Civil Law

Areas of

Medical Malpractice

The third largest cause of death of Americans is medical malpractice. (CNBC). Doctors, nurses, and other health professionals make mistakes. When health professionals make mistakes people suffer injuries and sometimes death. A medical malpractice case is the vehicle a person injured by a health professional can use to compensate him or her for the resulting injuries.


This article will explain how medical malpractice in Michigan operates along with the legal mandates for a victim to recover.

Necessary Elements

The term “medical malpractice” refers to the professional negligence of doctors and other medical providers. Medical malpractice requires the injured person to prove: (1) the applicable standard of care, (2) breach of that standard by the medical provider, (3) injury to the patient, and (4) proximate causation between the alleged breach and the injury. Failure to prove any one of these elements is fatal." Cox v. Bd. of Hosp. Managers, 467 Mich. 1, 10, 651 N.W.2d 356 (2002).


Doctors, nurses, and other healthcare providers are highly technical professionals, providing highly technical services to their patients. As such, a person injured by the mistake of a health professional must follow technical rules to establish their prima facie case of medical malpractice.

Notice of Intent

MCL § 600.2912b requires a person alleging medical malpractice to serve a Notice of Intent on the health professional 182 days before any case filing can occur. The legislative purpose behind the Notice of Intent requirement is to provide a mechanism for promoting settlement without the need for formal litigation, reducing the cost of medical malpractice litigation, and providing compensation for meritorious medical malpractice claimants that would otherwise be precluded from recovery because of litigation costs. Driver v. Naini, 490 Mich. 239, 242, 802 N.W.2d 311 (2011).


The Notice of Intent is required by the statute to contain the factual basis for the claim, and the applicable standard of care and how the standard of care was breached by the health professional. The standard of care represents the obligation, or duty, owed from the health professional to the patient. The breach of the standard of care is the mistake that gives rise to a patient’s injury.

Standard of Care

By now, you might be asking what the standard of care is and how is it important to a medical malpractice case. The standard of care is the skill and care ordinarily possessed and exercised by practitioners of the profession in the same or similar localities. Cox v. Bd. of Hosp. Managers, 467 Mich. 1, 21-22, 651 N.W.2d 356 (2002). The standard of care is important because it provides an objective metric to measure the conduct of a health care professional.


Although the standard of care is designed to be objective, it is nevertheless factually sensitive. The standard of care in one geographic location can be different than another area. The standard of care can vary by practice expertise, too. Under the idea of a standard of care, a pediatric internal medical doctor is measured against other pediatric internal medical doctor’s in his geographic location. The standard of care does not compare a pediatric internal medical doctor against a cardiologist. These examples demonstrate how the standard of care can be affected by factual differences.


To establish a standard of care in a particular case, it is necessary to seek the opinions of an expert. For example, if your dentist pulls a healthy tooth from your mouth when he or she was charged with pulling a defective tooth, then an expert in dentistry—likely another dentist—must render an expert opinion regarding the standard of care. The expert witness can establish that your dentist owed you a standard of care, which included not pulling healthy teeth. The expert witness can also provide testimony that the dentist breached the standard of care by pulling a healthy tooth.


In the absence of standard of care as established by expert testimony, the trier of fact—usually the jury—would have no ability to know if a doctor, nurse, or healthcare practitioner did anything wrong or was negligent.

Causation and Damages

The use of expert testimony is critical not just to establishing the standard of care and resulting breach of the standard of care, but also for proving causation and injuries. In order to prevail on a medical malpractice action, the injured patient must also establish causation and damages.


Terms like “proximate cause” or “legal cause” are used to measure causation. When determining proximate cause, the relevant issue is whether or not the breach of the standard of care caused the injury to the patient. To establish the proximate cause of the injury, an injured patient must rely on the opinions of an expert witness. The expert witness can offer his or her opinion as to the cause of the injury, and even the extent of the injury, of the patient. If the injury was caused by the breach of the standard of care by the health professional, then the injured patient would be able to meet his or burden of proving causation.


While causation and injuries largely go hand-in-hand, damages are described as (1) economic and (2) non-economic. “Economic” damages are those that can be calculated with mathematical certainty, such as lost wages, medical bills, and funeral bills. “Non-economic” damages are those that include things like pain and suffering.


Both economic and non-economic damages can be recovered in a medical malpractice case.

Other Considerations Vicarious liability:

The term “vicarious liability” in the context of medical malpractice is when one party is liable for the negligent actions of another party. For example, a doctor who commits medical malpractice can create vicarious liability for the hospital where he or she is working.


Vicarious liability is an important legal doctrine that empowers injured patients to hold health care facilities responsible for the medical malpractice of their employees. In the absence of vicarious liability, recovery for medical malpractice against health care facilities would be difficult, if not impossible.

Tort Reform:

In 1995, the Michigan Legislature passed what is commonly known as “Tort Reform”. MCLS § 600.1483 sets limitations or “caps” for the recovery of non-economic damages in medical malpractice cases. The limits of MCLS § 600.1483 severely reduce the actual non-economic damages a medical malpractice claimant can recover.


At Arnold E. Reed & Associates, P.C., we have been handling medical malpractice cases for decades. We have won millions of dollars for our clients because of our attention to detail. We care enough to do the job right for you. If you have been injured by the mistake of a doctor, nurse, or health care professional, then contact us for more information about your rights