The term “malpractice” refers to the negligence of a professional who is licensed by the State of Michigan, such as a doctor, lawyer, veterinarian, accountant and so on. We also call this professional negligence. “Medical malpractice” refers specifically to negligence committed by a licensed healthcare provider, such as a doctor or nurse, or a licensed health facility, such as a hospital or doctor’s office.
To prove the healthcare provider was negligent, the patient must establish the applicable standard of care and prove that standard of care was “breached” (i.e., not followed). What is negligence? A healthcare provider is “negligent” when he or she failed to act as a reasonable doctor, nurse, nurse practitioner, physician assistant or other healthcare provider. What is reasonable is determined by what a healthcare provider with ordinary knowledge, training, and experience would have done in the same or similar circumstance.
Just proving the healthcare provider, or facility, was negligent is not enough to recover “damages” (monetary compensation for losses). The patient must also prove that the negligence caused an injury and that the injury resulted in damages (i.e. lost wages, medical expenses or pain and suffering). We prove negligence, causation, injury and damages through the litigation process. Litigation doesn’t just mean going to court and having a trial. The litigation process starts months before a lawsuit is even filed, and oftentimes ends before a trial. Here is an outline of the process:
Before a Lawsuit is Filed:
In Michigan, patients must provide each healthcare provider or facility with “notice” that the patient intends to sue. We call this a “Notice of Intent” or “NOI.” It must contain certain information, including (i) the factual basis of the claim, (ii) the applicable standard of care, (iii) the manner in which it is claimed the standard of care was breached, (iv) the actions that should have been taken to achieve compliance with the standard of care, and (v) the manner in which the breach caused the injury. MCL 600.2912b.
Within 154 days of receiving the Notice, every healthcare provider or facility named must respond to the Notice of Intent, and identify(i) the factual basis for the defense of the claim, (ii) the applicable standard of care, (iii) the manner in which the healthcare provider or facility complied with the standard of care, and (iv) the manner in which the healthcare provider or facility contends the alleged injuries were not caused by the alleged negligence. The patient must then wait 182 days after providing the NOI before filing a lawsuit. The purpose of the 182-day waiting period is to give the parties a chance to settle. During this time period, we will contact the healthcare provider or facility and their insurance companies and try to negotiate a settlement. If we can’t settle the case pre-suit, we will file a lawsuit.
The Lawsuit
The Pleadings
A lawsuit begins with the filing and service of a Complaint. The Complaint details the allegations against the healthcare provider or facility. The patient (or the patient’s family if the patient has died) is called the “plaintiff.” The healthcare providers or facilities being sued are called the “defendants.” The defendants have either 21 or 28 days to file an Answer to the Complaint, depending on whether they were served in person or by mail. Together with the Complaint, defendants will typically file “Affirmative Defenses,” which are legal defenses they may raise to the claim.
Discovery
The “discovery period”, the time between filing the Complaint and settling the case or going to trial, is the parties’ opportunity to “discover” each other’s evidence. There is written discovery, depositions, and examinations. Written discovery could be interrogatories (written questions), document production requests, or requests to admit certain facts or the application of facts to law. Depositions are formal, verbal question and answer sessions. Fact witnesses – the patient, patient’s family members, anyone who witnessed the healthcare and treatment or the injuries, and the defendants – are typically deposed first. Expert witnesses retained by the parties are usually deposed later in the case.
Motion Practice
A “motion” is a request that the Court rule on an issue. Throughout the discovery period, “discovery motions” are filed that order a party to respond to discovery or determine the scope of discovery. After the discovery period ends, “dispositive” motions are filed. These are motions that dispose of an issue, or sometimes the entire case. Shortly before trial, Motions in Limine are filed, which will determine the admissibility of certain evidence or testimony at trial.
Alternative Dispute Resolution
After the discovery period ends, there are several opportunities for settlement. At “case evaluation”, the parties’ attorneys present their case to a three-attorney panel (plaintiff, defense and neutral). These attorneys give an amount they think the case should settle for, called an “award.” The parties can either accept or reject the award. If both parties accept, the case is over. If one party accepts and the other rejects, the rejecting party could be subject to sanctions if the case proceeds to trial and the rejecting party loses.
Sometimes the parties use an independent attorney to help resolve the case. This is called “mediation,” and the independent attorney is called a “mediator.” The mediator will talk to both parties about the issues with the case, what he or she thinks the case is worth, and will attempt to help the parties reach a settlement agreement. Most courts hold “settlement conferences” after case evaluation but before the trial is scheduled. Courts vary in how they conduct settlement conferences. Sometimes the judge will be very involved, acting as a mediator. Other times the judge does not involve himself in the discussion, requiring only that the parties appear and at least discuss settlement. And occasionally, if a party steadfastly refuses to discuss settlement, the judge simply lets everyone go home.
Trial
If the case doesn’t settle, the Court issues a trial scheduling order. The trial date is usually scheduled several months after the settlement conference, depending on the Court’s docket. Some cases can and do settle in this time, as trials are becoming rarer. If a settlement is not reached, and a jury trial proceeds, before the trial, jury instructions are prepared, motions about evidence are filed, jury panel questionnaires are reviewed, and juror notebooks are assembled. The jury is selected on the first day of trial, then opening statements are given. Occasionally, the defendant will wait and give his or her opening statement after the plaintiff’s witnesses testify. The plaintiff presents his or her “case in chief” first. This is where the plaintiff must, through documents and witness testimony, establish the elements of medical malpractice (standard of care, breach, causation, injury and damages). Defendant will usually cross-examine each witness.
After the plaintiff’s case in chief, defendants usually make a “motion for a directed verdict.” The defendant argues that the case should end at that point because the plaintiff failed to establish the elements of medical malpractice. These motions are rarely granted. Next, the defendants present their witnesses. Sometimes, the plaintiff will call rebuttal witnesses after the defendants’ witnesses are done. After all of the witnesses have testified, the parties give closing arguments – first the plaintiff, then the defendant. The plaintiff usually gets the last word, and gives a brief rebuttal argument. Then jury instructions are given and the jury deliberates. The jury could deliberate for minutes, hours or days. The jury returns with either a verdict for money damages for the plaintiff or a verdict of “no cause,” which means the defendant won.
After Trial
Litigation does not end with a verdict. Post-trial motions are filed either to overturn the verdict or to lower the amount of the verdict. After those motions, the Court enters a judgment. That judgment is usually appealed. The appeal process generally takes at least a year and can take several years. Sometimes cases settle during the appeal period. The Court of Appeals will either affirm the judgment or, if there were errors during the trial that affected the outcome, reverse and remand for further proceedings. Either party can ask the Michigan Supreme Court to review the Court of Appeals’ order. If the Court of Appeals affirms, and the Supreme Court does not hear the case, the defendant must pay any judgment amount. If the Court of Appeals remands (and the Supreme Court does not hear the case), more proceedings are held in trial court. Sometimes this is just to adjust the judgment amount, but sometimes it could mean a whole new trial. If the Supreme Court hears the case, it will either affirm the Court of Appeals or remand to either the Court of Appeals or trial court for further proceedings.
The litigation process is long and cumbersome. It is a roller coaster, filled with ups and downs. At Hoffer & Sheremet, we recognize how difficult it is for our clients to go through this process. That is why we consider every avenue available, from early settlement through trial and appeal.
