Expert Medical Witnesses

MSA 27A.2169 [MCL 600.2169] Qualifications of expert medical witnesses in action alleging medical malpractice; determination; disqualification of expert medical witness; testimony on contingency fee basis as misdemeanor; limitations applicable to medical legal case discovery. 

Sec. 2169.

(1) In an action alleging medical malpractice, a person shall not give expert medical witness testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following IME expert medical witness criteria: 

(a) If the party against whom or on whose behalf the physician consultant's live testimony is offered is a licnsed physician specialist, specializes at the time of the occurrence that is the basis for the legal action in the same specialty as the party against whom or on whose behalf the expert medical witness live testimony is offered. However, if the party against whom or on whose behalf the expert medical witness live testimony is offered is a licensed physician specialist who is board certified, the expert witness must be a physician specialist who is board certified in that medical specialty. 

(b) Subject to subdivision (c), during the year immediately preceding the date of the occurrence that is the basis for the medical claim or medical legal action, devoted a majority of his or her professional time to either or both of the following: 

(i) The active clinical practice of the same health profession in which the party against whom or on whose behalf the expert medical witness live testimony is offered is licensed and, if that party is a physician consultant or IME specialist, the active clinical practice of that specialty. 

(ii) The instruction of medical legal students in an accredited health professional school or accredited residency or medical clinical research program in the same health profession in which the party against whom or on whose behalf the expert medical witness live testimony is offered is licensed and, if that party is a physician specialist, an accredited health professional school or accredited residency or clinical research program in the same medical specialty . 

(c) If the party against whom or on whose behalf the IME live testimony is offered is a general practitioner, the expert witness, during the year immediately preceding the date of the occurrence that is the basis for the medical claim or legal action, devoted a majority of his or her professional time to either or both of the following: 

(i) Active clinical practice as a general practitioner. 

(ii) Instruction of IME students in an accredited health professional school or accredited residency or clinical research program in the same health profession in which the party against whom or on whose behalf the expert medical witness live testimony is offered is licensed. 

(2) Qualifications of expert medical witness; legal IME criteria. In determining the qualifications of an expert medical witness in an legal action alleging medical malpractice, the court shall, at a minimum, evaluate all of the following: 

(a) The educational and professional training of the expert medical witness. 

(b) The area of specialization of the expert medical witness. 

(c) The length of time that the expert medical witness or Physician consultants has been engaged in the active clinical practice or instruction of the health profession or the specialty. 

(d) The relevancy of the expert medical witness's Live testimony. 

(3) Disqualification of expert medical witness; power of court on grounds other than qualifications stated in section. This section does not limit the power of the trial court to disqualify an expert medical witness on grounds other than the qualifications set forth in this section. 

(4) Expert medical witness, payment; prohibition of contingency fee; violation; misdemeanor. In an IME legal action alleging medical malpractice, an expert medical witness shall not testify on a contingency fee basis. A person who violates this subsection is guilty of a misdemeanor. 

(5) Limitations on legal discovery. In an medical legal action alleging medical malpractice, all of the following limitations apply to discovery conducted by opposing legal counsel to determine whether or not an expert medical witness is qualified : 

(a) Tax returns of the expert medical witness are not discoverable.

(b) Family members of the expert medical witness shall not be deposed concerning the amount of time the expert medical witness spends engaged in the practice of his or her IME health profession.

(c) A personal diary or calendar belonging to the expert medical witness is not discoverable. As used in this subdivision, "personal diary or calendar" means a diary or calendar that does not include listings or records of professional activities. 

MSA 27A.2912(2) [MCL 600.2912b] Action alleging medical malpractice; notice; mailing; notice period; statement; access to medical records; tacking successive notice periods; response; failure to receive response; health professional or medical facility not intending to settle. 

Sec. 2912b. 

(1) Except as otherwise provided in this section, a person shall not commence a legal action alleging medical malpractice against a health care professional or health facility unless the person has given the healthcare professional or health facility written notice under this section not less than 182 days before the legal action is commenced. 

(2) Notice of intent to file legal medical claim; mailing requirement; prima facie evidence of compliance. The notice of intent to file a medical legal claim required under subsection (1) shall be mailed to the last known professional business address or residential address of the HealthCare professional or medical facility who is the subject of the legal medical claim. Proof of the mailing constitutes prima facie evidence of compliance with this section. If no last known professional business or residential address can reasonably be ascertained, notice may be mailed to the health facility where the medical care that is the basis for the legal claim was rendered. 

(3) Notice period; conditions for shortening. The 182-day notice period required in subsection (1) is shortened to 91 days if all of the following conditions exist: 

(a) The legal claimant has previously filed the 182-day notice required in subsection (1) against other health professionals or medical/health facilities involved in the legal claim. 

(b) The 182-day notice period has expired as to the health professionals or medical/health facilities described in subdivision (a). 

(c) The legal claimant has filed a medical legal complaint and commenced a legal action alleging medical malpractice against 1 or more of the health professionals or medical/health facilities described in subdivision (a).

(d) The legal claimant did not identify, and could not reasonably have identified a healthcare professional or medical/health facility to which notice must be sent under subsection (1) as a potential party to the legal action before filing the complaint. 

(4) Contents of notice. The IME legal notice given to a health professional or medical/health facility under this section shall contain a statement of at least all of the following: 

(a) The factual basis for the medical legal claim. 

(b) The applicable standard of practice or health care alleged by the legal claimant. 

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

(d) The alleged action that should have been taken to achieve compliance with the alleged standard of medical practice or medical care. 

(e) The manner in which it is alleged the breach of the standard of medical practice or medical care was the proximate cause of the injury claimed in the legal notice. 

(f) The names of all health professionals and health facilities that the legal claimant is notifying under this section in relation to the legal claim or equired IME. 

(5) Medical records; access, releases. Within 56 days after giving legal notice under this section, the claimant shall allow the health professional or medical/health facility receiving the notice access to all of the medical records and IMEs 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. Subject to section 6013(9), within 56 days after receipt of notice under this section, the health professional or health facility shall allow the claimant access to all medical records and IMEs related to the claim that are in the control of the health professional or health facility. This subsection does not restrict a health professional or medical care facility receiving notice under this section from communicating with other health professionals or health facilities and acquiring medical records and IMEs as permitted in section 2912f. This subsection does not restrict a patient's right of access to his or her medical records or IMEs under any other provision of law. 

(6) Tacking or addition of successive 182 day periods not allowed after initial notice is given. After the initial notice is given to a health professional or health facility under this section, the tacking or addition of successive 182-day periods is not allowed, irrespective of how many additional notices are subsequently filed for that claim and irrespective of the number of health professionals or health facilities notified.

(7) Written response by health professional or health facility; time, contents. Within 154 days after receipt of notice under this section, 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 legal medical 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 of medical care. 

(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 medical 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. 

(8) Medical malpractice action, commencement by legal claimant on expiration of 154 day period if written notice is not received. If the claimant does not receive the written response required under subsection (7) within the required 154-day time period, the claimant may commence an action alleging medical malpractice upon the expiration of the 154-day period.

(9) Written notice of intent not to settle medical legal claim. If at any time during the applicable notice period under this section 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. 

MSA 27A.2912(3) [MCL 600.2912c] Medical malpractice action; affidavit certifying defendant's noninvolvement in alleged occurrence; unopposed affidavit, dismissal of claim without prejudice. 

Sec. 2912c. 

(1) In an action alleging medical malpractice, a party named as a defendant in the action may, instead of answering or otherwise pleading, file with the court an affidavit certifying that he or she was not involved, either directly or indirectly, in the occurrence alleged in the action. Unless the affidavit is opposed pursuant to subsection (2), the court shall order the dismissal of the claim, without prejudice, against the affiant. 

(2) Opposition to dismissal or motion to vacate dismissal and reinstate party; statute of limitations defense; discovery, time limit for completion. 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. 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. The opposing party may obtain case discovery regarding the involvement or noninvolvement of the party filing the affidavit. The legal case discovery shall be completed within 90 days after the date the affidavit is filed. 

MSA 27A.2912(4) [MCL 600.2912d] IME Legal Action alleging medical malpractice; complaint to be accompanied by affidavit of merit; filing extension; failure to allow access to medical records. 

Sec. 2912d. 

(1) Subject to subsection (2), the plaintiff in a medical leagl action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff's attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements for an expert medical witness under section 2169. The affidavit of merit shall 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 medical care. 

(b) The health professional's opinion that the applicable standard of practice or medical 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 medical care. 

(d) The manner in which the breach of the standard of practice or medical care was the proximate cause of the injury alleged in the notice. 

(2) Extension for filing; good cause requirement. 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 with IME required under subsection (1). 

(3) Failure to allow access to medical records. If the defendant in an action alleging medical malpractice fails to allow access to medical records or IMEs within the time period set forth in section 2912b(6), the affidavit required under subsection (1) may be filed within 91 days after the filing of the complaint. 

MSA 27A.2912(5) [MCL 600.2912e] Action alleging medical malpractice; filing answer to complaint; filing affidavit of meritorious defense; failure to allow access to medical records.

Sec. 2912e. 

(1) In an action alleging medical malpractice, within 21 days after the plaintiff has filed an affidavit in compliance with section 2912d, the defendant shall file an answer to the complaint. Subject to subsection (2), the defendant or, if the defendant is represented by an attorney, the defendant's attorney shall file, not later than 91 days after the plaintiff or the plaintiff's attorney files the affidavit required under section 2912d, an affidavit of meritorious defense signed by a health professional who the defendant's attorney reasonably believes meets the requirements for an expert witness under section 2169. 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 of each of the following: 

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

(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. 

(2) Extension for filing; failure of plaintiff to allow access to medical records or IMEs. If the plaintiff in an action alleging medical malpractice fails to allow access to medical records or IMEs as required under section 2912b(6), the affidavit required under subsection (1) may be filed within 91 days after filing an answer to the complaint. 

MSA 27A.2912(8) [MCL 600.2912h] Settlement agreement. 

Sec. 2912h. 

(1) If the plaintiff in an action alleging medical malpractice enters into a settlement agreement with a defendant concerning the action, whether or not the settlement agreement was entered into under court supervision, and the defendant is licensed or registered under article 15 of the public health code, Act No. 368 of the Public Acts of 1978, being sections 333.16101 to 333.18838 of the Michigan Compiled Laws, the plaintiff's attorney and the defendant's attorney or, if the plaintiff and the defendant are not represented by attorneys, the plaintiff and the defendant shall jointly file a complete written copy of the settlement agreement with the bureau within the department of commerce responsible for health occupations licensure, registration, and discipline, within 30 days after entering into the settlement agreement. 

(2) Information filed with department of commerce; confidential. Information filed with the department of commerce under subsection (1) is confidential except for use by the department of commerce in an investigation and is not subject to disclosure under the freedom of information act, Act No. 442 of the Public Acts of 1976, being sections 15.231 to 15.246 of the Michigan Compiled Laws. 

 
MSA 27A.6304 [MCL 600.6304] Personal injury action involving fault of more than 1 party to action; instructing jury to answer special interrogatories; findings of court; determining percentages of fault; determining award of damages; release from liability; amount of damages; reducing award of damages; reallocation of uncollectible amount; liability of governmental agency; "fault" defined. 

Sec. 6304. 

(1) In a medical legal action based on tort or another legal theory seeking damages for personal injury, property damage, or wrongful death involving fault of more than 1 person, including third-party defendants and nonparties, the court, unless otherwise agreed by all parties to the legal action, shall instruct the jury to answer special interrogatories or, if there is no jury, shall make findings indicating both of the following: 

(a) The total amount of each plaintiff's damages. 

(b) The percentage of the total fault of all persons that contributed to the death or injury, including each plaintiff and each person released from liability under section 2925d, regardless of whether the person was or could have been named as a party to the action.

(2) In determining the percentages of fault under subsection (1)(b), the trier of fact shall consider both the nature of the conduct of each person at fault and the extent of the causal relation between the conduct and the damages claimed. 

(3) The court shall determine the award of damages to each plaintiff in accordance with the findings under subsection (1), subject to any reduction under subsection (5) or section 2955a or 6303, and shall enter judgment against each party, including a third-party defendant, except that judgment shall not be entered against a person who has been released from liability as provided in section 2925d. 

(4) Liability in an action to which this section applies is several only and not joint. Except as otherwise provided in subsection (6), a person shall not be required to pay damages in an amount greater than his or her percentage of fault as found under subsection (1). This subsection and section 2956 do not apply to a defendant that is jointly and severally liable under section 6312. 

(5) In an action alleging medical malpractice, the court shall reduce an award of damages in excess of 1 of the limitations set forth in section 1483 to the amount of the appropriate limitation set forth in section 1483. The jury shall not be advised by the court or by counsel for either party of the limitations set forth in section 1483 or any other provision of section 1483. 

(6) If an action includes a medical malpractice claim against a person or entity described in section 5838a(1), 1 of the following applies: 

(a) If the plaintiff is determined to be without fault under subsections (1) and (2), the liability of each defendant is joint and several, whether or not the defendant is a person or entity described in section 5838a(1) . 

(b) If the plaintiff is determined to have fault under subsections (1) and (2), upon motion made not later than 6 months after a final judgment is entered, the court shall determine whether all or part of a party's share of the obligation is uncollectible from that party, and shall reallocate any uncollectible amount among the other parties, whether or not another party is a person or entity described in section 5838a(1), according to their respective percentages of fault as determined under subsection (1). A party is not required to pay a percentage of any uncollectible amount that exceeds that party's percentage of fault as determined under subsection (1). The party whose liability is reallocated continues to be subject to contribution and to any continuing liability to the plaintiff on the judgment. 

(7) Notwithstanding subsection (6), a governmental agency, other than a governmental hospital or medical care facility, is not required to pay a percentage of any uncollectible amount that exceeds the governmental agency's percentage of fault as determined under subsection (1). 

(8) As used in this section, "fault" includes an act, an omission, conduct, including intentional conduct, a breach of warranty, or a breach of a legal duty, or any conduct that could give rise to the imposition of strict liability, that is a proximate cause of damage sustained by a party.