defendants who are able to act as their own reviewing experts should have “the ability to understand the nature of the claims being asserted against him or her even in the presence of defects in the NOI.” Bush, 484 Mich at 178.

But see Griesbach v Ross (On Remand), 291 Mich App 295, 300 (2011), where the Court of Appeals found that an NOI that fails to name a party is fatally defective because the unnamed party is not given the opportunity to evaluate the claim against him or her, implicating the unnamed party’s substantial rights. “Thus, the complete failure to serve [a defendant] with an NOI cannot be considered a mere defect, subject to cure.” Id. at 300.

Cure is in the furtherance of justice. A cure is in the furtherance of justice “when a party makes a good-faith attempt to comply with the content requirements of [MCL 600.2912b].” Bush, 484 Mich at 178. Therefore, “[a] dismissal would only be warranted if the party fails to make a good-faith attempt to comply with the content requirements.” Id. at 180.

Types of “cures” for NOI defects include disregarding the defect(s) or allowing the plaintiff to amend the NOI under MCL 600.2301 and MCR 2.118. See Bush, 484 Mich at 180-181, 181 n 44 (holding that although the plaintiff’s NOI did not adequately address the standard of care applicable to two defendants, “[p]laintiff made a good-faith attempt to address each of the subsections enumerated in [MCL 600.2912b(4)],” and “the vast majority of plaintiff’s NOI was in compliance with” that statute; accordingly, because of the good-faith attempt to comply with the statute and the substantial rights of the parties were not affected by the defects, “the alleged facts [could] be cured pursuant to [MCL 600.2301]”). See also Kostadinovski v Harrington, 321 Mich App 736, 750 (2017). In Kostadinovski, the plaintiffs timely served an NOI and timely filed their complaint and affidavit of merit, but determined after discovery and expiration of the limitations period, that the previously-identified negligence and breach-of-care allegations did not apply and that the standard of care had instead been breached by the defendant-physician in a different manner; accordingly, the trial court “was required to assess whether the NOI defect could be disregarded or cured by an amendment of the NOI under MCL 600.2301[.]” Kostadinovski, 321 Mich App at 740 (holding that the trial court erred in “automatically disallowing plaintiffs to amend their complaint,” and noting that, unlike the circumstances in Driver v Naini, 490 Mich 239 (2011), the plaintiffs’ “amended NOI would not entail adding a new party,”⁸ and directing the trial court on remand “to engage in an analysis under MCL 600.2301 to determine whether amendment of the NOI or disregard of the prospective NOI defect would be appropriate”).

“[W]hen an NOI fails to meet all of the content requirements under MCL 600.2912b(4), MCL 600.2301 allows a plaintiff to amend the NOI and preserve tolling unless the plaintiff failed to make a good-faith effort to comply with MCL 600.2912b(4).” Driver, 490 Mich at 252-253.

5.Tolling of the Statute of Limitations During Notice Waiting Period⁹

The statute of limitations is tolled at the time an NOI is timely filed, “if during that period a claim would be barred by the statute of limitations[.]” MCL 600.5856(c). However, “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.” Id.

An NOI is timely filed, and the medical malpractice limitations period “is tolled when the NOI is filed on the last day of the limitations period, leaving no whole days of the limitations period to toll.” Haksluoto v Mt Clemens Regional Med Ctr, 500 Mich 304, 307 (2017). Accordingly, “when an NOI is filed on the final day of the limitations period, the next business day after the [182-day] notice period expires is an eligible day to file suit.” Id. at 323. “[T]he law of counting time indicates that the first fractional day–i.e., the day that triggers the running of the time period–is excluded, while the last day is included, based on common-law notions of fairness.” Id. at 318. The rule of fractional days provides “that once the notice period ends and the time for the plaintiff to bring a claim once again begins to run, it will run for the number of whole days remaining in the limitations period when the NOI was filed, plus one day to reflect the fractional day remaining when the NOI itself was filed.” Id. at 322-323.

The tacking on of additional 182-day periods is not allowed, no matter how many notices are subsequently filed or how many health professionals or health facilities are notified. MCL 600.2912b(6). “[T]he prohibition . . . against tacking only precludes a plaintiff from enjoying the benefit of multiple tolling periods. It does not . . . restrict the application of the tolling provision in [MCL 600.5856(c)¹⁰] to the initial notice of intent to sue if the tolling provision in [MCL 600.5856(c)] did not even apply to the initial notice of intent to sue. Stated otherwise, if the initial notice did not toll the statute of limitations period, there would be no problem of ‘successive 182-day periods’ that [MCL 600.2912b(6)] prohibits.” Mayberry v Gen Orthopedics, PC, 474 Mich 1, 7-8 (2005). See also Hoffman v Boonsiri, 290 Mich App 34, 43 (2010), where it was undisputed that the filing of the original NOI did not trigger the tolling provision under MCL 600.5856(c). Therefore, the filing of an amended NOI did not constitute tacking, and thus, initiated tolling. Hoffman, 290 Mich App at 43. In Hoffman, the plaintiff filed her complaint 319 days after filing the original NOI and 123 days after filing the amended NOI. Id. at 37-38. The defendants argued that the plaintiff could not rely on the amended NOI to toll the statute of limitations, and at the same time rely on the original NOI to render her complaint timely under MCL 600.2912b (the 182-day rule). Hoffman, 290 Mich App at 37. The Court of Appeals disagreed and “reject[ed] the . . . defendants’ contention that the availability of tolling is linked to the ‘waiting’ or ‘no-suit’ period.” Id. at 49.

Whether defects are present in a party’s NOI is irrelevant to determining whether the statute of limitations is tolled. Bush v Shabahang, 484 Mich 156, 170 (2009). Rather, MCL 600.5856(c) only requires that the NOI comply with the “applicable notice period under [MCL 600.2912b]” in order to invoke the tolling provision. Bush, 484 Mich at 170.

[Amended AO 2020-3] plainly indicated that a statutory period, such as the 182-day notice period specified in MCL 600.2912b(1) which had to elapse before the commencement of a medical malpractice action, continued to run during the state of emergency.” Armijo v Bronson Methodist Hosp, ___ Mich App ___, ___ (2023). Thus, the Armijo Court held that the 182-day notice period commenced when plaintiff gave defendants notice of her intent to file a medical malpractice action and that “period was not suspended or tolled and continued to run” under Amended AO 2020-3. Armijo, ___ Mich App at ___. See also Toman v McDaniels, ___ Mich App ___, ___ (2023) (holding that Armijo was “the controlling and binding authority,” and “AO 2020-3 did not apply to the statute of limitations . . . (which expired after the exclusion period of the AOs)”).

Where a medical malpractice claim was properly commenced and the plaintiff filed an amended complaint that did not name new defendants or set forth any new potential causes of injury but “merely set[] forth more specific details” about the claim, a supplemental NOI satisfied the notice requirements of MCL 600.2912b. Decker v Rochowiak, 287 Mich App 666, 679, 681 (2010) (the plaintiff was not required to file a new NOI, thus, the plaintiff did not have to comply with a new 182-day waiting period under MCL 600.2912b).

6.Required Access to Records

Both the claimant and the health professional or health facility receiving the notice must allow each other “access to all of the medical records^[11] related to the claim” in their control. MCL 600.2912b(5). The claimant must provide access within 56 days of giving notice, and the health professional or health facility must provide access within 56 days of receiving the notice. In addition, the claimant must also “furnish releases for any medical records related to the claim that are not in the claimant’s control, but of which the claimant has knowledge.” Id.

A defendant is not obligated under MCL 600.2912b(5) “to offer a timely explanation for why documents not within the defendant’s control are no longer available.” Wade v McCadie, 499 Mich 895 (2016) (quotation marks and alterations omitted).

7.Required Response by Health Professional or Health Facility¹²

“Within 154 days after receipt of [an NOI], the health professional or health facility against whom the claim is made shall furnish to the claimant or his or her authorized representative a written response that contains a statement of each of the following:

(a) The factual basis for the defense to the claim.

(b) The standard of practice or care that the health professional or health facility claims to be applicable to the action and that the health professional or health facility complied with that standard.

(c) The manner in which it is claimed by the health professional or health facility that there was compliance with the applicable standard of practice or care.

(d) The manner in which the health professional or health facility contends that the alleged negligence of the health professional or health facility was not the proximate cause of the claimant’s alleged injury or alleged damage.” MCL 600.2912b(7)(a)-(d).

In lieu of furnishing a written response, a health professional or health facility may submit an affidavit to the court certifying that he or she was not involved in the occurrence alleged in the action. MCL 600.2912c(1). “Unless the affidavit is opposed pursuant to [MCL 600.2912c(2)], the court shall order the dismissal of the claim, without prejudice, against the affiant.” MCL 600.2912c(1). “Any party to the action may oppose the dismissal or move to vacate an order of dismissal and reinstate the party who filed the affidavit if it can be shown that the party filing the affidavit was involved in the occurrence alleged in the action.” MCL 600.2912c(2). “Reinstatement of a party to the action under this subdivision shall not be barred by any statute of limitations defense that was not valid at the time the action was originally commenced against the affiant.” Id.

If the claimant does not receive a written response by day 154, he or she may start a medical malpractice action on the expiration of the 154-day period. MCL 600.2912b(8).

“If at any time during the applicable notice period under [MCL 600.2912b] a health professional or health facility receiving notice under this section informs the claimant in writing that the health professional or health facility does not intend to settle the claim within the applicable notice period, the claimant may commence an action alleging medical malpractice against the health professional or health facility, so long as the claim is not barred by the statute of limitations.” MCL 600.2912b(9).

C.Filing the Complaint and Affidavit of Merit

“[A] medical malpractice action can only be commenced by filing a timely NOI [under MCL 600.2912b] and then filing a complaint and an affidavit of merit after the applicable notice period has expired, but before the period of limitations has expired.” Tyra v Organ Procurement Agency of Mich, 498 Mich 68, 94 (2015).¹³ Therefore, where a plaintiff prematurely files a complaint and affidavit of merit, he or she does not commence an action against the defendant, and the statute of limitations is not tolled. Id. See also MCL 600.2912d. A medical malpractice action begins when “a timely served complaint is filed.” Ottgen v Katranji, ___ Mich ___, ___ (2023). “Filing an [affidavit of merit] under MCL 600.2912d(1) is not required to commence a medical action and toll the statutory limitations period.” Ottgen, ___ Mich at ___ (“failure to comply with MCL 600.2912d(1) can still be a basis for dismissal of a case—just not on statute-of-limitations grounds”).

1.Consequences of Premature Filing of Complaint

MCL 600.2912b “unequivocally provides that a person ’shall not’ commence an action alleging medical malpractice against a health professional or health facility until the expiration of the statutory notice period.” Driver v Naini, 490 Mich 239, 256-257 (2011), quoting Burton v Reed City Hosp Corp, 471 Mich 745, 752 (2005). Typically, the proper remedy for failing to comply with the no-suit period set out in MCL 600.2912b by prematurely filing suit is dismissal without prejudice. Ellout v Detroit Med Ctr, 285 Mich App 695, 698-699 (2009). However, if a plaintiff fails to comply with the no-suit period and the statute of limitations has expired, the defendant is entitled to summary disposition and the plaintiff’s “complaint[] must be dismissed with prejudice.” See Tyra v Organ Procurement Agency of Mich, 498 Mich 68, 94 (2015).

2.Issues Involving Amended Complaints¹⁴

A plaintiff does not need to file an amended or additional affidavit when filing an amended complaint if the first affidavit met the requirements in MCL 600.2912d. King v Reed, 278 Mich App 504, 520 (2008). In King, the plaintiff learned additional facts during the course of discovery that prompted him to amend his complaint to include theories of negligence not included in the plaintiff’s original affidavit of merit. Id. at 512. The defendant argued that the plaintiff’s failure to file an amended or additional affidavit of merit in support of the new theories of negligence in his amended complaint precluded the plaintiff from litigating the allegations not referenced in the plaintiff’s original affidavit of merit. Id. The Michigan Court of Appeals disagreed and stated, “[b]ecause discovery was not available until after plaintiff filed his complaint and affidavit of merit, plaintiff’s affidavit of merit was not required to contain information that could not have been known to plaintiff before discovery had commenced.” Id. at 517.

3.Required Contents of the Affidavit of Merit¹⁵

If the plaintiff is represented by an attorney, the affidavit of merit must be “signed by a health professional who the plaintiff’s attorney reasonably believes meets the requirements for an expert witness under [MCL 600.2169].” MCL 600.2912d(1). “[T]he ‘reasonably believes’ language [in MCL 600.2912d] demonstrates that there will be cases in which counsel had such a reasonable belief even though the expert is ultimately shown not to meet the criteria of MCL 600.2169(1).” Jones v Botsford Continuing Care Corp, 310 Mich App 192, 200 (2015) (holding that the two affidavits of merit in this case were based on a reasonable belief that the two experts, a registered nurse and a physician specializing in geriatric care, could offer testimony regarding the standard of care for an LPN and for a physician who appeared to specialize in geriatrics, respectively; declining to address whether either witness could actually offer such testimony at trial). To determine whether an attorney’s belief was reasonable, the court should “examine the information available to the plaintiff’s counsel when he or she was preparing the affidavit of merit. Bates v Gilbert, 479 Mich 451, 459, 461 (2007) (holding that “[i]n view of the clear language of relevant statutes, the caselaw existent at the time plaintiff’s attorney filed the affidavit of merit, and the evident distinction between ophthalmology and optometry, . . . plaintiff’s counsel could not have reasonably believed that an ophthalmologist was qualified under MCL 600.2169 to address the standard of practice or care applicable to an optometrist”).

An affidavit of merit must “certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff’s attorney concerning the allegations contained in the notice and shall contain a statement of each of the following:

(a) The applicable standard of practice or care.

(b) The health professional’s opinion that the applicable standard of care was breached by the health professional or health facility receiving the notice.

(c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care.

(d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice.” MCL 600.2912d(1)(a)-(d).

Failure to include any of the required information set forth in MCL 600.2912d(1) results in an insufficient affidavit of merit. Ligons v Crittenton Hosp, 490 Mich 61, 77 (2011).

It is permissible for an affidavit of merit to set out the standard of care as required by MCL 600.2912d(1)(a) and then use the exact same verbiage from the standard of care section of the affidavit to state how the defendant breached the standard of care and the actions that should have been taken or omitted in order to have complied with the applicable standard of care, in order to satisfy the requirements of MCL 600.2912d(1)(b) and MCL 600.2912d(1)(c). Lucas v Awaad, 299 Mich App 345, 377-380 (2013).

MCL 600.2912d(1)(d) requires the affidavit of merit to indicate “the manner in which there was a breach [in the standard of care]: The answer to ‘How was the standard of care breached?’ is never ‘The standard of care was breached.’” Ligons, 490 Mich at 77-78 (2011) (simply stating the result of the breach is insufficient) (emphasis added).

“There is no specific requirement concerning which hospital or medical provider’s records must have been reviewed in order for the expert to ascertain a breach of the standard of care. . . . It is sufficient, under the plain language of the statute, for the expert to indicate that he or she has reviewed the records provided by the plaintiff’s counsel and that in light of those records, the expert is willing and able to opine with respect to the defendant’s negligence consistently with the elements set forth in the [MCL 600.2912(d)(1)].” Kalaj v Khan, 295 Mich App 420, 427 (2012). In Kalaj, the Court of Appeals held that the plaintiff’s expert’s failure to review the same x-ray films on which the defendant doctor had based his diagnosis, and which the plaintiff’s attorney had not provided to the expert, did not invalidate the affidavit of merit because there were other records from which the expert could conclude that the defendants were negligent. Id. at 429. The absence of the films “may affect the weight and credibility afforded to expert testimony,” but it “does not render that expert testimony inadmissible.” Id. at 429-430. See the Michigan Judicial Institute’s Evidence Benchbook, Chapter 4, for additional information on expert witnesses (both in general and in the context of medical malpractice actions).

4.Nonconforming Affidavits of Merit

An affidavit that is timely filed is presumed valid, and “toll[s] the period of limitations until the validity of the affidavit is successfully challenged in ‘subsequent judicial proceedings.’” Kirkaldy v Rim, 478 Mich 581, 586 (2007).¹⁶ “If the defendant believes that an affidavit is deficient, the defendant must challenge the affidavit. If that challenge is successful, the proper remedy is dismissal without prejudice.” Id.

The required procedure for challenging an affidavit of merit is set forth by MCR 2.112(L)(2). The court rule provides that “[i]n a medical malpractice action, unless the court allows a later challenge for good cause . . . all challenges to an affidavit of merit . . ., including challenges to the qualifications of the signer, must be made by motion, filed pursuant to MCR 2.119, within 63 days of service of the affidavit on the opposing party. An affidavit of merit . . . may be amended in accordance with the terms and conditions set forth in MCR 2.118 and MCL 600.2301.” MCR 2.112(L)(2)(b).

“MCR 2.112(L)(2)(b) does not limit itself to errors in the body of the AOM, but applies also to the ‘qualifications of the signer.’ Because such a correction will, for all intents and purposes, require that a different health professional sign the affidavit, the text of the rule allows a plaintiff to amend her AOM by submitting one signed by a properly qualified physician.” Legion-London v Surgical Institute of Mich Ambulatory Surgery Ctr, LLC, 331 Mich App 364, 370, 376 (2020) (the “amendment relates back to the original filing” pursuant to MCR 2.118(D); see Section 3.7(F) for more information on the “relation-back” rule). In Legion-London, plaintiff’s proposed amendment to substitute a different affiant was within the purview of MCR 2.118(D) where it was “undisputed that [the] proposed amendment arose out of the same conduct as the conduct described in the original AOM.” Legion-London, 331 Mich App at 369 (noting “[t]here may be instances where seeking to substitute a different affiant implicates one of [the] reasons for denial” but that none of those reasons were present in this case).

An affidavit that fails to name the health professional whose conduct allegedly caused the injury at issue fails to conform to the requirements of MCL 600.2912d. Glisson v Gerrity, 274 Mich App 525, 534-535 (2007), rev’d in part, vacated in part on other grounds 480 Mich 883 (2007).¹⁷

“[Q]uestions of law relating to the sufficiency of an affidavit of merit” are reviewed de novo. Vanslembrouck v Halperin, 277 Mich App 558, 560-561 (2008). A court’s decision to strike an affidavit is reviewed for an abuse of discretion. Kalaj v Khan, 295 Mich App 420, 425 (2012).

5.Timing and Statutory Tolling Period for Filing Affidavit of Merit

Within 56 days after giving notice of intent under MCL 600.2912b, “the claimant shall allow the health professional or health facility receiving the notice access to all of the medical records related to the claim that are in the claimant's control, and shall furnish releases for any medical records related to the claim that are not in the claimant's control, but of which the claimant has knowledge,” and “[s]ubject to [MCL 600.6013(9)], within 56 days after receipt of [the] notice [of intent], the health professional or health facility shall allow the claimant access to all medical records related to the claim that are in the control of the health professional or health facility.” MCL 600.2912b(5). “If the defendant in an action alleging medical malpractice fails to allow access to medical records within the time period set forth in [MCL 600.2912b(5)], the affidavit required under [MCL 600.2912d(1)] may be filed within 91 days after the filing of the complaint.” MCL 600.2912d(3). “Upon motion of a party for good cause shown, the court in which the complaint is filed may grant the plaintiff or, if the plaintiff is represented by an attorney, the plaintiff's attorney an additional 28 days in which to file the affidavit required under [MCL 600.2912d(1)].” MCL 600.2912d(2).

“Filing an [affidavit of merit] under MCL 600.2912d(1) is not required to commence a medical action and toll the statutory limitations period.” Ottgen v Katranji, ___ Mich ___, ___ (2023). “Instead, the normal tolling rules apply to medical malpractice actions, and tolling occurs upon the filing of a timely served complaint. Nevertheless, failure to comply with MCL 600.2912d(1) can still be a basis for dismissal of a case—just not on statute-of-limitations grounds.” Ottgen, ___ Mich at ___.

“[B]ecause plaintiff did not file an AOM within 91 days of filing her complaint, summary dismissal [was] the proper result regardless of whether defendants violated MCL 600.2912b(5).” Zarzyski v Nigrelli, 337 Mich App 735, 738 (2021) (“summary disposition to defendants under MCR 2.116(C)(7)” was proper “because the action was barred by the statute of limitations”). Although “the parties were litigating the issue whether MCL 600.2912d(3) was implicated in [the] case, . . . the clock began running on the 91-day period when the complaint was filed[.]” Zarzyski, 337 Mich App at 742. “Assuming, without deciding, that defendants failed to allow plaintiff access to all medical records related to her claim that were in their control within 56 days after receiving the NOI under MCL 600.2912b(5), plaintiff nevertheless failed to file an AOM within 91 days of the complaint for purposes of MCL 600.2912d(3).” Zarzyski, 337 Mich App at 742. The language of MCL 600.2912d(3) is “plain and unambiguous.” Zarzyski, 337 Mich App at 742. “MCL 600.2912d(3) simply does not accommodate for time spent litigating its application; there is no tolling language with respect to the 91-day period,” and “a medical malpractice plaintiff needs to file an AOM within 91 days—even if a defendant conclusively did not allow any access to medical records, subject, perhaps, to MCL 600.2912d(2).” Zarzyski, 337 Mich App at 742-743, 742 n 1 (plaintiff did not invoke MCL 600.2912d(2) and the court took “no position regarding whether the 28-day, good-cause provision in MCL 600.2912d(2) is available to extend the 91-day period in MCL 600.2912d(3)”).

The tolling period under MCL 600.2912d(2) is “an extension” that runs “from the date the complaint is filed, irrespective of when the motion is granted.” Castro v Goulet, 312 Mich App 1, 6 (2015). “The obvious significance of the timing requirements in MCL 600.2912d(2) is that a plaintiff who makes a motion to extend time must proceed on the assumption that the motion will be granted.” Castro, 312 Mich App at 7 (holding that the case was timely filed where the statute of limitations expired on February 9, 2013, and the plaintiffs filed their complaint and their motion to extend the time for filing an affidavit of merit on February 4, 2013, filed the affidavit of merit on February 26, 2013, and the trial court granted their motion for an extension on March 8, 2013).¹⁸

Motions under MCL 600.2912d(2) may be granted “for good cause shown[.]” MCL 600.2912d(2). The term good cause is “so general and elastic in its import that [the Court] cannot presume any legislative intent beyond opening the door for the court to exercise its best judgment and discretion in determining if conditions exist which excuse the delay when special circumstances are proven to that end.” Castro, 312 Mich App at 7 (quotation marks and citation omitted). The trial court’s determination of whether good cause to grant an extension exists is discretionary and will not be disturbed on appeal unless the decision falls outside the range of principled outcomes. Id. at 8-9 (affirming the trial court’s finding of good cause to grant an extension where the plaintiffs delayed filing a lawsuit because they were informed by the defendants that the patient’s negative side effects from the surgery would heal on their own over time).

6.Authentication of Out-of-State Affidavits of Merit

“If by law the affidavit of a person residing in another state of the United States or in a foreign country is required or may be received in an action or judicial proceeding in this state, to entitle the affidavit to be read, it must be authenticated under section 25a of the Michigan law on notarial acts, . . . MCL 55.285a, or be an unsworn declaration executed under [the Uniform Unsworn Foreign Declarations Act, MCL 600.2181 et seq.]” MCL 600.2102.

7.Affidavit of Meritorious Defense¹⁹

A defendant must file an affidavit of meritorious defense within 91 days after the plaintiff serves the affidavit of merit under MCL 600.2912d. MCL 600.2912e(1). However, if the plaintiff “fails to allow access to medical records as required under [MCL 600.2912b(5)], a defendant may file an affidavit of meritorious defense “within 91 days after filing an answer to the complaint.” MCL 600.2912e(2).²⁰

“The affidavit of meritorious defense shall certify that the health professional has reviewed the complaint and all medical records supplied to him or her by the defendant’s attorney concerning the allegations contained in the complaint and shall contain a statement on each of the following:

(a) The factual basis for each defense to the claims made against the defendant in the complaint.^[21]

(b) The standard of practice or care that the health professional or health facility named as a defendant in the complaint claims to be applicable to the action and that the health professional or health facility complied with that standard.

(c) The manner in which it is claimed by the health professional or health facility named as a defendant in the complaint that there was compliance with the applicable standard of practice or care.

(d) The manner in which the health professional or health facility named as a defendant in the complaint contends that the alleged injury or alleged damage to the plaintiff is not related to the care and treatment rendered.” MCL 600.2912e(1).

“Typically, defenses are based on an assertion that the defendant did not breach the applicable standard of care, which is but one element in a malpractice case.”²² Lucas v Awaad, 299 Mich App 345, 373 (2013). “However, defenses are not limited to this element. If any element in a malpractice claim is not met, then a plaintiff cannot prevail.” Id.

The required procedure for challenging an affidavit of meritorious defense is set forth by MCR 2.112(L)(2). The court rule provides that “[i]n a medical malpractice action, unless the court allows a later challenge for good cause . . . all challenges to an . . . affidavit of meritorious defense, including challenges to the qualifications of the signer, must be made by motion, filed pursuant to MCR 2.119, within 63 days of service of the affidavit on the opposing party. An affidavit of . . . meritorious defense may be amended in accordance with the terms and conditions set forth in MCR 2.118 and MCL 600.2301.” MCR 2.112(L)(2)(b).

D.Actions on Behalf of a Minor

“[A] minor is the real party in interest in a claim for damages arising from alleged medical malpractice[.] Olin v Mercy Health Hackley Campus, 328 Mich App 337, 352 (2019). Nothing in the governing court rules or caselaw require the “appointment of a next friend prior to or simultaneous with the filing of the complaint on behalf of the minor[.]” Id. at 352 (“the formal appointment of a next friend is [not] a meaningful date for statute of limitation purposes,” and the trial court erred in dismissing plaintiff’s medical malpractice action where the next friend was not appointed until after the expiration of the statute of limitations period).²³

E.Statute of Repose

1.Generally

“Except as otherwise provided in this subsection, an action involving a claim based on medical malpractice may be commenced at any time within the applicable period prescribed in [MCL 600.5805] or [MCL 600.5851 to MCL 600.5856], or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. However, except as otherwise provided in section [MCL 600.5851(7) or MCL 600.5851(8)], the 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 burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition, or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim is on the plaintiff. A medical malpractice action that is not commenced within the time prescribed by this subsection is barred. This subsection does not apply, and the plaintiff is subject to the period of limitations set forth in [MCL 600.5838a(3)], under 1 of the following circumstances:

(a) If discovery of the existence of the claim was prevented by the fraudulent conduct of the health care professional against whom the claim is made or a named employee or agent of the health professional against whom the claim is made, or of the health facility against whom the claim is made or a named employee or agent of a health facility against whom the claim is made.

(b) There has been permanent loss of or damage to a reproductive organ resulting in the inability to procreate.” MCL 600.5838a(2).

“The only exceptions to the running of [the] six-year statute of repose are those created by the minority saving provisions of MCL 600.5851(7) and [MCL 600.5851(8)]–the only two exceptions specifically mentioned in the statute.” Burton v Macha, 303 Mich App 750, 756 (2014) (holding that “the death saving provision of MCL 600.5852 does not toll or otherwise create an exception to the running of the six-year statute of repose”).

2.No Period of Repose in Certain Circumstances

“An action involving a claim based on medical malpractice under circumstances described in [MCL 600.5838a(2)(a)-(b)] may be commenced at any time within the applicable period prescribed in [MCL 600.5805 or MCL 600.5851 to MCL 600.5856], or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. The burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim is on the plaintiff. A medical malpractice action that is not commenced within the time prescribed by this subsection is barred.” MCL 600.5838a(3).

3.Six-Month Discovery Rule

“‘[T]he discovery rule period begins to run when, on the basis of objective facts, the plaintiff should have known of a possible cause of action.” Hutchinson v Ingham Co Health Dep’t, 328 Mich App 108, 137 (2019), quoting Solowy v Oakwood Hosp Corp, 454 Mich 214, 222 (1997). The proper inquiry for determining whether a plaintiff “should have discovered the existence of the claim” under MCL 600.5838a is “whether it was probable that a reasonable lay person would have discovered the existence of the claim.” Jendrusina v Mishra, 316 Mich App 621, 624, 626 (2016) (noting that “the inquiry is not whether it was possible for a reasonable lay person to have discovered the existence of the claim”).

“When . . . the facts compel an inference of an injury’s possible cause, diligence has little role to play in evaluating whether a plaintiff should have discovered a possible cause of action. When the facts don’t compel an inference of a possible cause but do arouse suspicion,” diligence is required. Bowman v St. John Hosp & Med Ctr, 508 Mich 320, 341 (2021). “[F]acts arouse suspicion when they make a plaintiff wonder whether the defendant is responsible,” “[b]ut the facts that arouse a plaintiff’s suspicions will vary from case to case,” underscoring “the importance of the record and its development.” Id. at 342 (quotation marks and citation omitted). The Michigan Supreme Court “will not impute to a plaintiff knowledge of cancer’s progression without a record basis to do so.” Id. at 345. In Bowman, plaintiff “was advised in 2013, based on an interpretation of a mammogram, that a growth in her breast was benign. For the next two years, she felt the lump grow and sought follow-up care. In 2015, she was diagnosed with metastatic breast cancer. In August 2016, . . . she sought a second opinion from a specialist and learned that the 2013 mammogram might have been misread.” Id. at 327. Plaintiff initiated proceedings in December 2016, and defendants moved for summary disposition arguing plaintiff should have discovered the existence of her claim in 2015 upon being diagnosed with metastatic breast cancer. Id. at 327-329. The Court affirmed the trial court’s denial of summary disposition finding “the record [did] not reveal that [plaintiff] should have known before June 2016 that her delayed diagnosis might have been caused by a misreading of the 2013 mammogram.” Id. at 327. “[T]he available facts didn’t allow her to infer that causal relationship, and the defendants have not shown that [plaintiff] wasn’t diligent”; rather, the record allowed the Court “to conclude, as a matter of law, that [plaintiff] sued over six months after she discovered or should have discovered the existence of her claim.” Id. at 327-328, 347 (noting “[i]t would be procedurally inappropriate for us to conclude that [plaintiff] was diligent, but [the] facts aren’t enough to conclude that she wasn’t”).

“[A] flexible approach must be employed in applying the ‘possible cause of action’ standard, and . . . ‘courts should consider the totality of information available to the plaintiff, including [plaintiff’s] own observations of physical discomfort and appearance, [plaintiff’s] familiarity with the condition through past experience or otherwise, and [plaintiff’s] physician’s explanations of possible causes or diagnoses of [their] condition.’” Hutchinson, 328 Mich App at 129, quoting Solowy, 454 Mich at 227. In Hutchinson, although the plaintiff was “aware that she had a [growing] calcified lump in her breast,” her “subjective concerns as a layperson” that the lump “could have been something more serious, such as cancer,” was not an “objective fact[] that would have led [her] to conclude that the lump was in fact cancer,” when medical providers “continued to tell plaintiff that the calcified lump was benign,”    and plaintiff “did not have any familiarity with breast cancer ‘through past experience or otherwise.’” Hutchinson, 328 Mich App at 137-138. Thus, the trial court erred in concluding plaintiff should have been “aware of an injury in the form of breast cancer, and any possible causation relating to the alleged medical malpractice of defendants, before her definitive diagnosis of breast cancer,” and in dismissing her claim as untimely. Id. at 140.

In Jendrusina, the trial court erred in determining that the plaintiff’s medical malpractice claim against his primary care physician was not timely where the plaintiff knew he was diagnosed with kidney failure but had never seen any of his relevant lab reports or been informed about the abnormalities the reports showed. Id. at 630-632. The Court explained that a reasonable lay person does not have specialized medical knowledge about “the anatomy, physiology, or pathophysiology of kidneys,” nor would a reasonable lay person know “what creatinine is or what an abnormal creatinine level means, in addition to knowing how kidneys fail, why they fail, and how quickly they can fail.” Id. at 631-632. Accordingly, it was not probable that a reasonable lay person in the plaintiff’s position would have discovered the existence of the possible malpractice claim before being told by a medical specialist that earlier action could have prevented dialysis. Id. at 635.

F.Loss-of-Opportunity

 The second sentence of MCL 600.2912a(2) provides that a plaintiff in an action alleging medical malpractice “cannot recover for loss of an opportunity to survive or an opportunity to achieve a better result unless the opportunity was greater than 50%.” “[T]he spirit of the lost-opportunity doctrine under MCL 600.2912a(2)” is “to allow for the recovery of the loss of an opportunity to survive and not merely the initial opportunity to survive.” Benigni v Alsawah, ___ Mich App ___, ___ (2022). The “loss-of-opportunity doctrine” applies “to cases where the plaintiff suffers a loss of an opportunity to survive or achieve a better result.” Id. at ___. However, “the second sentence of [MCL 600.2912a(2)] applies only to medical malpractice cases that plead loss of opportunity and not to those that plead traditional medical malpractice[.]”O’Neal v St John Hosp & Med Ctr, 487 Mich 485, 506 (2010). Thus, “whether the second sentence of MCL 600.2912a(2) applies in a given case depends on the nature of the claims.” Benigni, ___ Mich App at ___.

In Benigni, the Estate of Patricia Benigni (“Estate”) alleged that defendants “failed to timely diagnose Patricia’s recurrence of colorectal cancer, causing [her] to suffer adverse sequela, including death.” Benigni, ___ Mich App at ___. The Estate claimed that “[c]atching the recurrence earlier would have given Patricia a better prognosis, including survival and a cure.” Id. at ___. On appeal, the Benigni Court held that because “Patricia actually suffered an adverse result (in this case death), this [was] a traditional medical malpractice case, not one for lost opportunity.” Id. at ___.

G.Death of a Plaintiff

“If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action that survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run.” MCL 600.5852(1). However, no action under MCL 600.5852 may be commenced “later than 3 years after the period of limitations has run.” MCL 600.5852(4). “[T]he death saving provision of MCL 600.5852 [does] not toll or otherwise prevent the running of the six-year statute of repose^[24] contained in MCL 600.5838a(2).” Burton v Macha, 303 Mich App 750, 757 (2014).

“[T]he 2-year period under [MCL 600.5852(1)] runs from the date letters of authority are issued to the first personal representative of an estate.” MCL 600.5852(2). “[L]etters of authority establishing an estate are ‘issued’ on the date they are signed by the register or the probate judge.” Jesse Estate v Lakeland Specialty Hosp, 328 Mich App 142, 150 (2019). “Except as provided in [MCL 600.5852(3)], the issuance of subsequent letters of authority does not enlarge the time within which the action may be commenced.” MCL 600.5852(2).

“If a personal representative dies or is adjudged by a court to be legally incapacitated within 2 years after his or her letters are issued, the successor personal representative may commence an action alleging medical malpractice that survives by law within 1 year after the personal representative died or was adjudged by a court to be legally incapacitated.” MCL 600.5852(3).

Notwithstanding MCL 600.5852(1) and MCL 600.5852(3), an action may not be commenced under MCL 600.5852 “later than 3 years after the period of limitations has run.” MCL 600.5852(4).²⁵

H.Medical Malpractice Trial

See Chapter 7 for general information on conducting civil jury and bench trials.

See the Michigan Judicial Institute’s Evidence Benchbook, Chapter 4, regarding the admission of expert testimony at a medical malpractice trial. See also the Michigan Judicial Institute’s Criteria for Admission of Expert Testimony Flowchart.

I.Judgment

Generally, MCR 2.601 et seq.²⁶ governs any issues regarding a judgment in a medical malpractice action. However, MCL 600.6306a²⁷ specifically provides that “[a]fter a verdict is rendered by a trier of fact in favor of a plaintiff in a medical malpractice action, an order of judgment shall be entered by the court. Subject to [MCL 600.2959²⁸], the order of judgment shall be entered against each defendant, including a third-party defendant, in the . . . order and in the following amounts [as set forth in MCL 600.6306a(1)]. See MCL 600.6306a(2)-(3), for information on reducing a judgment when a plaintiff is assigned a percentage of fault or on judgments involving joint and several liability.