Medical malpractice, attorney fees and settlements in Michigan

Before filing a malpractice suit, MCL 600.2912b(1) requires written notice to each health professional and health facility at least 182 days before the action is commenced. The notice must state the factual basis, the standard of care, how it was breached, what should have been done, how the breach caused the injury, and the names of everyone notified.

The notice goes by mail to the provider's last known professional or residential address, and proof of mailing is prima facie evidence of compliance. Under MCL 600.2912b(4), the notice must contain a statement of at least: the factual basis for the claim; the applicable standard of practice or care; the manner in which it was breached; the action that should have been taken to comply; the manner in which the breach was the proximate cause of the injury; and the names of all health professionals and facilities notified. Within 56 days after notice, the claimant must allow the provider access to related medical records in the claimant's control and provide releases for records not in the claimant's control, and the provider must give the claimant access to its records within 56 days of receiving notice. After the first notice, successive 182-day periods are not allowed. A defective notice can cause problems with tolling and dismissal, so drafting it with care matters. Complete records should be requested before drafting.

Authority: MCL 600.2912b. Reviewed Oct. 2026.

The waiting period is 182 days, and the provider has 154 days to respond in writing. If no response arrives in 154 days, the claimant may sue when that period ends. If the limitations period would otherwise run during the notice period, the notice tolls it for no longer than the number of days remaining in the notice period after the notice is given, under MCL 600.5856(c). The notice period can be shortened to 91 days in limited situations.

MCL 600.2912b(7) requires a written response within 154 days stating the factual basis for the defense, the standard of care the provider claims applies and was met, how compliance occurred, and why the alleged negligence was not the proximate cause. Subsection (8) lets the claimant sue when the 154 days expire without a response. Under subsection (9), if the provider says in writing at any time during the notice period that it does not intend to settle, the claimant may sue sooner, so long as the claim is not barred. Subsection (3) shortens the period to 91 days when notice was already given to other providers, the 182 days have expired as to them, a complaint is on file, and the new provider could not reasonably have been identified earlier. MCL 600.5856(c) tolls the statute when notice is given in compliance with the notice period, but only if a claim would otherwise be barred during that period, and not longer than the days remaining in the notice period after the notice is given. Timing is delicate, so both the limitation date and the first day suit is allowed should be calendared.

Authority: MCL 600.2912b; MCL 600.5856. Reviewed Oct. 2026.

Under MCL 600.2912d(1), the plaintiff's attorney must file with the complaint an affidavit of merit signed by a health professional whom the attorney reasonably believes meets the requirements of MCL 600.2169. The affidavit must certify review of the notice and records and state the standard of care, the breach, what should have been done, and how the breach caused the injury.

The affidavit is a threshold document that has to accompany the complaint. The signer must be someone the attorney reasonably believes meets the qualification rules in MCL 600.2169, which this answer does not summarize. It must say that the health professional reviewed the notice and the medical records supplied, and must address the standard of practice or care, the opinion that the standard was breached by the provider receiving the notice, the actions that should have been taken or omitted, and the manner in which the breach caused the alleged injury. Subsection (2) lets a court grant an additional 28 days for good cause on motion. Subsection (3) allows 91 days after the complaint is filed if the defendant failed to allow access to medical records on time. A missing or defective affidavit can put the case at risk, so finding and vetting the right physician before filing is a large part of the early work.

Authority: MCL 600.2912d; MCL 600.2169. Reviewed Oct. 2026.

The general period is 2 years under MCL 600.5805(8). A malpractice claim accrues at the time of the act or omission, not when it is discovered, but MCL 600.5838a(2) allows suit within 6 months after the plaintiff discovers or should have discovered the claim if later, with an outer limit of 6 years from the act or omission, subject to exceptions.

MCL 600.5838a(1) says a malpractice claim accrues at the time of the act or omission regardless of when the plaintiff discovers it. Under subsection (2), an action may be commenced within the applicable period in section 5805 or sections 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later, and not later than 6 years after the act or omission, with exceptions for fraudulent concealment and for permanent loss of or damage to a reproductive organ resulting in inability to procreate. The burden of proving that the claim was not and should not have been discovered at least 6 months before the ordinary period expired is on the plaintiff. The notice of intent period tolls the statute under MCL 600.5856(c) within its limits, and minors have special rules under MCL 600.5851. A medical malpractice case that is not commenced in time is barred, so the discovery date needs documentation.

Authority: MCL 600.5805; MCL 600.5838a; MCL 600.5856; MCL 600.5851. Reviewed Oct. 2026.

Yes, on noneconomic damages. MCL 600.1483 limits the total noneconomic damages recoverable by all plaintiffs from all defendants to a base statutory amount of $280,000, or $500,000 if specified catastrophic injuries are shown, such as quadriplegia, or permanent cognitive impairment that leaves the plaintiff unable to make independent life decisions or perform daily activities. The state treasurer adjusts these limits annually for inflation, so the current figures are higher than the base numbers.

The statute applies to claims for damages alleging medical malpractice. The $500,000 tier applies if the plaintiff is hemiplegic, paraplegic or quadriplegic with total permanent functional loss of limbs caused by brain or spinal cord injury; has permanently impaired cognitive capacity that makes the plaintiff incapable of making independent, responsible life decisions and of independently performing daily activities; or has permanent loss of or damage to a reproductive organ resulting in inability to procreate. Under subsection (4), the treasurer adjusts the limits each calendar year for changes in the consumer price index, so the current cap should be checked in the treasurer's published figures for the year the cap applies. Noneconomic loss includes pain, suffering, inconvenience, physical impairment, disfigurement, loss of society and companionship, and loss of consortium, including claims under the wrongful death statute. Economic damages such as medical expense and lost income are not subject to this cap. The cap should be explained early, since it shapes whether a malpractice case makes economic sense.

Authority: MCL 600.1483. Reviewed Oct. 2026.

Yes, if that person owed the injured person a legal duty. Under MCL 600.2957(1), the trier of fact allocates fault to each person in direct proportion to percentage of fault, regardless of whether the person is, or could have been, named as a party. Under MCL 600.2956, each defendant's liability is generally several only, not joint, so a defendant pays only its share, subject to exceptions.

This system is why identifying every responsible person matters. MCL 600.2956 says that, except as provided in section 6304, in a personal injury, property damage or wrongful death case the liability of each defendant is several only and not joint, though an employer's vicarious liability for an employee is not abolished. MCL 600.2957(1) lets the jury assign fault to nonparties, such as an unknown driver, a contractor, or someone who settled. Fault can be assigned only to a person who owed the injured person a legal duty, as the Michigan Supreme Court held in Romain v Frankenmuth Mut Ins Co, 483 Mich 18 (2009). Subsection (2) lets a party move within 91 days after identification of a nonparty for leave to file an amended pleading against that nonparty. A fault finding against a nonparty does not make the nonparty liable in that action. If a defendant blames an empty chair and you did not sue that person, the share assigned may be lost. Other responsible parties should be investigated before filing, and MCR 2.112(K), which governs notices of nonparty fault, watched so claims against additional parties can be added in time.

Authority: MCL 600.2956; MCL 600.2957; Romain v Frankenmuth Mut Ins Co, 483 Mich 18, 21-22 (2009); MCR 2.112(K). Reviewed Oct. 2026.

Under MCR 8.121, the maximum allowable contingent fee in a personal injury, wrongful death or no-fault benefits case is one-third of the amount recovered. The fee is computed on the net sum recovered after disbursements properly chargeable to the claim, and the agreement must be in writing with a copy given to the client. Fees awarded against an insurer under MCL 500.3148 are outside the cap.

MCR 8.121(B) sets the maximum at one-third of the amount recovered, and subrule (C) computes it on the net sum after deducting disbursements properly chargeable to enforcing the claim, with taxed costs and interest in a judgment counted as part of the amount recovered. For a settlement payable in installments, the fee is computed using the present value of the future payments. A lawyer may agree to a lower fee, and the lawyer must advise the client before entering a contingent arrangement that other fee arrangements, such as hourly, are available. Contingent fee agreements must be in writing, with a copy to the client. Receiving more than the permitted fee is treated as a clearly excessive fee, unless it results from an award of attorney fees under MCL 500.3148 or another statute, rule or sanction. Medical bills, liens and costs can affect what you net, so ask for the arithmetic in writing before a settlement is accepted. I explain my fee arrangement at the consultation, before you decide whether to hire me.

Authority: MCR 8.121; MCL 500.3148. Reviewed Oct. 2026.

Yes, once a lawsuit has been filed. Under MCR 2.420, when an action is brought for a minor by a next friend, guardian or conservator, the judge assigned to the case must pass on the fairness of a proposed settlement, and in a personal injury claim the child generally appears in court unless the judge excuses it for good cause. If the settlement requires paying the child more than $5,000 in a single year during minority, the court rule requires the probate court to appoint a conservator first. At $5,000 or less in a year, the money may instead be paid under MCL 700.5102, a statute that now allows payment to the person who has the child's care and custody up to $50,000 a year, and the court rule's wording, not the statute's higher limit, sets the conservator requirement in a settlement.

The rule applies to consent judgments, settlements and dismissals pursuant to settlement in cases brought for a minor or a legally incapacitated individual, and to distributions from a wrongful death claim. The judge to whom the case is assigned decides fairness and may require medical testimony if not satisfied about the extent of the injury. If the next friend, guardian or conservator is also a claimant who shares in the recovery, a guardian ad litem must be appointed to approve the settlement. Two different dollar figures come up in minors' settlements, and they come from two different sources. The court rule, MCR 2.420(B)(4), says that if the settlement requires paying the minor more than $5,000, or installments that exceed $5,000 in any single year during minority, a conservator must be appointed by the probate court before the judgment or dismissal is entered, the judgment must make payment to the conservator, and the court needs written verification, on the form approved by the state court administrator, that the probate court has passed on the sufficiency of the conservator's bond. If the settlement does not require paying more than $5,000 to the minor in any single year, the rule says the money may be paid under MCL 700.5102. That statute was amended in 2024 (2024 PA 1, effective Feb. 21, 2024). It now lets a person who owes money to a minor pay up to $50,000 a year to the minor if married, to the individual who has care and custody of the minor and with whom the minor lives, to a guardian, or into an insured savings account in the minor's name, and the amount is adjusted each year under MCL 700.1210. The statute does not apply if the payer knows a conservator has been appointed or that a conservator proceeding is pending, and whoever receives the money for the child must use it for the child's support and education and keep any excess for the child. The court rule has not been changed to match the statute, so a settlement in a pending case that pays a child more than $5,000 in a year still calls for a conservator under the rule's wording, even though the statute's limit is higher. Because the two figures differ, confirm the handling with the court before the settlement terms are set. If a trust is created for the child, the probate court must approve the trust. Before a lawsuit is filed, the Estates and Protected Individuals Code governs settlement of the child's claim instead, with different steps, and the order of steps matters so funds are released properly.

Authority: MCR 2.420; MCL 700.5102; MCL 700.1210; 2024 PA 1. Reviewed Oct. 2026.

Generally yes, for past damages. Under MCL 600.6013, interest on a money judgment in a civil action runs from the date the complaint was filed, calculated at 6-month intervals at a rate of 1% plus the average 5-year Treasury note auction rate, compounded annually. Interest is not allowed on future damages, and a rejected written settlement offer from the defendant that is filed with the court and is at least 90% of the final judgment can cut off interest.

MCL 600.6013(8) is the rate rule for complaints filed on or after January 1, 1987: interest is calculated at 6-month intervals from the date of filing the complaint at 1% plus the average rate paid at 5-year Treasury note auctions in the six months before July 1 and January 1, as certified by the state treasurer, and is compounded annually on the entire judgment, including attorney fees and other costs. Subsection (1) says that for complaints filed on or after October 1, 1986, interest is not allowed on future damages from filing to judgment. Under subsection (9), if the party against whom judgment is rendered made a bona fide, reasonable written offer of settlement in a tort case that was rejected, the court orders that interest is not allowed beyond the date the offer was filed with the court. Under subsection (15), a defendant's offer qualifies only if it is not less than 90% of the amount the plaintiff actually receives through judgment, and under subsection (14) an offer not accepted within 21 days is treated as rejected. Subsection (13) works the other way: a plaintiff's rejected offer that is filed with the court and is not more than 110% of the judgment adds 2 percentage points to the rate from the date of rejection. Subsection (10) says otherwise interest runs to satisfaction. Interest can add up in a long case, so settlement offers, and the date they are filed, deserve attention.

Authority: MCL 600.6013. Reviewed Oct. 2026.

Often not on the compensatory part. Under federal law, 26 USC 104(a)(2), gross income does not include the amount of any damages, other than punitive damages, received by suit or agreement, as lump sums or periodic payments, on account of personal physical injuries or physical sickness. Punitive damages and amounts that are not on account of physical injury can be treated differently.

The exclusion in 26 USC 104(a)(2) is what people usually mean when they say settlements are not taxed. It covers damages received on account of personal physical injuries or physical sickness, whether paid in one sum or over time. The text carves out punitive damages, and the exclusion depends on the payment being on account of a physical injury or physical sickness, so claims that are only for emotional distress, lost profits, interest or property damage can have different treatment. Settlement documents therefore matter, and how a settlement allocates the money among categories can affect tax reporting. Michigan no-fault PIP benefits and other insurance payments may be treated by different rules, and this answer is not tax advice. Clients with a large settlement, or a structured one, should speak to a tax professional before signing, and the settlement agreement should describe the nature of the payments accurately.

Authority: 26 USC 104(a)(2). Reviewed Oct. 2026.

Only with court approval. Under MCL 691.1304, a transfer of structured settlement payment rights is not effective, and the obligor or annuity issuer need not pay the buyer, unless the transfer is approved in a final court order based on express findings. The court must find the transfer serves the payee's interests, taking into account the welfare and support of the payee's dependents, that independent advice was given or waived in writing, and that the discount rate does not exceed 25% per year.

The statute is designed to protect people from selling future payments too cheaply. MCL 691.1304 requires a final court order with express findings that: the transfer serves the interest of the payee, taking into account the welfare and support of the payee's dependents; the transferee advised the payee in writing to seek independent professional advice and the payee either got the advice or knowingly waived it in writing; the transfer does not contravene a statute or court order; and the discount rate or rates used to determine the present value of the payments do not exceed 25% per year. If the transfer conflicts with an anti-assignment restriction in the settlement and the obligor objects, further findings are required about imminent financial hardship and direct payment to the provider of the goods or services involved. A 25% discount rate can still be expensive, so alternatives should be compared, and it is worth asking how much future income would be given up. Structuring also matters at the start, when a settlement is negotiated.

Authority: MCL 691.1304. Reviewed Oct. 2026.

It can. Under 42 USC 1395y(b)(2), Medicare does not pay for an item or service to the extent payment has been made, or can reasonably be expected to be made, under liability insurance or no-fault insurance. If that coverage has not paid promptly, Medicare may make a conditional payment, and that payment must be reimbursed. Medicare's payments for accident-related care can therefore come into the settlement discussion, and the rules should be checked before any money is paid.

Medicare's secondary payer provisions are in 42 USC 1395y(b). Under subsection (b)(2)(A), Medicare payment may not be made for an item or service to the extent payment has been made, or can reasonably be expected to be made, under an automobile or liability insurance policy or plan, including a self-insured plan, or under no-fault insurance. If that coverage has not paid promptly, Medicare may make a conditional payment, and under (b)(2)(B) that payment is conditioned on reimbursement to the Medicare trust fund. The primary plan's responsibility can be shown by a judgment, by a payment conditioned on a compromise, waiver or release, or by other means, subject to the exceptions in paragraph (9). Under subsection (b)(8), an applicable plan, as paragraph (8)(F) defines that term, must determine whether a claimant is entitled to Medicare and, if so, submit information after the claim is resolved through a settlement, judgment, award or other payment, whether or not liability is admitted. Because Medicare may have made conditional payments for accident-related treatment, every payer should be identified in writing before settling and each asked for its claimed amount. Other payers may also assert reimbursement rights under their own plans or laws, so they should be identified too.

Authority: 42 USC 1395y. Reviewed Oct. 2026.