Medical malpractice,
professional liability, and health care

The Michigan Supreme Court has ruled, in the case of Wickens v. Oakwood Hospital, that the cause of action for "loss of a chance to survive", as limited by the Michigan tort reform statute, applies only to death claims (i.e., those in which the damage has in fact been incurred) and not to those by living plaintiffs (those for whom the damage has not yet been incurred). Added July 27, 2001

The Federal Department of Health and Human Services has issued final regulations, accompanied by a mammoth set of comments, governing the release of medical information by medical providers, insurers, and managed care organizations. We have posted our own version of the collection (in PDF format - Acrobat Reader needed), with annotations in areas of particular significance to parties to civil litigation claims. Added December 26, 2000

Rep. Tom Bliley has introduced the Patient Protection Act of 2000, a bill to open the National Practitioner Database to the public, patterned after the state program in Massachusetts. Added October 8, 2000

The Michigan Court of Appeals has ruled that a defendant who waited until the time of trial to object to the qualifications of an expert witness to testify had waived the objection. In Greathouse v. Rhodes, M.D., the Court stated that the challenge must be mounted within a reasonable time after the witness is disclosed. NOTE: This aspect of the decision was overruled by the Michigan Supreme Court in 2001. See above. Also of interest is the fact that this case is the first time to our knowledge that a Michigan court has addressed the admissibility of HHS Clinical Practice Guidelines. The ruling: this issue will be handled in the same fashion as the use of learned treatises in general, under the Rules of Evidence. Added September 15, 2000

Sens. Sessions and Grassley have introduced a bill to modify the current bankruptcy law to place a cap (a sliding amount from $250,000 to $1 million, depending on the age of the debtor) on the amount within a pension or retirement account that can be protected from creditors in bankruptcy proceedings. Currently, the bankruptcy law protects assets according to state law criteria, and Michigan protects all retirement accounts without any cap. Added May 14, 2000

The National Institute of Medicine, an arm of the National Academy of Sciences, has published a report entitled To Err Is Human: Building a Safer Health System as the first publication of its Committee on the Quality of Health Care in America. This publication has garnered a tremendous amount of publicity.

The Michigan Court of Appeals has decided in the case of Taylor v Kurapati that Michigan will no longer recognize a cause of action for "wrongful birth". This decision has overturned numerous previous cases which had tried to walk a careful line between "wrongful life" cases (never recognized in this State) and wrongful birth claims, which have been recognized up to this point. The Court has decided to apply this case prospectively only. The opinion provides an extensive analysis of the development of this area of the law of damages. It is remarkable for having come to its decision without the issue having been raised and briefed by the parties to the case.

The Ohio Supreme Court has overturned that state's tort reform statutes, primarily on separation of powers grounds. The case is State ex. rel Ohio Academy of Trial Lawyers v. et al v. Sheward, Judge et al., and was released on August 16, 1999.