Adrienne Vernell Hughes, Freelance Paralegal
Medical Malpractice claims occur more often than not, and involves a complicated set of statutory and common law rules and procedures different from any other areas of law. The first step in establishing a MedMal case is determining the statute of limitations (time period in which you must file your claim). In most cases, the time period begins when the patient should have known or should have discovered the injury. If your claim is not filed within the specified time period, the court can dismiss your case irregardless of the facts and circumstances. In Michigan, the statute of limitations in a medical malpractice case is two-years, whereas, in a most negligence cases it's three-years.
Next, the most important question to answer in MedMal claims is whether the practitioner violated the applicable standards of care during the claimant's course of treatment. Standards of Care must be established by separate, independent, qualified experts specializing in the applicable areas of medicine. During trial, the expert's testimony is a crucial element in the patient's case.
Medical Malpractice is believed to have occurred when during their course of care and treatment, a patient is harmed by a physician, nurse practitioner, or other medical professional. The most common forms of medical malpractice are:
In most states, in order to file a medical malpractice claim you must prove that a patient-physician relationship existed, that the physician was negligent in their care and treatment, and that their negligent care and treatment was a direct cause of a specific injury and/or death. You must also prove that the specific injury led to specific damages. A common mistake is assuming that just because a medical professional performed below the standards of care, you have a case even though you can't prove that you suffered any harm or specific damages. Specific damages often consist of physical pain, mental anguish, medical bills, loss of employment or loss of employability (loss of earning capacity).
In Michigan, the Medical Malpractice process must begin with the mailing of a Notice of Intent to File a Claim to the practitioner at least 182 days before the actual filing (the notice period is determined by the date the Notice is actually mailed). This Notice must include the following information:
It is detriment to your case to send your Notice of Intent to all involved parties of the suit from the beginning and within the statue of limitations time period. Amending a Notice of Intent to add a nonparty defendants and have the "amended" Notice relate back to the original filing of the Notice for purposes of tolling the statue of limitations is prohibited. If the statue of limitations time period will run out during the 182-Notice period, the statue of limitations time period can be tolled (paused). On the other hand, there is no tolling if the 182-Notice period ends before the statue of limitations runs out. Notice of Intent, the Notice of Intent. The Notice of Intent must be addressed to the attention of the practitioner(s) at their professional or business address, and if filing a vicarious liability claim against a professional corporation, a separate Notice of Intent must be mailed directly to that organization.
Be sure to check back for MedMal Monday #2: Commencement of Action
"i diligunt legem"
"i diligunt legem" is the Latin phrase for "I Love the Law." This blog is created out of my love for the law and my desire to give back to my community.