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What happens if I file an invalid Notice of Intent or Affidavit of Merit in a malpractice case?

In order to pursue a medical malpractice case, a victim of a medical mistake must first send a Notice of Intent to each health care practitioner who may have contributed to the medical error.  It is not adequate to identify anyone as "John Doe" and such a notice will not toll the statute of limitations as to "John Doe."  If it is not readily apparent which medical professionals contributed to the error, the chart must be fly-specked to identify each potential contributor, by name.


The Notice of Intent must be very specific in meeting the statutory requirements, and several "reforming" courts have used the statutory requirements as an excuse to strike down or invalidate a notice of intent.  If this occurs after the statute of limitations has run, in response to an objection by the health care defendant, the claimant will not be able to cure the defect and the case will be dismissed "with prejudice" (i.e., without the right to re-file).


The Notice of Intent controls further conduct of the case, even though the victim/claimant is forced to draft it before the case has been filed or discovery has been allowed.  For this reason, it also requires the input of at least one medical professional. 


After the Notice of Intent is filed, the claimant cannot file suit for 180 days, normally.  This "waiting period" was ostensibly created to allow for a settlement opportunity, however, the medical provider's insurer almost never uses it for that purpose:  instead it is used to investigate the claim and "rally the troops" for a defense.  Under some circumstances the claimant can sue 30 days early.


At the end of the waiting period, the claimant can file a Formal Complaint, however, it must be accompanied by Affidavits of Merit executed by qualified physicians who attest to the breach(es) of the standard of care and who explain how the breach(es) contributed to the victim's damages.  If more than one health care professional contributed to the poor outcome, a "standard of care" affidavit of merit must  be filed by an expert from each related, relevant field of medicine or nursing.  The expert must be qualified under the medical malpractice reform statute to testify at trial, meaning that he or she must have medical credentials essentially identical to the relevant credentials of the Defendant(s).  If there is a flaw in the Affidavit of Merit, it may result in the dismissal of the case.  Again, if the issue is raised after the statute of limitations has run, the victim may not be able to re-file it.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
Toll Free: 1-800-678-1307
Fax: 231-929-7262