HOUSE BILL No. 4571

 

March 12, 2009, Introduced by Reps. Meadows, Lipton and Constan 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 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.