Medical Malpractice

What is the "Notice of Intent to File" a Michigan Medical Malpractice Lawsuit?

By David Goguen, J.D., University of San Francisco School of Law
A Michigan medical malpractice plaintiff needs to comply with a number of unique procedural requirements right at the outset of the case, starting with the mailing of a "notice of intent" to file a lawsuit, which must be provided to each potential defendant.

In Michigan, as in most states, a medical malpractice lawsuit is usually more complicated than other civil claims. That's true not just in terms of the medical and legal issues inherent in proving malpractice, but also when it comes to the procedural hoops that a medical malpractice plaintiff (the person filing the lawsuit) must jump through.

These extra procedural steps have been put in place in an effort to discourage the filing of baseless (or downright frivolous) lawsuits against health care providers. (More: Do I Have a Medical Malpractice Case?)

In this article, we'll discuss Michigan's requirement that a medical malpractice plaintiff mail to the defendant a "Notice of Intent to File" the lawsuit. (Read our companion article for details on another key procedural requirement: What is the Affidavit of Merit in a Michigan Medical Malpractice Case?)

182-Day Notice of Intent to File

Under Michigan Compiled Laws section 600.2912b, anyone who intends to file a medical malpractice lawsuit in Michigan must, at least 182 days before actually filing the lawsuit in court, give written notice of that intention to every potential defendant (meaning the health care professional or health care facility you plan to sue).

This 182-day notice period may be reduced to just 91 days if:

  • the plaintiff has already served notice on other potential defendants (meaning other doctors, care facilities, or other care providers) involved in the claim
  • the 182-day notice period has already expired as it applies to those other defendants
  • the plaintiff has already commenced a medical malpractice lawsuit against at least one of those other defendants, and
  • before filing the lawsuit, the plaintiff could not have reasonably identified any other health care professional or health care facility to which notice must be sent.

Note that this is an "and" list, not an "or" list, meaning that all four requirements must be met in order to reduce the notice period from 182 days down to 91. Here's another way of looking at these requirements: If Doctor B emerges as a new defendant after the plaintiff has already filed their medical malpractice lawsuit against Doctor A, and the plaintiff couldn't have reasonably known of Doctor B's liability until now, as long as Doctor A was given notice of the lawsuit, and 182 days have passed since that notice, Doctor B is only entitled to 91 days' advance notice of the lawsuit under Michigan law.

Preparing and Mailing the Notice, and the Defendant's Response

According to Michigan Compiled Laws section 600.2912b, the notice must include details as to:

  • the claimant's factual basis for the claim
  • what "standard of care" should apply to the case (this serves as a sort of measuring stick for assessing the defendant health care provider's conduct)
  • how the health care provider breached that standard of care in treating the plaintiff
  • what the health care provider should have done in order to comply with the standard of care
  • how the health care provider's deviation from the standard of care ended up harming the plaintiff, and
  • the names of all potential defendants being notified of the claimant's intent to sue.

The notice must be mailed to the potential defendant's last known address, and proof of mailing (i.e. sending the notice via certified mail, return receipt requested) constitutes compliance with the notice requirement.

Within 154 days of receiving this notice, the health care provider must give the prospective plaintiff a written response, which must include a factual basis for defense of the claim and statements purporting to show that the care provider's conduct met the applicable treatment standards and/or was not the cause of the plaintiff's alleged harm.

If the claimant does not receive the defendant's written response within this 154-day period, or if at any time during the 182-day period the care provider notifies the claimant that the provider has no intention of settling the claim, the claimant may go ahead and file the lawsuit, provided that there is still time to do so under the Michigan Statute of Limitations for Medical Malpractice Lawsuits.

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