June 24, 2008, Introduced by Rep. Meadows and referred to the Committee on Judiciary.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
by amending sections 2169, 2912b, 2912d, 2912e, and 5856 (MCL
600.2169, 600.2912b, 600.2912d, 600.2912e, and 600.5856), sections
2169, 2912d, and 2912e as amended and section 2912b as added by
1993 PA 78 and section 5856 as amended by 2004 PA 87.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2169. (1) In an action alleging medical malpractice, a
person shall not give expert 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
criteria:
(a)
If the party against whom or on whose behalf the testimony
is
offered is a specialist, specializes at the time of the
occurrence
that is the basis for the action in the same specialty
as
the party against whom or on whose behalf the testimony is
offered.
However, if the party against whom or on whose behalf the
testimony
is offered is a specialist who is board certified, the
expert
witness must be a specialist who is board certified in that
specialty.
(b)
Subject to subdivision (c), during the
year immediately
preceding the date of the occurrence that is the basis for the
claim, or
action, the proposed expert
witness devoted a majority of
his
or her professional time to either or both 1 or more
of the
following:
(a) (i) The
active clinical practice of the same health
profession in which the party against whom or on whose behalf the
testimony
is offered is licensed. and, if that party is a
specialist,
the active clinical practice of that specialty.
(b) If the party against whom or on whose behalf the testimony
is offered is a general practitioner, active clinical practice as a
general practitioner with more than de minimis experience in the
area relevant to the claim.
(c) If the party against whom or on whose behalf the testimony
is offered is a specialist, regardless of whether the party is
board-certified, the active clinical practice of that specialty or
the specialty the party was practicing at the time of the
occurrence.
(d) (ii) The
instruction of 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 testimony is offered is licensed and,
if
that party is a specialist, an accredited health professional
school
or accredited residency or clinical research program in the
same
specialty a relevant
specialty.
(c)
If the party against whom or on whose behalf the 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 claim or 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 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 testimony is offered is licensed.
(2) In determining the qualifications of an expert witness in
an action alleging medical malpractice, the court shall, at a
minimum, evaluate all of the following:
(a) The educational and professional training of the expert
witness.
(b) The area of specialization of the expert witness.
(c) The length of time the expert witness has been engaged in
the active clinical practice or instruction of the health
profession or the specialty.
(d) The relevancy of the expert witness's testimony.
(e) The certification, if any, of the expert witness.
(3) This section does not limit the power of the trial court
to disqualify an expert witness on grounds other than the
qualifications set forth in this section.
(4) In an action alleging medical malpractice, an expert
witness shall not testify on a contingency fee basis. A person who
violates this subsection is guilty of a misdemeanor punishable by
imprisonment for not more than 1 year or a fine of not more than
$10,000.00, or both.
(5) In an action alleging medical malpractice, all of the
following
limitations apply: to discovery conducted by opposing
counsel
to determine whether or not an expert witness is qualified:
(a)
Tax returns Financial
records of the an expert
witness are
not
that relate to the expert's
income from acting as an expert
witness are discoverable only by leave of court.
(b)
Family members Information
possessed by a family member of
the
an expert witness shall not be deposed concerning
the amount of
time the expert witness spends engaged in the practice of his or
her health profession is not discoverable unless the family member
is or was employed by the expert witness or an entity that employs
the expert witness.
(c)
A personal diary or calendar belonging to the an expert
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.
Sec. 2912b. (1) Except as otherwise provided in this section,
a
person shall not commence file
an action alleging medical
malpractice against a health professional or health facility unless
the
person has given the health
professional or health facility has
been provided written notice of intent to file a claim under this
section not less than 182 days before the action is commenced.
(2) The notice of intent to file a claim required under
subsection (1) shall be mailed to the last known professional
business address or residential address of the health professional
or
health facility who that is the subject of the 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 care that is the basis for the claim was
rendered.
(3) The 182-day notice period required in subsection (1) is
shortened to 91 days if all of the following conditions exist:
(a) The claimant has previously filed the 182-day notice
required in subsection (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 subdivision (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 subdivision (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 subsection (1) as a potential party to
the action before filing the complaint.
(4) The notice given to a health professional or health
facility
under this section shall contain a statement of at least
all
of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the
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 practice or care.
(e)
The manner in which it is alleged the breach of the
standard
of practice or care was the proximate cause of the injury
claimed
in the notice.
(e) If the health professional is not employed by, or the
health facility is not operated by, a governmental entity, a
description of the injury that the claimant contends was a
proximate result of the claimed breach of the standard of practice
or care by the health professional or health facility.
(f) If the health professional is employed by, or the health
facility is operated by, a governmental entity, a description of
the injury that the claimant contends was the proximate result of
the claimed breach of the standard of practice or care by the
health professional or health facility.
(g) (f)
The names of all health
professionals and health
facilities the claimant is notifying under this section in relation
to the claim.
(5)
Within 56 days after giving receiving
a written request
from a health professional or health facility that has received a
notice under this section, 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 , or
possession and shall furnish releases
for
any medical records related to the claim that are not in the
claimant's
control , but or
possession of which the claimant has
knowledge.
Subject to section 6013(9), within 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 related to the claim that are in the control or possession
of the health professional or health facility. This subsection does
not restrict a health professional or health facility receiving
notice under this section from communicating with other health
professionals or health facilities and acquiring medical records as
permitted in section 2912f. This subsection does not restrict a
patient's right of access to his or her medical records under any
other provision of law.
(6) 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) 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 claim.
(b) The standard of practice or care that the health
professional or health facility claims to be applicable to the
action, identifying any specialty and board certification 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 malpractice of the
health
professional or health facility was not the a proximate
cause of the claimant's alleged injury or alleged damage.
(8) 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 and all
objections to the notice or its contents are waived.
(9) 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 if the claim is not
barred by the statute of limitations.
(10) An objection to the form or content of a notice of intent
given under subsection (1) or to a written response furnished under
subsection (7) shall be made by motion filed within 28 days after
service of the complaint on all defendants.
(11) If an objection is not filed under subsection (10) within
the 28-day period, all objections to the notice of intent or
response are waived. A motion objecting to a notice of intent or
response shall assert each specific defect being claimed.
(12) If the trial court determines that a notice of intent or
response does not comply with this section, the specific basis for
that determination shall be set forth by the court and the court
shall allow the claimant, health professional, or health facility
14 days to amend the notice of intent or response to correct the
alleged defect. An amended notice of intent or response under this
subsection relates back to the date the original notice of intent
or response was mailed.
Sec.
2912d. (1) Subject to subsection subsections (2) and (3),
to comply with section 2912b(1) or (3), as applicable, the
plaintiff
in an 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 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 1 or more affidavits of
merit that do all of the following:
(a)
The applicable Describe
the standard of practice or care
that the plaintiff claims was applicable.
(b)
The health professional's Contain
an expert opinion that
the applicable standard of practice or care was breached by the
health
professional or health facility. receiving the notice.
(c)
The State 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 State
the expert's opinion that the
injury was proximately caused by the breach of the standard of
practice
or care. was the proximate cause of the injury
alleged in
the
notice.
(e) Are signed by a health professional who is reasonably
believed to meet the requirements for an expert witness under
section 2169.
(2) Upon motion of a party for good cause shown, the court in
which
the complaint is filed may shall grant the plaintiff or, if
the
plaintiff is represented by an attorney, the plaintiff's
attorney
an additional 28 56
days in which to file the affidavit of
merit
required under by subsection
(1).
(3) If the defendant in an action alleging medical malpractice
fails
has failed to allow access to medical records or to furnish a
response to the plaintiff's notice of intent within the applicable
time
period set forth in section 2912b(6) 2912b, the affidavit
required
under subsection (1) may be filed within plaintiff has 91
days
after the filing of the complaint is filed to file the
affidavit of merit required by subsection (1).
(4) If the plaintiff files an amended complaint that sets
forth claims arising out of the same conduct, transaction, or
occurrence set forth, or attempted to be set forth, in the original
complaint, an additional affidavit of merit under this section need
not be filed unless ordered by the court.
(5) An objection to an affidavit of merit shall be raised in a
motion filed within 28 days after the plaintiff's complaint and
affidavit of merit are served. An objection to an affidavit of
merit that is not included in a timely filed motion is waived. An
objection that the health care professional who signed the
affidavit does not meet the specialty requirements of section 2169
is waived if the defendant did not identify the relevant specialty
or board certification as required by section 2912b(7)(b).
(6) If the court determines that the plaintiff has not fully
complied with this section, the plaintiff shall be given 56 days to
file 1 or more affidavits that correct the deficiencies identified
by the court. The filing of the affidavits relates back to the date
of filing the original complaint.
(7) If 1 or more affidavits are filed under subsection (6),
the defendant may renew its objections by filing a motion within 14
days after service of the affidavits.
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
subsections (2)
and (3),
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 with
the answer to the
complaint
1 or more affidavits of meritorious
defense signed by a
health
professional an expert who the defendant's attorney is
reasonably
believes meets believed to
meet the requirements for an
expert witness under section 2169. An affidavit of meritorious
defense shall not be signed by the defendant against whom the
allegations
are made. The An affidavit
of meritorious defense shall
certify
do all of the following:
(a)
Certify that the health professional
expert 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:
(b) Identify the records reviewed.
(c) (a)
The State the factual basis for each defense to the
claims made against the defendant in the complaint.
(d) (b)
The State 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.
(e) Identify each specialty and board certification the health
professional or health facility claims to be applicable to the
action.
(f) (c)
The State 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.
(g) (d)
The State 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 was not proximately caused
by the care and treatment
rendered.
(2) If the plaintiff in an action alleging medical malpractice
fails to allow access to medical records as required under section
2912b(6)
2912b, the affidavit required under subsection (1) may
be
filed
within defendant has 91 days after filing an the
answer to
the complaint is filed to file the affidavit of meritorious defense
required by subsection (1).
(3) On motion of a party for good cause shown, the court shall
grant the defendant an additional 56 days in which to file the
affidavit of meritorious defense required by subsection (1).
(4) If a defendant files an amended answer that sets forth
defenses arising out of the same conduct, transaction, or
occurrence set forth, or attempted to be set forth, in the original
answer, an additional affidavit of meritorious defense need not be
filed unless ordered by the court.
(5) An objection to an affidavit of meritorious defense shall
be raised in a motion filed within 8 days after the defendant's
affidavit of meritorious defense is filed. An objection to an
affidavit of meritorious defense that is not included in a timely
filed motion is waived.
(6) If the court determines based on a timely filed motion
that the defendant has not fully complied with this section, the
defendant shall be given 56 days to file 1 or more affidavits of
meritorious defense that correct the deficiencies identified by the
court. The filing of the affidavits relates back to the date of
filing the original answer.
Sec. 5856. The statutes of limitations or repose or any time
periods for filing an action are tolled in any of the following
circumstances:
(a)
At Notwithstanding section
2912b or 2912d, at the
time the
complaint is filed, if a copy of the summons and complaint are
served
on the defendant within the time set forth in the supreme
Michigan court rules.
(b) At the time jurisdiction over the defendant is otherwise
acquired.
(c)
At the time notice is given in compliance with the
applicable
notice period under section 2912b,
if during that the
applicable
notice period a claim would be barred by
the statute of
limitations
or repose; but in this case, 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
as untimely. If
this subdivision applies, the time to bring
the action is tolled for 182 days beginning the day the notice is
given under section 2912b.