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Nursing Home Medical Malpractice

Nursing home medical malpractice claims are similar to general negligence claims. They both require that the injured person prove that the defendant caused the injury and owed a duty to the injured person to act reasonably to avoid causing an injury. However, medical malpractice claims are different because the law requires that the injured party also proves what a reasonable health care provider would do under the same circumstances. This is called the “standard of care.” Proving this standard adds complexity to any claim of medical malpractice that does not apply in general negligence actions. Because of the complexity of these cases, you’ll want to consult with an experienced personal injury attorney as quickly as possible.

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Additionally, other requirements apply specifically to medical malpractice claims, such as:

Notice of Intent to Sue

Another requirement unique to medical malpractice actions (including nursing home medical malpractice) is called the Notice of Intent to Sue. In most claims for injuries, a plaintiff can sue at any time so long as the case is filed with the Court before the applicable statute of limitations period has run. In a malpractice action, however, a plaintiff must send a detailed summary of the claim to the defendant before filing suit and then wait 182 days before filing the lawsuit with the Court.

When the law requiring the notice to the defendants was passed, the Legislature hoped that providing notice of a potential claim would increase the likelihood that the parties could reach a settlement before a lawsuit was filed, thereby saving time, money, and lessening the burden on the Courts. In practice, the notice requirement has become a basis for defendants to limit claims, prepare defenses, line up witnesses, and generally prevent settlement of claims rather than encourage them. Nevertheless, this requirement exists and makes claims of malpractice more difficult to pursue both in terms of money and time.

Statute of Limitations for Medical Malpractice Claims

Like the other issues discussed here, the time limits for bringing claims of malpractice are complex and unique. You should not hesitate to talk with a lawyer if you feel that you or a loved one have been the victim of nursing home medical malpractice because the time limits are generally shorter than other personal injury claims.

In a very general sense, you have two years to file a claim for medical malpractice. The clock on this two-year period begins running when you are injured, regardless of when you may discover that fact. So, for example, if you are damaged by a surgery and that injury is not apparent to you until later, the two-year period has nevertheless begun to run.

There are exceptions to this general rule. For example, if the claim involves the death of a person within the two year period or 30 days after, then a person representing the deceased has an additional two years to file a claim, but not more than five years from the date of the death. If the inured party is a minor under the age of eight, the period is generally ten years. If the minor is over the age of eight, then the period is generally until that person’s tenth birthday or two years from the date of injury. If a person does not and could not have reasonably discovered the injury and malpractice until after two years has expired, then the claim can be brought within six months of the discovery of the injury.

There are many complicated and specific periods of limitation that apply to these types of claims. You should always discuss your claim with an experienced medical malpractice attorney as soon as you can, as waiting may pose the risk of losing your right to bring any claim forever.

Expert Testimony

As noted above, a malpractice claim requires proving that a licensed health care provider did something, or failed to do something, that is required by the standard of care. The standard of care is essentially what a reasonably trained, similarly educated health care provider in the same specialty would have done, or would not have done, under the same circumstances.

The law requires that the standard of care in each case must be proved by expert testimony. First, the lawsuit must be filed with an affidavit from a health care provider who states that the care provided in your case fell below the standard of care and summarize why and how that happened. Second, should the case go to trial, expert testimony must be presented to establish what the standard of care is and how it violated and caused injury to you.

In most other cases, extensive testimony from experts is not required. In malpractice cases, it is.

Limitations on Damages

Perhaps the most striking difference between medical malpractice actions and other negligence claims is that: in almost all other cases if the jury finds that negligence caused an injury and providers compensation to the injured party is owed, the Court will enter a judgment in the amount of compensation the jury awarded. In other words, if the jury awards $500,000 or %50.00, the jury has the last say and the judge is required to enter that amount in a judgment in favor of the injured person.

In medical malpractice cases, the jury does not have the final say. The Michigan Legislature has passed a law that requires a judge to reduce the amount of compensation provided to the inured party for non-economic damages. Currently, those limits are set at two levels: $832,000 if you are a quadriplegic, paraplegic, or have a serious brain injury, and $465,000 if you are injured in any other way.

Put another way, if you are confined to a wheelchair for the remainder of your days, the Michigan Legislature has determined that your compensation for the loss of quality of your life, your relationships, and every other injury to you that can’t be proved by presenting an invoice worth $832,000, regardless of what a jury of your peers decides.