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Another malpractice case dismissed because of one day error in computing "waiting period."


Part of malpractice "reform" secured by special interests in Michigan was a 180-day "waiting period" following a detailed "Notice of Intent" that would theoretically allow malpractice defendants to negotiate a settlement with injury victims.  The idea was presented to legislators as a means of keeping claims from clogging the court system.  This detailed scheme of notice, waiting period and delayed filing with concomitant affidavits of merit has resulted in a bountiful means of dismissing valid claims without a day in court.

A wealth of claims have now been dismissed because of perceived procedural deficiencies, mostly minor, which have prevented the victims from a hearing on the merits.  The most recent of these decisions was handed down this week in Hackett v. St. John Hospital, when the Court of Appeals granted summary disposition of the victim's lawsuit.  Citing a recent decision of the Republican majority of Michigan's Supreme Court, the appeals panel concluded that filing her lawsuit one day before the 182 day waiting period had expired would permanently preclude Ms. Hackett from pursuing a negligence claim.

The appeals panel concluded that the recently adopted Supreme Court precedent "trumped" longstanding precedent, statutory analysis, and Court Rules which had previously elevated seeking a just outcome above minor procedural errors.  Despite a Court Rule and statute which were previously believed to allow litigants the right to amend minor procedural defects, the Court held that the victim was precluded from correcting her calendaring error.  It did not matter whether the Defendants suffered any prejudice, and as one of the Republican Justices protested at the time, it also did not matter whether the Defendants had complied with the operative Court Rules.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
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