Michigan’s evolving analysis for whether claims sound in medical malpractice

Introduction
Since 2004, Michigan has applied a two-part test for determining whether a plaintiff’s claim sounds in medical malpractice or an alternative liability theory. While this test remains controlling law in Michigan, subsequent rulings from the state’s intermediate court of appeals occasionally interpret the term ‘claim’ inconsistently in the context of this test. These apparent inconsistencies could have significant implications for insurance carriers writing medical professional liability insurance or general liability insurance in Michigan in light of an amendment to Michigan’s statutory cap on non-economic damages for medical malpractice, which became effective in 2013. The amendment specifically limits, for the first time, the cap’s applicability to ‘claims’ for medical malpractice, rather than ‘actions’ for medical malpractice (suggesting an intent to have the cap apply more narrowly overall).

Two-part test
Michigan imposes several statutory and procedural limitations on medical malpractice claims, such as the state’s statutory cap on non-economic damages for medical malpractice. Michigan plaintiffs that wish to pursue litigation against healthcare professionals or facilities have an incentive to make their claims sound in liability theories other than medical malpractice, to the extent they can reasonably do so. One common way to accomplish this is by characterising the claims as ‘ordinary negligence claims.

In its 2004 ruling in Bryant v OakPointe Villa Nursing Centre, Inc, (1) the Michigan Supreme Court established a two-part test for Michigan courts to apply when determining whether a plaintiff’s claim sounds in medical malpractice (regardless of how the pleadings characterise it).  Step one is to analyse whether a claim “pertains to an action that occurred within the course of a professional relationship”. (2) Step two is to analyse whether that claim “raises questions of medical judgment beyond the realm of common knowledge and experience”.(3)

A claim sounds in medical malpractice if both questions are answered affirmatively.

Post-2004 rulings applying the Bryant test
The Bryant test remains controlling case law in Michigan. However, the nature of the claims that the Michigan Court of Appeals has subjected to the Bryant test have been somewhat inconsistent in recent years.

Some such rulings seem to have interpreted the term ‘claim’ broadly, applying it to the overall nature of the plaintiff’s ‘action’ or ‘complaint’. (4) Other rulings have interpreted the term ‘claim’ more narrowly, examining each specific liability allegation. (5) This latter interpretation appears more consistent with the reasoning used in Bryant itself. The plaintiff in Bryant asserted a single count for ordinary negligence. The Michigan Supreme Court determined that this count consisted of four specific liability allegations and proceeded to subject each individually to the Bryant test. It ultimately held that two of the specific ‘ordinary negligence’ allegations sounded in medical malpractice.

An example of the Michigan Court of Appeals’ seemingly diverging interpretations of the term ‘claim’ and approach to applying the Bryant test can be seen in McIver v St John Macomb Oakland Hospital. (6) The McIver majority interpreted ‘claim’ narrowly, subjecting all of the complaint’s specific liability allegations (which the plaintiff claimed were for ordinary negligence) to the Bryant test. The majority held that a single “narrow allegation” from among them actually did sound in ordinary negligence after applying the Bryant test, but that all others sounded in medical malpractice. A dissenting opinion to this ruling favoured a broader interpretation of the term ‘claim’ and criticised the majority’s methodology, stating:

“the entirety of plaintiff’s negligence claim sounds in professional malpractice… Where the majority errs, in my view, is in parsing plaintiff’s negligence claim into supposedly severable components… It is well-settled that, when evaluating whether a claim sounds in ordinary negligence or in medical malpractice, we must… consider the gravamen of the action by reading the claim as a whole.”   (emphasis in original)(7)

Amendment to statutory cap on non-economic damages Michigan’s statutory cap on non-economic damages for medical malpractice was amended effective March 28 2013. The amendment changed only a few of the statute’s words, but the implications of those few changes could prove significant. The statute’s current version, reflecting the amendment, now states that it applies to “a claim for damages alleging medical malpractice” and total damages for non-economic loss “resulting from the medical malpractice of all defendants”. (8) The statute’s pre-amendment version stated that it applied to “an action for damages alleging medical malpractice” and total damages for non-economic loss “resulting from the negligence of all defendants”.(9)

Comment
No significant Michigan court rulings involving the amended statutory cap have been issued yet. This is primarily because the amended cap applies only to medical malpractice claims that accrue on or after March 28, 2013; the date of accrual for medical malpractice claims in Michigan is the date on which the act or omission giving rise to the claim occurs. (10) In addition, Michigan generally prohibits claimants from filing suit with respect to a medical malpractice claim until 182 days after they provide notice to the intended defendants. For these reasons, most lawsuits alleging medical malpractice claims that would implicate the current amended cap are likely only just starting to be filed.

The fact that the current amended cap specifies that it applies to claims for medical malpractice, rather than actions for medical malpractice, highlights the Michigan Court of Appeals’ occasionally inconsistent interpretations of the term ‘claim’ since 2004 when applying the Bryant test. Last year’s cap amendment indicates that Michigan’s legislature recognises a distinction between the terms ‘claim’ and ‘action’. Otherwise, there would seem to be little reason to have made this change. The other primary statutory wording change effected by the amendment also seems to support a legislative intent to have the cap apply more narrowly. These changes could encourage Michigan plaintiffs to try to assert more specific liability allegations against healthcare professionals or facilities under the guise of ordinary negligence or some other non-medical malpractice liability theory. It also suggests that Michigan appellate rulings favouring a broader interpretation of the term ‘claim’, as equivalent to ‘action’, when applying the Bryant test may become less frequent.

Until case law pertaining to the current amended cap develops and the implications of the recent cap (if any) for how Michigan courts subject claims to the Bryant test become clearer, it may be prudent for insurance carriers writing medical professional liability or general liability insurance in Michigan to ensure that they analyse each specific allegation against a healthcare professional or facility when evaluating coverage. It also may be prudent for Michigan healthcare professionals and facilities to begin notifying both their medical professional liability insurance carriers and their general liability insurance carriers of any potential claim notices that they receive which, in some way, implicate medical care that they have provided, in order to avoid potential gaps in coverage.

(1) 684 NW2d 864 (Mich 2004).

(2) Id.

(3) Id.

(4) See generally Shear v Brinn, 314297, 2014 Mich App LEXIS 416 (Mich Ct App Mar 11 2014); Ivaniszyn v Browning, 307906, 2013 Mich App LEXIS 2152 (Mich Ct App December 19 2013); Lockwood v Mobile Medical Response, Inc, 809 NW2d 402 (Mich Ct App 2011); Johnson v William Beaumont Hospital, 299215, 2011 Mich App LEXIS 1851 (Mich Ct App Oct 20 2011); Crozier v Henry Ford Hospital, 279924, 2008 Mich App LEXIS 2465 (Mich Ct App December 11 2008); Sturgis Bank & Trust Co v Hillsdale Community Health Centre, 708 NW2d 453 (Mich Ct App 2005); Tipton v William Beaumont Hospital, 697 NW2d 552 (Mich Ct App 2005).

 (5) See generally Allen v Gaus, 2014 Mich App LEXIS 376 (February 27 2014); Ray v Botsford General Hospital, 2013 Mich App LEXIS 700 (April 16 2013); Groesbeck v Henry Ford Health System, 307069, 2013 Mich App LEXIS 288 (Mich Ct App February 26 2013); In re Estate of Wilczynski, 2012 Mich App LEXIS 1655 (August 21 2012);  Van Buren v Covenant Healthcare System, 297019, 2012 Mich App LEXIS 8 (Mich Ct App Jan 5 2012); Harrington v Casale, 291211, 2010 Mich App LEXIS 1975 (Mich Ct App Oct 19 2010); Jackson v Harper Hospital, 262466, 2006 Mich App LEXIs 2648 (Mich Ct App Sept 12 2006).

(6) 303090, 2012 Mich App LEXIS 1895 (Mich Ct App Oct 2 2012).

(7) 2012 Mich App LEXIS 1895 at *23-25 (Oct 2 2012).

(8) MICH COMP LAWS § 6001483(A) (2013) (emphasis added).

(9) MICH COMP LAWS § 6001483(A) (2012) (emphasis added).

(10) MICH COMP LAWS § 6005838(A)(1).  See also Potter v McLeary, 774 NW2d 1 (Mich 2009).