Medical malpractice lawsuits are complex legal battles. Medical professionals can’t be held legally culpable for every adverse patient outcome, and courts give significant respect to their professional judgment. To prove negligence or wrongdoing by a healthcare provider, a plaintiff must have substantial evidence and documentation that the provider’s actions (or inaction) failed to meet their professional duty of care. 

Plaintiffs in medical malpractice cases must adhere to each state’s laws and procedural requirements. In Michigan, this includes mailing out a “Notice of Intent to File Claim” 182 days before filing the lawsuit. An “Affidavit of Merit” is filed with the Complaint to begin the court case. Knowing the purpose and requirements of these documents can help you better understand the process of filing a Michigan medical malpractice claim.

The Notice of Intent: Facilitating Pre-Litigation Communication

The Notice of Intent (NOI) gives the potential defendant(s) notice of the plaintiff’s intent to file a medical malpractice lawsuit against them before the suit is filed with the court. This process is intended to promote communication and settlement discussions between the parties, potentially avoiding the need to file and pursue a full-fledged lawsuit.

There are many specific requirements for a Notice of Intent. These include:

  • Written Notice. The notice must be a written document that outlines the allegations of medical malpractice, the basis for the claim, the injuries suffered by the plaintiff, and the damages sought in the case.
  • Identification of Defendants. The notice should identify the healthcare providers and entities accused of medical malpractice.
  • Timing. The notice must be served on the defendants at least 182 days before the lawsuit is filed. This timeframe allows for a period of pre-litigation negotiation and investigation.
  • Response Requirement. Upon receiving the Notice of Intent, the defendants have 154 days to respond to the notice. The response may include an offer to settle, a request for further information, or a denial of liability.

There are many additional requirements and exceptions under the law, so it’s especially important to consult with an experienced attorney to ensure everything is done correctly.

The NOI process allows defendants an opportunity to assess the case, gather evidence, and potentially offer a settlement if they believe the claim is valid. This can allow them to avoid the harm to their reputation of a lawsuit or trial. If the defendants do not respond within the required timeframe, it can result in a legal presumption of negligence, which can be detrimental to their defense.

The Affidavit of Merit: Establishing the Basis for the Case

For other types of Michigan civil cases, such as a property dispute between neighbors, anyone can file a lawsuit by stating the nature of their grievance and a claim for recovery. The named defendant must appear and file an answer to the Complaint; then, the parties conduct investigations and exchange evidence. The defendant can move to dismiss the case if there is insufficient evidence to support the plaintiff’s position, but this often isn’t established until both sides have already invested a lot of time and money – even if the case is entirely baseless.

However, in a Michigan medical malpractice case, the plaintiff must file an Affidavit of Merit along with their Complaint establishing some initial evidentiary support for their claims. This document must be filed with the court and shared with the defendant healthcare provider(s) as part of the pre-litigation process. The primary requirements for an Affidavit of Merit are:

  • Qualified Expert Opinion. The affidavit must include a written opinion from a qualified medical expert. This expert should have relevant experience and expertise in the same medical field as the defendant healthcare provider. The expert’s opinion should state that there is a reasonable basis for the claim and that the defendant’s actions or omissions breached the standard of care.
  • Concise Explanation. The expert’s opinion within the affidavit should provide a clear and concise explanation of the standard of care applicable to the case, how the defendant failed to meet that standard, and how the plaintiff’s injuries directly resulted from the defendant’s negligence.
  • Affidavit Format. The affidavit should also include the expert’s qualifications and credentials. It must be signed by the expert under oath, verifying the truth and accuracy of the information provided.

The Affidavit of Merit essentially serves as the first step in establishing the credibility of the plaintiff’s case. It helps to weed out frivolous claims by ensuring a qualified medical professional has reviewed the case and believes there is a legitimate basis for pursuing legal action. Filing an Affidavit of Merit is a critical requirement in a Michigan medical malpractice case, and failure to do so can result in the case’s dismissal.

The Interplay Between the Affidavit of Merit and the Notice of Intent

The Affidavit of Merit and the Notice of Intent are interconnected in Michigan’s medical malpractice legal process. The Affidavit of Merit is the foundational evidence supporting the plaintiff’s claim of medical negligence. It provides the court and the defendant with a qualified expert’s opinion that a legitimate basis for the case exists.

Simultaneously, the Notice of Intent initiates the pre-litigation phase, helping to facilitate communication and potential settlement discussions between the parties. The strength of the Affidavit of Merit may also influence the defendant’s response; if the expert’s opinion is compelling, the defendant may take the claim more seriously and consider a settlement.

However, if the defendant refuses to engage in meaningful discussions or does not respond within the allotted time, the plaintiff can proceed with filing a lawsuit. When that happens, the Affidavit of Merit and the expert’s opinion it includes become essential evidence in the formal legal proceedings.

Contact an Experienced Michigan Medical Malpractice Attorney

Michigan medical malpractice lawsuits are more complex than other types of personal injury claims. In addition to specific procedural requirements, they usually involve expert testimony and complicated medical issues. If you are considering pursuing a medical malpractice lawsuit in Michigan, consult with an experienced attorney who can guide you through the intricacies of these requirements and help you navigate the legal process effectively.

Dina Zalewski

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Dina Zalewski

Dina Zalewski is an associate in Sommers Schwartz’s Medical Malpractice Litigation and Personal Litigation groups. From a young age, she knew she wanted to be a lawyer and, because her family was directly affected by a healthcare provider’s medical negligence, joining the medical malpractice team here at Sommers Schwartz was a natural fit.