One reason why injured people need a lawyer who specializes in medical malpractice instead of a general practitioner--or even a personal injury specialist--is that there are so many ways to make a mistake that could result in the case being dismissed, leaving an injured person without any compensation for his or her injuries. Lawyers who specialize in medical malpractice like those at Thompson, O’Neil, & VanderVeen in Traverse City have many years of experience in tracking common errors and avoiding problems. That is especially helpful in the current atmosphere of "reforming" the system to prevent people from successfully pursuing claims.
Michigan courts and laws continue to make the requirements for filing a medical malpractice case extremely onerous. The rules provide for short time limits and circumscribe very narrowly which experts can "qualify" your complaint by supporting it with an affidavit.
If a lawsuit is filed without an affidavit from the proper medical specialists (essentially one qualified to discuss "causation" and one with credentials identical to the defendant's) then the case will be dismissed. If the statute of limitations expired while the case was pending with an "inadequate" affidavit, the injured person is left without any remedy.
Just when lawyers in Michigan thought they’d mastered the latest wrinkle, along came another headache. One panel of the Court of Appeals ruled that a statute from the 1800s takes precedence over a statute from the 1970s and would have thrown out about half of the malpractice claims in the state by requiring that affidavits from other states be accompanied by a certificate from the county clerk of the state where the affidavit was signed, documenting the validity of the notary public. Most states won't even follow this antiquated procedure; and most defense attorneys did not even raise this issue because the suggestion seemed so absurd.
The reaction to this decision came from trial lawyers and even the organization of insurance defense attorneys. All wondered why an antiquated procedure from the 1800s that appeared to be an artifact of a different communication age was being dredged up to throw out cases without regard to substance. Ultimately, the panel of the Court of Appeals was so embarrassed that they re-wrote their ruling. They came to the same outcome, but they provided "warning" so that only future cases will be thrown out on this basis.
On June 9, 2005, the Michigan Court of Appeals released its opinion in Apsey v Memorial Hospital, (On Reconsideration, for publication) Docket No. 251110.
Two of the three judges said the the "certification" requirement will still stand for future cases, while the third judge recognized that the requirement is an absurd waste of time and resources. It is likely the decision will be appealed to the Supreme Court, where it would not be a shock if the extremist majority reinstates the original ruling: they have ruled in favor of insurers and against consumers or victims in well over ninety percent of their decisions.
It is sad, but in Michigan, the bias against injured victims and in favor of insurance companies has to become so overt that even the attorneys who regularly represent insurers object, before the "neutral" courts will issue a ruling that does not give the insurers everything they ask for. I guess this is a victory for claimants--but it is a hollow one. They are still stuck with added expense and paperwork to meet an obtuse requirement that threatens to invalidate their entire claim. It may shock a reader to know that while the consequences for a mistake in the Affidavit are dismissal for a victim who is suing, the consequences for a "defendant" who makes an error in his or her affidavit are nothing: basically the defendant just has to go back and correct the problem with the affidavit. To give you a hint of the magnitude of the problem, cases have been dismissed because the attorney accidentally filed an affidavit from the wrong file; because the attorney mistakenly understood the specialty of the defendant [because of how the doctor listed his qualifications]; because a xerox copy was filed with the court in place of the original or because the proper form wasn't followed. In each case, the merits of the claim were not considered. The court has also refused to consider whether the Defense attorneys "sat on" knowledge of a clerical error in the affidavit until the statute of limitations had run, without advising the Court or the victim's attorney of the alleged flaw.
