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Supreme Court repudiates hyper-technical examination of malpractice notice of intent

Malpractice victims are required to file a detailed "Notice of Intent" six months prior to suing a health care provider in Michigan.  When the victim's suit is filed, it must be accompanied by Affidavits of Merit signed by appropriately specialized physicians or experts.  For the past eight years, the medical profession enjoyed a field day before the "Engler Majority" of the Michigan Supreme Court, consistently dismissing viable, meritorious claims based on alleged technical deficiencies in the Affidavits or Notices.  

Applying the Engler Majority standard, lower courts felt compelled to dismiss claims for all manner of minor procedural deficiencies, and the reported malpractice cases became an incantation of dismissals that never reached the substance of victim claims.  That practice changed this summer when the Supreme Court adopted a more reasonable stance, consistent with statutes and rules of pleading, allowing amendment of good faith notices and affidavits to cure minor defects.  This week, the Supreme Court sent three more cases back to the lower courts, rejecting technical dismissals.

This week's reversals constituted a vindication of judges like Peter O'Connell, who had attempted to apply a reasoned standard to the examination of Notices of Intent and Affidavits of Merit.  O'Connell had dissented, for example, from a decision by the Court of Appeals that had ruled a Notice of Intent defective for inadequately explaining to the physician specialists how failure to treat a thrombosis can lead to death by pulmonary emboli, in Miller v. Malik.  This week's other reversals involved the death of a young woman treated at Northern Michigan Hospital, LaJoice v. Northern Michigan Hospitals, Inc., Brad E. Vazales, MD and Daniel E. McDonnell, et al., and a woman whose left side became paralyzed when she was hospitalized at the University of Michigan, Linda Shember v. University of Michigan, et al.

We don't know if these people have legitimate grievances, but at least their very serious allegations will now be heard "on the merits" and not summarily dismissed based on specious excuses.

Thompson O’Neil, P.C.
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