Blockades to Justice
The Michigan legislature, under the mantra of "tort reform," has also enacted
other barriers to prevent injured patients from obtaining justice and to ensure
that judicial relief is economically prohibitive. A few examples of these
barriers to justice include:
"Notice of Intent" and Mandatory 6-Month Pre-Lawsuit Waiting Period
A statute bars an injured patient from filing a birth injury lawsuit for
at least 6 months. It requires the injured patient and the patient's attorneys
to conduct a thorough investigation of the medical care - relying only on the
medical records provided by the hospitals and doctors. Very often these medical
records have been altered, falsified, or tampered with by the hospitals or
doctors who know they erred and thus seek to destroy, discard, or conceal all
evidence of the errors.
After the careful medical review, the patient's attorneys prepare and send to
all potential defendants a comprehensive document called a "Notice of Intent to
File Claim" (NOI). Though the patient only has his or her medical record (which
is often corrupted or incomplete) and no access to those who witnessed the
errors, the law demands a precise, accurate, and complete NOI. The NOI must
describe in detail the factual basis for the claim, the standards of practice
applicable to each defendant, the precise manner in which each defendant
breached his or her standards of practice, and the action that each defendant
should have taken to comply with the standard. If an error is unknown, omitted,
or misidentified in the NOI, it can never be corrected or raised (according to
statutory interpretation by Michigan appellate courts).
After this comprehensive document is delivered to all potential defendants, the
injured patietn must then wait 182 days (i.e. 6 months) before a Michigan court
will accept the filing of a birth injury lawsuit. MCL 600.2912b.
The advocates of "tort reform" persuaded Michigan legislators to adopt this
blockade as a sensible tool for resolution. Advocates asserted the mandatory
waiting period would give potential defendants an opportunity to properly
evaluate the claim and promptly resolve those claims with merit. The "frivolous
" claims, meanwhile, would be flushed out and kept out of the courthouse.
Not surprising, the promises and justifications for "tort reform" have proven to
be false and hallow. The birth injury insurers and negligent hospitals
and doctors never, ever, settle claims during this waiting period - regardless
of merit. Instead they use this period to thwart all claims, and to obtain a
complete medical history of the patient in a quest to find dirt or manufacture
Sworn and Precise Affidavits from Medical Experts Must Be Attached to the
In addition to the NOI and mandatory 6-month waiting period, the statute also
requires an injured patient to locate and hire a qualified medical expert
against each defendant. MCL 600.2169 & MCL 600.2912d. The qualified medical
experts must prepare and provide sworn affidavits confirming that the defendant
doctor (or medical facility) committed malpractice and supporting the injured
patient's claims of error. Each affidavit must articulate how the defendant
doctor (or medical facility) breached the standard of care. This requirement
presents many challenges.
First, it requires the injured patient to find qualified doctors who are willing
to testify against a peer. It is virtually impossible to find a willing doctor
in Michigan and generally requires finding qualified and willing doctors in
Moreover, the expert's qualifications cannot be more or less than the defendant's
qualifications but must be equal. As you can imagine, the process of finding
doctors and securing the mandatory affidavits is a great challenge. The process
is further complicated because information in medical records is often missing,
incomplete, or inaccurate, and competent experts will never sign sworn
statements without assurance of complete and accurate information of what
The sworn affidavits must be attached to the complaint when the lawsuit is filed
or the court will not accept the lawsuit.
The blockades to justice don't end when the claim is finally accepted as a
lawsuit by a court. The defendants and their trial lawyers will continue to
hunt for even the tiniest technical flaw in the NOI, affidavits of merit, or
lawsuit complaint. If they happen to find a flaw, which can occur, they will
never disclose it early (for fear it may properly be corrected) but instead will
lie in wait and raise the technical flaw only after the statute of limitations
would have otherwise expired. They employ these wily and sneaky tactics
successfully and are encouraged to do so by Michigan's very conservative and
insurance friendly judiciary.
The purported "reforms" are not only extraordinary impediments to the filing of
a birth injury claim but they also create unjust results and grossly
Please also see the description of Michigan's arbitrary limits in a birth injury
case on damages.
In birth injury cases it is essential that measures be taken promptly to
preserve evidence, review the medical procedures in question, and to enable
physicians or other expert witnesses to thoroughly evaluate the birth record and
injuries. If you or a loved one is a victim of birth injury, call Buchanan & Buchanan, P.L.C.
now at (616) 458-2464 or Toll Free: (800) 272-4080 or CLICK
HERE TO SUBMIT A SIMPLE CASE FORM. The initial consultation is free of
charge, and if we agree to accept your case, we will work on a contingent fee
basis, which means we get paid for our services only if there is a monetary
award or recovery of funds. Don�t delay! You may have a valid claim and be
entitled to compensation for your injuries, but a lawsuit must be filed before
the statute of limitations expires.