Medical Malpractice and Professional Negligence
Medical malpractice is procedural as much as substantive: notice, affidavit, expert qualification, and limitations decide many cases before the merits.
Elements and expert proof
Malpractice is professional negligence: the plaintiff must establish the standard of care - the ordinary learning, skill, and care of a physician in the same specialty - breach, proximate cause, and damages, generally through expert testimony. MCL 600.2169 requires a testifying expert to be board-certified in the same specialty, or to have practiced it during the year before the alleged malpractice, and to devote the majority of professional time to that specialty.
Procedural gates
- Notice of intent: at least 182 days before filing, the plaintiff must serve a notice containing the particulars required by MCL 600.2912b.
- Affidavit of merit: the complaint must be accompanied by an affidavit of merit signed by a qualified expert under MCL 600.2912d; the defendant responds with an affidavit of meritorious defense under MCL 600.2912e.
- Limitations: two years under MCL 600.5805, plus a six-month discovery rule under MCL 600.5838a; a conforming notice tolls the period under MCL 600.5856.
Worked example
Surgery occurs January 10, 2023, and the injury is discovered the same day. A conforming notice of intent is served November 1, 2024, inside the second year. The period is tolled, but the complaint must be filed within 182 days of the notice. Filing in March 2025 is timely; filing in August 2025 is not.
Traps
Serving a notice missing statutory content and assuming it tolls; using an expert from a different subspecialty; pleading a bad outcome instead of a standard-of-care deviation; overlooking the six-month discovery tail.