HB-4571, As Passed House, December 3, 2009

SUBSTITUTE FOR

HOUSE BILL NO. 4571

     A bill to amend 1961 PA 236, entitled

"Revised judicature act of 1961,"

by amending sections 2169, 2912b, 2912d, 2912e, and 5856 (MCL

600.2169, 600.2912b, 600.2912d, 600.2912e, and 600.5856), sections

2169, 2912d, and 2912e as amended and section 2912b as added by

1993 PA 78 and section 5856 as amended by 2004 PA 87.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 2169. (1) In an action alleging medical malpractice, a

person shall not give expert testimony on the appropriate standard

of practice or care unless the person is licensed as a health

professional in this state or another state and, meets the

following criteria:

     (a) If the party against whom or on whose behalf the testimony

is offered is a specialist, specializes at the time of the

occurrence that is the basis for the action in the same specialty

as the party against whom or on whose behalf the testimony is

offered. However, if the party against whom or on whose behalf the

testimony is offered is a specialist who is board certified, the

expert witness must be a specialist who is board certified in that

specialty.

     (b) Subject to subdivision (c), during the year immediately

preceding the date of the occurrence that is the basis for the

claim, or action, devoted a majority of his or her professional

time to either or both of the following:

     (i) The the active clinical practice of the same health

profession in which the party against whom or on whose behalf the

testimony is offered is licensed and , if that party is a

specialist, the active clinical practice of that specialty. the

following, as applicable:

     (a) If the party against whom or on whose behalf the testimony

is offered is a general practitioner, active clinical practice as a

general practitioner with more than a de minimis experience in the

area relevant to the claim.

     (b) If the party against whom or on whose behalf the testimony

is offered is a specialist, the active clinical practice of that

specialty or the specialty the party was practicing at the time of

the occurrence.

     (c) If the party against whom or on whose behalf the testimony

is offered is board certified by the American board of medical

specialties or the American osteopathic association, the active

clinical practice of that board certified specialty or the board

certified specialty the party was practicing at the time of the

occurrence.

(d) (ii) The instruction of students in an accredited health

professional school or accredited residency or clinical research

program in the same health profession in which the party against

whom or on whose behalf the testimony is offered is licensed and,

if that party is a specialist, an accredited health professional

school or accredited residency or clinical research program in the

same specialty the relevant specialty.

     (c) If the party against whom or on whose behalf the testimony

is offered is a general practitioner, the expert witness, during

the year immediately preceding the date of the occurrence that is

the basis for the claim or action, devoted a majority of his or her

professional time to either or both of the following:

     (i) Active clinical practice as a general practitioner.

     (ii) Instruction of students in an accredited health

professional school or accredited residency or clinical research

program in the same health profession in which the party against

whom or on whose behalf the testimony is offered is licensed.

     (2) In determining the qualifications of an expert witness in

an action alleging medical malpractice, the court shall, at a

minimum, evaluate all of the following:

     (a) The educational and professional training of the expert

witness.

     (b) The area of specialization of the expert witness.

     (c) The length of time the expert witness has been engaged in

the active clinical practice or instruction of the health

profession or the specialty.

     (d) The relevancy of the expert witness's testimony.

     (e) The certification, if any, of the expert witness.

     (3) This section does not limit the power of the trial court

to disqualify an expert witness on grounds other than the

qualifications set forth in this section.

     (4) In an action alleging medical malpractice, an expert

witness shall not testify on a contingency fee basis. A person who

violates this subsection is guilty of a misdemeanor punishable by

imprisonment for not more than 1 year or a fine of not more than

$10,000.00, or both.

     (5) In an action alleging medical malpractice, all of the

following limitations apply: to discovery conducted by opposing

counsel to determine whether or not an expert witness is qualified:

     (a) Tax returns Financial records of the an expert witness are

not that relate to the expert's income from acting as an expert

witness are discoverable only by leave of court.

     (b) Family members Information possessed by a family member of

the an expert witness shall not be deposed concerning the amount of

time the expert witness spends engaged in the practice of his or

her health profession is not discoverable unless the family member

is or was employed by the expert witness or an entity that employs

the expert witness.

     (c) A personal diary or calendar belonging to the an expert

witness is not discoverable. As used in this subdivision, "personal

diary or calendar" means a diary or calendar that does not include

listings or records of professional activities.

     Sec. 2912b. (1) Except as otherwise provided in this section,

a person shall not commence file an action alleging medical

malpractice against a health professional or health facility unless

the person has given the health professional or health facility has

been provided written notice of intent to file a claim under this

section not less than 182 105 days before the action is commenced.

     (2) The notice of intent to file a claim required under

subsection (1) shall be mailed to the last known professional

business address or residential address of the health professional

or health facility who that is the subject of the claim. Proof of

the mailing constitutes prima facie evidence of compliance with

this section. If no last known professional business or residential

address can reasonably be ascertained, notice may be mailed to the

health facility where the care that is the basis for the claim was

rendered.

     (3) The 182-day 105-day notice period required in subsection

(1) is shortened to 91 days if all of the following conditions

exist:

     (a) The claimant has previously filed the 182-day 105-day

notice required in subsection (1) against other health

professionals or health facilities involved in the claim.

     (b) The 182-day 105-day notice period has expired as to the

health professionals or health facilities described in subdivision

(a).

     (c) The claimant has filed a complaint and commenced an action

alleging medical malpractice against 1 or more of the health

professionals or health facilities described in subdivision (a).

     (d) The claimant did not identify , and could not reasonably

have identified a health professional or health facility to which

notice must be sent under subsection (1) as a potential party to

the action before filing the complaint.

     (4) The notice given to a health professional or health

facility under this section shall contain a statement of at least

all of the following:

     (a) The factual basis for the claim.

     (b) The applicable standard of practice or care alleged by the

claimant.

     (c) The manner in which it is claimed alleged that the

applicable standard of practice or care was breached by the health

professional or health facility.

     (d) The alleged action that should have been taken to achieve

compliance with the alleged standard of practice or care.

     (e) The If the health professional is not employed by, or the

health facility is not operated by, a governmental entity, a

description of the manner in which it is alleged the alleged breach

of the standard of practice or care was the a proximate cause of

the injury claimed in the notice.

     (f) If the health professional is employed by, or the health

facility is operated by, a governmental entity, a description of

the manner in which the alleged breach of the standard of practice

was the proximate cause of the injury claimed in the notice.

(g) (f) The names of all health professionals and health

facilities the claimant is notifying under this section in relation

to the claim.

     (5) Within 56 days after giving receiving a written request

from a health professional or health facility that has received a

notice under this section, the claimant shall allow the health

professional or health facility receiving the notice access to all

of the medical records related to the claim that are in the

claimant's control , or possession and shall furnish releases for

any medical records related to the claim that are not in the

claimant's control , but or possession of which the claimant has

knowledge. Subject to section 6013(9) 6013(11), within 56 days

after receipt of notice under this section, the health professional

or health facility shall allow the claimant access to all medical

records related to the claim that are in the control or possession

of the health professional or health facility. This subsection does

not restrict a health professional or health facility receiving

notice under this section from communicating with other health

professionals or health facilities and acquiring medical records as

permitted in section 2912f. This subsection does not restrict a

patient's right of access to his or her medical records under any

other provision of law.

     (6) After the initial notice is given to a health professional

or health facility under this section, the tacking or addition of

successive 182-day 105-day periods is not allowed, irrespective of

how many additional notices are subsequently filed for that claim

and irrespective of the number of health professionals or health

facilities notified.

     (7) Within 154 77 days after receipt of notice under this

section, the health professional or health facility against whom

the claim is made shall furnish to the claimant or his or her

authorized representative a written response that contains a

statement of each of the following:

     (a) The factual basis for the defense to the claim.

     (b) The standard of practice or care that the health

professional or health facility claims to be applicable to the

action, identifying any specialty and board certification the

health professional or health facility claims to be applicable to

the action, and that the health professional or health facility

complied with that standard.

     (c) The manner in which it is claimed by the health

professional or health facility that there was compliance with the

applicable standard of practice or care.

     (d) The If the health professional is not employed by or the

health facility is not operated by a governmental entity, a

description of the manner in which the health professional or

health facility contends that the alleged negligence of the health

professional or health facility was not the proximate cause of the

claimant's alleged injury or alleged damage complied with the

standard of practice or how the alleged breach of the standard of

practice was not a proximate cause of the injury claimed in the

notice, or both.

     (e) If the health professional is employed by or the health

facility is operated by a governmental entity, a description of the

manner in which the health professional or health facility complied

with the standard of practice or how the alleged breach of the

standard of practice was not the proximate cause of the injury

claimed in the notice, or both.

     (8) If the claimant does not receive the written response

required under subsection (7) within the required 154-day 77-day

time period, the claimant may commence an action alleging medical

malpractice upon the expiration of the 154-day 77-day period and

all objections to the notice or its contents are waived.

     (9) If at any time during the applicable notice period under

this section a health professional or health facility receiving

notice under this section informs the claimant in writing that the

health professional or health facility does not intend to settle

the claim within the applicable notice period, the claimant may

commence an action alleging medical malpractice against the health

professional or health facility, so long as if the claim is not

barred by the statute of limitations.

     (10) An objection to the form or content of a notice of intent

given under subsection (1) shall be made by motion at the time the

health professional or health facility files its first response to

the complaint. An objection to the form or content of a written

response furnished under subsection (7) shall be made by motion

filed within 28 days after service of the defendant's first

responsive pleading.

     (11) If an objection is not filed under subsection (10) within

the allowable period, all objections to the notice of intent or

response are waived. A motion objecting to a notice of intent or

response shall assert each specific defect being claimed.

     (12) If the trial court determines that a notice of intent or

response does not comply with this section, the specific basis for

that determination shall be set forth by the court and the court

shall allow the claimant, health professional, or health facility

14 days to amend the notice of intent or response to correct the

alleged defect. An amended notice of intent or response under this

subsection relates back to the date the original notice of intent

or response was mailed.

     Sec. 2912d. (1) Subject to subsection subsections (2) and (3),

to comply with section 2912b(1) or (3), as applicable, the

plaintiff in an action alleging medical malpractice or, if the

plaintiff is represented by an attorney, the plaintiff's attorney

shall file with the complaint an affidavit 1 or more affidavits of

merit signed by a health professional who the plaintiff's attorney

reasonably believes meets reasonably believed by the plaintiff to

meet the requirements for an expert witness under section 2169. The

affidavit of merit shall certify that the health professional has

reviewed the notice and all medical records supplied to him or her

by the plaintiff's attorney concerning the allegations contained in

the notice and shall contain a statement of each of the following:

     (a) The applicable standard of practice or care.

     (b) The health professional's opinion that the applicable

standard of practice or care was breached by the health

professional or health facility receiving the notice.

     (c) The actions that should have been taken or omitted by the

health professional or health facility in order to have complied

with the applicable standard of practice or care.

     (d) The manner in which the breach of the standard of practice

or care was the proximate cause of the injury alleged in the

notice. do all of the following:

     (a) Certify that the expert has reviewed the complaint and all

medical records supplied to him or her concerning the allegations

contained in the complaint.

     (b) Specifically identify each of the records reviewed.

     (c) State an expert opinion that the standard of practice or

care that is alleged by the plaintiff to be applicable to the

action was breached by the defendant or defendants.

     (d) State the manner in which the expert asserts that there

was noncompliance with the applicable standard of practice or care.

     (e) Identify each specialty and board certification the expert

asserts is relevant to the action.

     (f) State the manner in which the expert contends that the

alleged injury or damage to the plaintiff was proximately caused by

the care and treatment that is the subject of the complaint.

     (2) Upon motion of a party for good cause shown, the court in

which the complaint is filed may shall grant the plaintiff or, if

the plaintiff is represented by an attorney, the plaintiff's

attorney an additional 28 56 days in which to file the affidavit of

merit required under by subsection (1).

     (3) If the defendant in an action alleging medical malpractice

fails has failed to allow access to medical records or to furnish a

response to the plaintiff's notice of intent within the applicable

time period set forth in section 2912b(6) 2912b, the affidavit

required under subsection (1) may be filed within plaintiff has 91

days after the filing of the complaint is filed to file the

affidavit of merit required by subsection (1).

     (4) If the plaintiff files an amended complaint that sets

forth claims arising out of the same conduct, transaction, or

occurrence set forth, or attempted to be set forth, in the original

complaint, an additional affidavit of merit under this section need

not be filed unless ordered by the court.

     (5) An objection to an affidavit of merit shall be raised in a

motion filed within 63 days after the plaintiff's complaint and

affidavit of merit are served. An objection to an affidavit of

merit that is not included in a timely filed motion is waived. An

objection that the health care professional who signed the

affidavit does not meet the specialty requirements of section 2169

is waived if the defendant did not identify the relevant specialty

or board certification as required by section 2912b(7)(b).

     (6) If the court determines that the plaintiff has not fully

complied with this section, the plaintiff shall be given 56 days to

file 1 or more affidavits that correct the deficiencies identified

by the court. The filing of the affidavits relates back to the date

of filing the original complaint.

     (7) If 1 or more affidavits are filed under subsection (6),

the defendant may renew its objections by filing a motion within 14

days after service of the affidavits. If the court finds that the

affidavit or affidavits filed under subsection (6) are defective,

the court shall dismiss the action.

     Sec. 2912e. (1) In an action alleging medical malpractice,

within 21 days after the plaintiff has filed an affidavit in

compliance with section 2912d, the defendant shall file an answer

to the complaint. Subject to subsection (2), the defendant or, if

the defendant is represented by an attorney, the defendant's

attorney shall file, not later than 91 days after the plaintiff or

the plaintiff's attorney files the affidavit required under section

2912d, an affidavit of meritorious defense signed by a health

professional who the defendant's attorney reasonably believes meets

the requirements for an expert witness under section 2169. The

answer may be verified by the defendant or may be accompanied by an

affidavit of meritorious defense signed by the defendant or an

expert reasonably believed by the defendant to meet the

requirements for an expert witness under section 2169. A verified

answer or affidavit under this subsection shall comply with

subsection (2).

     (2) A verified answer or affidavit of meritorious defense

shall certify do all of the following:

     (a) Certify that the health professional defendant or expert,

as applicable, has reviewed the complaint and all medical records

supplied to him or her by the defendant's attorney concerning that

are relevant to the allegations contained in the complaint. and

shall contain a statement of each of the following:

     (a) The factual basis for each defense to the claims made

against the defendant in the complaint.

     (b) Specifically identify each of the records reviewed.

(c) (b) The State the standard of practice or care that the

health professional or health facility named as a defendant in the

complaint defendant claims to be applicable to the action. and that

the health professional or health facility complied with that

standard.

(d) (c) The State the manner in which it is claimed by the

health professional or health facility named as a defendant in the

complaint the expert or the defendant alleges that there was

compliance with the applicable standard of practice or care.

     (e) Identify each specialty and board certification the expert

or the defendant alleges is relevant to the action.

(f) (d) The State the manner in which the health professional

or health facility named as a defendant in the complaint expert or

the defendant contends that the alleged injury or alleged damage to

the plaintiff is not related to was not proximately caused by the

care and treatment rendered that is the subject of the complaint.

     (3) Subject to subsections (4) and (5), within 56 days after

filing an answer under subsection (1), if the defendant has filed a

verified answer or an affidavit of meritorious defense signed by

the defendant, the defendant shall file an affidavit of meritorious

defense that complies with subsection (2) and is signed by an

expert who is reasonably believed by the defendant to meet the

requirements for an expert witness under section 2169.

(4) (2) If the plaintiff in an action alleging medical

malpractice fails to allow access to medical records as required

under section 2912b(6) 2912b, the affidavit required under

subsection (1) may be filed within defendant has 91 days after

filing an the answer to the complaint is filed to file the

affidavit of meritorious defense required by subsection (3).

     (5) On motion of a defendant for good cause shown, the court

shall grant the defendant an additional 56 days in which to file

the affidavit of meritorious defense required by subsection (3).

     (6) If a defendant files an amended answer that sets forth

defenses arising out of the same conduct, transaction, or

occurrence set forth, or attempted to be set forth, in the original

answer, an additional affidavit of meritorious defense under

subsection (3) need not be filed unless ordered by the court.

     (7) An objection to an affidavit of meritorious defense filed

under subsection (3) shall be raised in a motion filed within 63

days after the affidavit of meritorious defense is filed. An

objection to an affidavit of meritorious defense filed under

subsection (3) that is not included in a timely filed motion is

waived.

     (8) If the court determines based on a timely filed motion

that the defendant has not fully complied with subsection (3), the

defendant shall be given 56 days to file 1 or more affidavits of

meritorious defense that comply with subsection (3) to correct the

deficiencies identified by the court. The filing of the affidavits

relates back to the date of filing the original answer. If the

court finds that the affidavit or affidavits filed under this

subsection are defective, the court shall enter judgment for the

plaintiff.

     Sec. 5856. The statutes of limitations or repose or any time

periods for filing an action are tolled in any of the following

circumstances:

     (a) At Notwithstanding section 2912b or 2912d, at the time the

complaint is filed, if a copy of the summons and complaint are

served on the defendant within the time set forth in the supreme

Michigan court rules.

     (b) At the time jurisdiction over the defendant is otherwise

acquired.

     (c) At the time notice is given in compliance with within the

applicable notice period under section 2912b, if during that the

applicable notice period a claim would be barred by the statute of

limitations or repose; but in this case as untimely. If this

subdivision applies, the statute is tolled not longer than the

number of days equal to the number of days remaining in the

applicable notice period after the date notice is given for 182

days beginning the day the notice is given under section 2912b.