Dems gather today to introduce patient safety bills

House and Senate Democrats led by Sen. Bert Johnson (D- Detroit) and Rep. Jeff Irwin (D-Ann Arbor) will host a press conference at noon today to discuss the details of a new package of Patient Safety bills.

The bills will be introduced hours before the Senate Insurance Committee convenes to discuss a package of Republican-sponsored bills that would reform medical malpractice by giving physicians greater immunity if they are acting in the best interest of the patient and using professional judgment.

This Democrats’ legislation seeks to increase penalties for doctors who commit certain offenses such as practicing while under the influence of drugs or alcohol, acting with the intent to harm a patient, or intentionally prescribing unnecessary medication. The bills would also create new reporting requirements and administrative disciplinary action within the Department of Community Health to better monitor doctors who are proven to be bad actors. The lawmakers will be joined by individuals who are victims of medical malpractice.

The conference will be noon today in Room 403 of the Capitol Building in Lansing.

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MSC denies leave in child-abuse reporting case

On a 4-3 vote, the Michigan Supreme Court has upheld a Court of Appeals decision that held a hospital could be held vicariously liable for two doctors who may have breached a statutory duty to report suspected child abuse.

The MSC denied leave in Lee v. Detroit Medical Center (majority opinion) (dissenting opinion).

The key holdings by COA Judge Donald Owens, joined by Judge William Whitbeck: a failure-to-report claim does not sound in medical malpractice and a hospital may be held vicariously liable if staff doctors do not comply with MCL 722.623, which triggers a duty to report when there is “reasonable cause to suspect child abuse or neglect.”

Judge Peter O’Connell, dissenting in Lee, said doctors will be quick to report anytime a child under their care has a bump or a bruise to avoid litigation based on an alleged breach of the reporting duty.

Michigan Lawyers Weekly had a full report of the COA’s decision.

In the MSC, Chief Justice Marilyn Kelly and Justices Michael Cavanagh, Elizabeth Weaver and Diane Hathaway denied leave. Justices Maura Corrigan, Robert Young and Stephen Markman filed vocal dissents.

From Corrigan:

Because MCL 722.623 created a new statutory duty to report suspected abuse or neglect, defendants make a good argument that the Child Protection Law provides exclusive remedies for violation of the duty. …
Justice Maura Corrigan
Under the Child Protection Law, only individuals, not institutions, are required to report. MCL 722.623(1). And only a “person who is required … to report an instance of suspected child abuse or neglect and who fails to do so” is liable for resulting civil damages, MCL 722.633(1). Accordingly, I question whether an institution may be held liable for a reporting violation. …

[T]he Court of Appeals held that a complaint against physicians for alleged failure to report abuse sounds in ordinary negligence rather than medical malpractice. But, as the dissenting Court of Appeals judge aptly explained, doctors use medical judgment to determine whether a child has been abused and, therefore, whether abuse should be reported.

Accordingly, a doctor often will have “reasonable cause to suspect child abuse” that triggers the reporting requirement, MCL 722.623(1)(a), on the basis of different facts and knowledge than would a layperson who is required to report abuse pursuant to the statute. Thus, although laypersons may be held to ordinary negligence standards when they fail to report potential abuse, when a doctor fails to report his medical expertise is called directly into question.

Young joined Corrigan’s dissenting statement.

Markman echoed Corrigan’s statement that the issues are “jurisprudentially significant.”

Specifically at issue here is: Justice Stephen Markman(a) whether a claim against a physician based on a violation of the statute sounds in medical malpractice or ordinary negligence; and (b) whether a hospital may be subject to vicarious liability under the statute. In what are clearly thoughtful majority and dissenting opinions, the Court of Appeals held that a claim based on the Child Protection Law sounds in ordinary negligence and that vicarious liability is applicable.

MSC amends medmal pleading rules

Medical malpractice defendants must challenge a notice of intent to sue when they first respond to a plaintiff’s complaint under the Michigan Supreme Court’s amendment of MCR 2.112.

Challenges to affidavits of merit or affidavits of meritorious defense must be made within 63 days of service.

MCR 2.118 has been amended to provide that an amendment of an affidavit of merit or affidavit of meritorious defense relates back to the date of the original filing of the affidavit.

The full text of the changes, which take effect May 1, are available in ADM File No. 2009-13.

The amendments were adopted on a 4-3 vote. Justices Maura D. Corrigan, Robert P. Young and Stephen J. Markman dissented.

The dissenting justices argued that the amended rules are inconsistent with Kirkaldy v. Rim, 478 Mich. 581 (2007), and that trial courts must now choose whether to follow Kirkaldy or apply the amended rules.

In a concurring statement, Chief Justice Marilyn Kelly responded

The claim is made that these court rule amendments are inconsistent with Kirkaldy v Rim and run afoul of the statute of limitations.

However, the amendments do not overrule that decision, nor are they inconsistent with the statute of limitations. Kirkaldy held that if an affidavit of merit is successfully challenged, the proper remedy is dismissal without prejudice.

The plaintiff is left with whatever time remains in the period of limitations to file a complaint with a conforming affidavit of merit.

Under our amended court rules, which are permissive in nature, affidavits of merit may be amended in accordance with MCL 600.2301 and relate back to the date of the original filing of the affidavit. …

Thus, the Legislature has made clear that, at a court’s discretion, amendment should be permitted in furtherance of justice or when a defect in the proceedings does not affect the substantial rights of the parties.

Our court rule amendments therefore reflect a balance between the remedy of dismissal without prejudice under Kirkaldy and leave to amend with relation back of the amended affidavits of merit.

If a court permits an amended affidavit of merit, MCR 2.118(D) applies. The amended affidavit of merit relates back.

If a court denies a request to amend a defective affidavit of merit, then Kirkaldy provides the appropriate course of action. The action is dismissed without prejudice.

Malpractice damage caps touted in health care reform debate

Medical malpractice costs are getting more attention in the health care debate, despite studies that show capping jury awards in malpractice cases would do little to lower health care spending, according to a story by Maureen Groppe of Gannett’s Washington Bureau, published in this morning’s Lansing State Journal.

Thirty-six states – including Michigan – already limit the compensation patients can get for medical errors.

But the issue is popular with doctors and Republicans and has been cited as a way to bring Democrats and Republicans closer on health care reform.

“I have a real difficult time understanding why liability reform is not on the table,” said Dr. Kenneth Elmassian, an anesthesiologist from the East Lansing area who is on the board of the Michigan State Medical Society. “As a practitioner, I know people do practice defensive medicine … just to kind of cover yourself.”

Republican lawmakers have long touted federal tort reform as way to bring down health care costs.

“For too long, trial attorneys have looked at doctors as ATM machines and have filed countless frivolous lawsuits,” said Rep. Candice Miller, R-Harrison Township. …

Studies show that limiting such awards slows growth in the cost of medical malpractice insurance for doctors.

But lower malpractice insurance rates would have a “very modest” impact on doctors’ fees and would reduce total health care spending by less than 0.2 percent, according to the nonpartisan Congressional Budget Office.