Michigan Distinction Torts Flashcards
Medical Malpractice - Duty
Duty: Must exhibit same skill, knowledge, and care as other Dr.’s in the same community or similar places. (i.e. (City vs rural). Available facilities also taken into account.
Medical Malpractice - Loss of chance Doctrine
Chances of survival before negligence must have been > 50% to recover this type of damage.
Medical Malpractice - Damages, SOL, Releases
- Releases: MI does not allow waiver/release of med-mal liability.
- Statute of Limitations (SOL):
(a) P knows or should know of injury: 2 years from when malpractice was committed.
(b) P does not know nor reasonably should know: 6 years from when malpractice was committed.
(c) Once P knows P has 6 months to file suit. - Damages Cap (Non-economic “NE”)
(a) General NE max = $280K, adjusted for inflation.
(b) Impairment/Loss of important bodily function: $500K, adjusted for inflation.
(c) Important Bodily functions are: loss of reproductive organs, brain or spinal injuries that lead to loss of limb(s) or P’s ability to care for self.
Premises Liability - Michigan’s Policeman’s Rule
- Police and Firefighters who are injured in the line of duty cannot sue for regular negligence.
- But can sue for conduct that is: (a) criminal (b) Intentional (c) Willful (d) Grossly negligent
- Homeowner must act reasonable when personnel arrive.
Premises Liability - Invitees
In MI only people who are on premises to conduct business are labeled invitees.
Governmental Immunity
A government officer or employee acting on behalf of a governmental agency is immune from tort liability.
Elements:
- Act is within scope of job
- Act is not gross negligent
- Actor believes he/she is within scope of authority
No-Fault Insurance Act - General
MI No-Fault Act requires injured plaintiffs to recover from their own insurance in minor accidents, and cannot sue D-driver in tort.
–Minor accidents are those that DO NOT result in the plaintiff’s death, permanent and serious disfigurement, or serious impairment of bodily function.
A serious impairment of bodily function is
(i) an observable or perceivable impairment,
(ii) to an important body function,
(iii) that affects a person’s ability to lead a normal life.
Subjective Test: Has P’s ability to lead a normal life been altered? (i.e. can p do the same things pre and post accident?)
Does not apply to: non-residents, passengers of car not registered in the state, or insured by an insure who does not have MI Certification.
Does Apply to: any accident in USA if MI resident or car registered in MI.
No-Fault Insurance Act - Damages
Non-economic damages not allowed. (i.e. pain and suffering, disfigurement, humiliation, loss of consortium, or loss of enjoyment of life).
Economic damages are allowed.
– Medical expenses, including hospital, doctor, orthopedic devices, medical equipment, rehab (mental, physical, social, speech).
- Incidental expenses: Any cost related to receiving medical treatment or adjusting to post accident life for three years.
- Replacement Services: up to $20 per day to cover household services P can no longer do because of injury for 3 years.
- Funeral expenses as set forth in the insurance policy;
- Entitled to 85% of loss wages P would’ve earned but-for accident for three years.
- Surviving Dependent’s can claim lost financial support if P dies, for three years.
For all benefits capped at 3 years, P can sue D for in a separate action.
No-Fault Insurance Act - 3rd Party Claims
An injured party may be able to bring an action against a negligent driver’s insurance company in tort if the at-fault driver was negligent and the injuries sustained are “serious”, but cannot sue for injuries covered by 1st party claim.
No-Fault Insurance Act - Order of claims
First from own insurer.
Second, insured relative whom you live with. If no such relative then
Third, owner or registrant of car if different from driver.
Fourth driver’s insurance
If none of the above them look to the assigned claims plan.
Does not cover:
- People who stole the car
- People who are uninsured
- 100% Non-residents (Car, P’s and insurance not connected to MI in anyway)
- Employee who can get workers comp.
McCormick Serious Impairment Test. - No Fault test
Three prongs necessary to establish a serious impairment anybody function; one. (1) An objectively manifested impairment (2) of an important body function that (3) affects person’s general ability to lead a normal life.
Worker’s Comp Analysis
Mentally check each of these if faced with a WCA essay.
- Identify if plaintiff is an employee if required.
- Identify where injury occurred and what employee was doing
- Identify if employer is excused due to employee’s fault
- Identify what type of disability worker suffered.
- Four factors to make prima facie case for compensation of lost wages due to work related disability.
- Identify employee remedies
Workers Comp Analysis Step One -
Identify if plaintiff is an employee (if required)
Rule: “ WCA only applies to employee / employer relationships, not independent contractors. To identify if plaintiff is an employee there are 20 factors, but 5 major ones” C.H.E.S.T
Control
Holding plaintiff out as employee
Expenses, employee relies on job to live
Supplies, employer supplies tools to do work
Termination, if employee is fired what happens
Workers Comp Analysis Step Two - Identify where injury occurred and what employee was doing
Rule: “Injury or disability must arise from a work related activity”
Voluntary Company social or recreational activities not covered, but if apart of job it will.
Commute to work does not count, unless on company premises
Workers Comp Analysis Step Three - Identify if employer is excused due to employee’s fault
Rule: “Major violation of company rules done willfully or intentionally by employee will excuse employer from liability.”
Horse play ok if not major violation of company rules.
