Michigan Birth Injury Litigation

Michigan Birth Injury Litigation 

When your baby was finally delivered he was rushed away to be resuscitated. Maybe you were lucky and he only needed some oxygen. Maybe he had to be incubated. Whatever happened, it was a far cry from what you imagined. Have you been told that your baby has cerebral palsy? Or Erb's palsy? Does your child need lifelong medical care? Are you wondering how you are going to pay those medical FIND MORE LEGAL ARTICLES Type any word(s) SEARCH bills? Are you scared of what will happen to your child if something happens to you? When a physician or other healthcare provider was negligent in the delivery of a baby, and injury results, we call it a "birth injury" or "birth trauma" case.

It is a sub-type of medical malpractice. But at Hoffer & Sheremet we handle birth injury cases a little differently from a typical medical malpractice case. We keep an eye on the future and do what we can to make sure your child will be taken care of in the years to come. How Do Medical Malpractice Cases Work in Michigan? “Medical malpractice” refers specifically to negligence committed by a licensed healthcare provider, such as a doctor or nurse, or a licensed health facility, such as a hospital or doctor’s office.

 To prove the healthcare provider was negligent, the patient must establish the applicable standard of care and prove that standard of care was “breached” (i.e., not followed). What is negligence? A healthcare provider is “negligent” when he or she failed to act as a reasonable doctor, nurse, nurse practitioner, physician assistant or other healthcare provider. What is reasonable is determined by what a healthcare provider with ordinary knowledge, training, and experience would have done in the same or similar circumstance. Just proving the healthcare provider, or facility, was negligent is not enough to recover “damages” (monetary compensation for losses).

The patient must also prove that the negligence caused an injury and that the injury resulted in damages (i.e. lost wages, medical expenses or pain and suffering). We prove negligence, causation, injury, and damages through the litigation process. Litigation doesn’t just mean going to court and having a trial.

The litigation process starts months before a lawsuit is even filed, and oftentimes ends before a trial. Here is an outline of the process: --Before a Lawsuit is Filed In Michigan, patients must provide each healthcare provider or facility with “notice” that the patient intends to sue. We call this a “Notice of Intent” or “NOI.” It must contain certain information, including (i) the factual basis of the claim, (ii) the applicable standard of care, (iii) the manner in which it is claimed the standard of care was breached, (iv) the actions that should have been taken to achieve compliance with the standard of care, and (v) the manner in which the breach caused the injury. MCL 600.2912b.

The NOI must be served within the statute of limitation period. Within 154 days of receiving the Notice, every healthcare provider or facility named must respond to the Notice of Intent, and identify (i) the factual basis for the defense of the claim, (ii) the applicable standard of care, (iii) the manner in which the healthcare provider or facility complied with the standard of care, and (iv) the manner in which the healthcare provider or facility contends the alleged injuries were not caused by the alleged negligence.

The patient must then wait 182 days after providing the NOI before filing a lawsuit. The purpose of the 182-day waiting period is to give the parties a chance to settle. During this time period, we will contact the healthcare provider or facility and their insurance companies and try to negotiate a settlement. If we can’t settle the case pre-suit, we will file a lawsuit. -The Lawsuit *The Pleadings A lawsuit begins with the filing and service of a Complaint. The Complaint details the allegations against the healthcare provider or facility.

The patient (or the patient’s family if the patient has died) is called the “plaintiff.” The healthcare providers or facilities being sued are called the “defendants.” The defendants have either 21 or 28 days to file an Answer to the Complaint, depending on whether they were served in person or by mail. Together with the Complaint, defendants will typically file “Affirmative Defenses,” which are legal defenses they may raise to the claim. *Discovery After the Complaint is filed, and usually after the defendant has filed an answer, "discovery" begins. This is the chance for each side to learn the other side's position - what documents they have and what their witnesses will say at trial. There is written discovery as well as depositions. Depositions are formal, verbal question and answer sessions. Fact witnesses – the patient, patient’s family members, anyone who witnessed the healthcare and treatment or the injuries, and the defendants – are typically deposed first. Expert witnesses retained by the parties are usually deposed later in the case. *Motion Practice A “motion” is a request that the Court rule on an issue.

Throughout the discovery period, “discovery motions” are filed that order a party to respond to discovery or determine the scope of discovery. After the discovery period ends, “dispositive” motions are filed. These are motions that dispose of an issue, or sometimes the entire case. Shortly before trial, Motions in Limine are filed, which will determine the admissibility of certain evidence or testimony at trial. *Alternative Dispute Resolution After the discovery period ends, there are several opportunities for settlement.

Many times, the parties' will work through their attorneys to reach a resolution. But there are also more formal means of reaching an agreement, including case evalution (where a 3-attorney panel suggests a settlement number), mediation (where each side works with a mediator to reach an agreement), and settlement conference (where the parties meet with the judge to discuss settlement). --Trial If the case doesn’t settle, a trial date is set and the parties begin preparing. Cases still settle during trial prep, and sometimes even after trial has started. The jury is selected on the first day of trial, then opening statements are given.

The plaintiff presents his or her “case in chief” first. This is where the plaintiff must, through documents and witness testimony, establish the elements of medical malpractice (standard of care, breach, causation, injury, and damages). Defendant will usually cross-examine each witness. After the plaintiff’s case in chief, defendants usually make a “motion for a directed verdict.” The defendant argues that the case should end at that point because the plaintiff failed to establish the elements of medical malpractice.

These motions are rarely granted. Next, the defendants present their witnesses. Sometimes, the plaintiff will call rebuttal witnesses after the defendants’ witnesses are done. After all of the witnesses have testified, the parties give closing arguments – first the plaintiff, then the defendant. The plaintiff usually gets the last word, and gives a brief rebuttal argument. Then jury instructions are given and the jury deliberates. The jury could deliberate for minutes, hours or days. The jury returns with either a verdict for money damages for the plaintiff or a verdict of “no cause,” which means the defendant won. --After Trial