SENATE BILL No. 1118

 

 

May 3, 2012, Introduced by Senators HUNE, MEEKHOF, MOOLENAAR and SMITH and referred to the Committee on Insurance.

 

 

 

     A bill to amend 1961 PA 236, entitled

 

"Revised judicature act of 1961,"

 

by amending sections 2912e, 5852, and 6013 (MCL 600.2912e,

 

600.5852, and 600.6013), section 2912e as amended by 1993 PA 78,

 

section 5852 as amended by 1988 PA 221, and section 6013 as amended

 

by 2002 PA 77.

 

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

 

     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 serves 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) If the plaintiff in an action alleging medical malpractice

 

fails to allow access to medical records as required under section

 

2912b(6), 2912b(5), the affidavit required under subsection (1) may

 

be filed within 91 days after filing an answer to the complaint.

 

     Sec. 5852. (1) If a person dies before the period of

 


limitations has run or within 30 days after the period of

 

limitations has run, an action which that survives by law may be

 

commenced by the personal representative of the deceased person at

 

any time within 2 years after letters of authority are issued

 

although the period of limitations has run. But an action shall not

 

be brought under this provision unless the personal representative

 

commences it within 3 years after the period of limitations has

 

run.

 

     (2) If the action that survives by law is an action alleging

 

medical malpractice, the 2-year period under subsection (1) runs

 

from the date letters of authority are issued to the first personal

 

representative of an estate. Except as provided in subsection (3),

 

the issuance of subsequent letters of authority does not enlarge

 

the time within which the action may be commenced.

 

     (3) If a personal representative dies or is adjudged by a

 

court to be legally incapacitated within 2 years after his or her

 

letters are issued, the successor personal representative may

 

commence an action alleging medical malpractice that survives by

 

law within 1 year after the personal representative died or was

 

adjudged by a court to be legally incapacitated.

 

     (4) Notwithstanding subsections (1) to (3), an action shall

 

not be commenced under this section later than 3 years after the

 

period of limitations has run.

 

     Sec. 6013. (1) Interest is allowed on a money judgment

 

recovered in a civil action, as provided in this section. However,

 

for complaints filed on or after October 1, 1986, interest is not

 

allowed on future damages from the date of filing the complaint to

 


the date of entry of the judgment. As used in this subsection,

 

"future damages" means that term as defined in section 6301.

 

     (2) For complaints filed before June 1, 1980, in an action

 

involving other than a written instrument having a rate of interest

 

exceeding 6% per year, the interest on the judgment is calculated

 

from the date of filing the complaint to June 1, 1980, at the rate

 

of 6% per year and on and after June 1, 1980, to the date of

 

satisfaction of the judgment at the rate of 12% per year compounded

 

annually.

 

     (3) For a complaint filed before June 1, 1980, in an action

 

involving a written instrument having a rate of interest exceeding

 

6% per year, the interest on the judgment is calculated from the

 

date of filing the complaint to the date of satisfaction of the

 

judgment at the rate specified in the instrument if the rate was

 

legal at the time the instrument was executed. However, the rate

 

after the date judgment is entered shall not exceed either of the

 

following:

 

     (a) Seven percent per year compounded annually for a period of

 

time between the date judgment is entered and the date of

 

satisfaction of the judgment that elapses before June 1, 1980.

 

     (b) Thirteen percent per year compounded annually for a period

 

of time between the date judgment is entered and the date of

 

satisfaction of the judgment that elapses after May 31, 1980.

 

     (4) For a complaint filed on or after June 1, 1980, but before

 

January 1, 1987, interest is calculated from the date of filing the

 

complaint to the date of satisfaction of the judgment at the rate

 

of 12% per year compounded annually unless the judgment is rendered

 


on a written instrument having a higher rate of interest. In that

 

case, interest is calculated at the rate specified in the

 

instrument if the rate was legal at the time the instrument was

 

executed. The rate under this subsection shall not exceed 13% per

 

year compounded annually after the date judgment is entered.

 

     (5) Except as provided in subsection (6), for a complaint

 

filed on or after January 1, 1987, but before July 1, 2002, if a

 

judgment is rendered on a written instrument, interest is

 

calculated from the date of filing the complaint to the date of

 

satisfaction of the judgment at the rate of 12% per year compounded

 

annually, unless the instrument has a higher rate of interest. In

 

that case, interest shall be calculated at the rate specified in

 

the instrument if the rate was legal at the time the instrument was

 

executed. The rate under this subsection shall not exceed 13% per

 

year compounded annually after the date judgment is entered.

 

     (6) For a complaint filed on or after January 1, 1987, but

 

before July 1, 2002, if the civil action has not resulted in a

 

final, nonappealable judgment as of July 1, 2002, and if a judgment

 

is or has been rendered on a written instrument that does not

 

evidence indebtedness with a specified interest rate, interest is

 

calculated as provided in subsection (8).

 

     (7) For a complaint filed on or after July 1, 2002, if a

 

judgment is rendered on a written instrument evidencing

 

indebtedness with a specified interest rate, interest is calculated

 

from the date of filing the complaint to the date of satisfaction

 

of the judgment at the rate specified in the instrument if the rate

 

was legal at the time the instrument was executed. If the rate in

 


the written instrument is a variable rate, interest shall be fixed

 

at the rate in effect under the instrument at the time the

 

complaint is filed. The rate under this subsection shall not exceed

 

13% per year compounded annually.

 

     (8) Except as otherwise provided in subsections (5) and (7)

 

and subject to subsection (13), for complaints filed on or after

 

January 1, 1987, interest on a money judgment recovered in a civil

 

action is calculated at 6-month intervals from the date of filing

 

the complaint at a rate of interest equal to 1% plus the average

 

interest rate paid at auctions of 5-year United States treasury

 

notes during the 6 months immediately preceding July 1 and January

 

1, as certified by the state treasurer, and compounded annually,

 

according to this section. Interest under this subsection is

 

calculated on the entire amount of the money judgment, including

 

attorney fees and other costs. In an action for medical

 

malpractice, interest under this subsection on costs or attorney

 

fees awarded under a statute or court rule is not calculated for

 

any period before the entry of the judgment. The amount of interest

 

attributable to that part of the money judgment from which attorney

 

fees are paid is retained by the plaintiff, and not paid to the

 

plaintiff's attorney.

 

     (9) If a bona fide, reasonable written offer of settlement in

 

a civil action based on tort is made by the party against whom the

 

judgment is subsequently rendered and is rejected by the plaintiff,

 

the court shall order that interest is not allowed beyond the date

 

the bona fide, reasonable written offer of settlement is filed with

 

the court.

 


     (10) Except as otherwise provided in subsection (1) and

 

subject to subsections (11) and (12), if a bona fide, reasonable

 

written offer of settlement in a civil action based on tort is not

 

made by the party against whom the judgment is subsequently

 

rendered, or is made and is not filed with the court, the court

 

shall order that interest be calculated from the date of filing the

 

complaint to the date of satisfaction of the judgment.

 

     (11) If a civil action is based on medical malpractice and the

 

defendant in the medical malpractice action failed to allow access

 

to medical records as required under section 2912b(5), the court

 

shall order that interest be calculated from the date notice was

 

given in compliance with section 2912b to the date of satisfaction

 

of the judgment.

 

     (12) If a civil action is based on medical malpractice and the

 

plaintiff in the medical malpractice action failed to allow access

 

to medical records as required under section 2912b(5), the court

 

shall order that interest be calculated from 182 days after the

 

date the complaint was filed to the date of satisfaction of the

 

judgment.

 

     (13) Except as otherwise provided in subsection (1), if a bona

 

fide, reasonable written offer of settlement in a civil action

 

based on tort is made by a plaintiff for whom the judgment is

 

subsequently rendered and that offer is rejected and the offer is

 

filed with the court, the court shall order that interest be

 

calculated from the date of the rejection of the offer to the date

 

of satisfaction of the judgment at a rate of interest equal to 2%

 

plus the rate of interest calculated under subsection (8).

 


     (14) A bona fide, reasonable written offer of settlement made

 

according to this section that is not accepted within 21 days after

 

the offer is made is rejected. A rejection under this subsection or

 

otherwise does not preclude a later offer by either party.

 

     (15) As used in this section:

 

     (a) "Bona fide, reasonable written offer of settlement" means

 

either of the following:

 

     (i) With respect to an offer of settlement made by a defendant

 

against whom judgment is subsequently rendered, a written offer of

 

settlement that is not less than 90% of the amount actually

 

received by the plaintiff in the action through judgment.

 

     (ii) With respect to an offer of settlement made by a

 

plaintiff, a written offer of settlement that is not more than 110%

 

of the amount actually received by the plaintiff in the action

 

through judgment.

 

     (b) "Defendant" means a defendant, a counter-defendant, or a

 

cross-defendant.

 

     (c) "Party" means a plaintiff or a defendant.

 

     (d) "Plaintiff" means a plaintiff, a counter-plaintiff, or a

 

cross-plaintiff.