Medical malpractice: experts, hospital liability, proof and damages caps in Michigan

Under MCL 600.2169(1), the witness must be a licensed health professional who practices in the same field as the defendant. If the defendant is a physician in a recognized medical specialty, the witness must practice in that same specialty, and be board certified in it if the defendant is. The witness must also have spent most of the year before the events in clinical practice or teaching that field.

Matching is measured at the time of the care, not the trial. In Rock v Crocker, the Michigan Supreme Court held that the board certification requirement applies at the time of the alleged malpractice. In Stokes v Swofford (2024), the Court overruled Woodard v Custer in part. For physician defendants, the matching required by section 2169(1) follows the general specialties recognized by certifying bodies such as the American Board of Medical Specialties, the American Osteopathic Association and the American Board of Physician Specialties, and it does not require matching of subspecialties. Matching is only the first step. Trial courts must still weigh the factors in subsection (2), which include training, area of specialization, years in practice and relevance, and subsection (3) preserves their power to disqualify a witness on other grounds. A separate rule in subsection (1)(c) applies when the defendant is a general practitioner. The affidavit of merit under MCL 600.2912d(1) must be signed by someone the plaintiff's attorney reasonably believes meets section 2169, so this question has to be answered before the lawsuit is filed. Subsection (4) bars a witness from testifying on a contingency fee basis.

Authority: MCL 600.2169; MCL 600.2912d; Stokes v Swofford, 514 Mich 423; 22 NW3d 97 (2024); Rock v Crocker, 499 Mich 247; 884 NW2d 227 (2016). Reviewed Oct. 2026.

Michigan courts ask two questions: did the claim arise within a professional relationship, and does it raise questions of medical judgment beyond common knowledge and experience? If both answers are yes, the claim is medical malpractice and the malpractice procedures apply. If a jury could judge the conduct with everyday common sense, it is ordinary negligence.

The label matters because a malpractice claim carries the notice of intent under MCL 600.2912b, the affidavit of merit under MCL 600.2912d, and the 2-year period in MCL 600.5805(8), with the accrual and discovery rules in MCL 600.5838a, which add six months from discovery for a claim not found within the 2 years but generally allow no more than six years from the act or omission. Ordinary negligence generally has the 3-year period in MCL 600.5805(2). Bryant v Oakpointe Villa Nursing Centre sorted several claims in one nursing home death case. The claims that the facility failed to train its staff to assess the risk of positional asphyxiation and failed to recognize that the resident's bed arrangement posed that risk involved medical judgment, so they sounded in malpractice. The claim that staff did nothing after finding the resident tangled in bedding the day before sounded in ordinary negligence, because no testimony on medical standards was needed to judge a failure to respond to a known hazard. One incident can therefore produce both kinds of claim. Because the answer turns on the facts alleged and not on what a family calls the problem, the shorter malpractice deadline and the notice of intent should be calendared early.

Authority: Bryant v Oakpointe Villa Nursing Centre, Inc, 471 Mich 411; 684 NW2d 864 (2004); MCL 600.2912b; MCL 600.2912d; MCL 600.5805; MCL 600.5838a. Reviewed Oct. 2026.

Sometimes. A hospital is generally not vicariously liable for a physician who is an independent contractor and only uses its facilities. But under Grewe v Mount Clemens General Hospital, if the patient looked to the hospital for treatment and the hospital led the patient to believe the doctors there were its agents, the hospital can be liable through ostensible agency. The question is whether you relied on the hospital or on your own doctor.

Grewe frames the critical question: whether the patient, at admission, was looking to the hospital for treatment or merely viewed it as the place where his own physician would treat him. It is relevant whether the hospital provided the physician or the patient already had a patient-physician relationship. Grewe adopted a three-part test quoted from a California decision: the patient's belief in the doctor's authority must be reasonable, it must be generated by some act or neglect of the hospital, and the patient must not have been negligent in relying on it. Separately, Cox v Flint Board of Hospital Managers holds that a hospital may be directly liable, for example for negligent supervision of staff physicians or selection and retention of medical staff, or vicariously liable for its employees and agents. A hospital "unit" is not an agent, so the plaintiff must prove the standard of care, breach, injury and causation for each agent. Each health professional and health facility must also receive its own notice of intent under MCL 600.2912b(1).

Authority: Grewe v Mount Clemens General Hospital, 404 Mich 240; 273 NW2d 429 (1978); Cox v Flint Board of Hospital Managers, 467 Mich 1; 651 NW2d 356 (2002); MCL 600.2912b. Reviewed Oct. 2026.

A bad outcome alone is not enough. Michigan requires proof of four things: the applicable standard of care, a breach of it by the defendant, an injury, and proximate causation between the breach and the injury. Under MCL 600.2912a(1), the standard for a general practitioner is the one recognized in the community or a similar one, and for a physician in a specialty it is the standard within that specialty.

Failure to prove any one of the four elements defeats the claim, Cox v Flint Board of Hospital Managers. The standard of care is controlled by how other physicians in the same field would act when providing the same treatment, and testimony from a qualified witness is required to establish both the standard and the breach, Stokes v Swofford. MCL 600.2912a(1) measures the standard "in light of the state of the art existing at the time of the alleged malpractice." For a specialty, it is applied in light of the facilities available in the community or other facilities reasonably available under the circumstances. A complication or poor result therefore proves nothing until it is compared with what the standard required then. Nurses are not covered by section 2912a. Under Cox they are held to the skill and care ordinarily possessed by nurses in the same or similar localities. Subsection (2) adds a causation burden: the injury must more probably than not have been proximately caused by the defendant's negligence. The same points appear in the notice of intent under MCL 600.2912b(4) and the affidavit of merit under MCL 600.2912d(1).

Authority: MCL 600.2912a; Cox v Flint Board of Hospital Managers, 467 Mich 1; 651 NW2d 356 (2002); Stokes v Swofford, 514 Mich 423; 22 NW3d 97 (2024); MCL 600.2912b; MCL 600.2912d. Reviewed Oct. 2026.

For 2026, the Michigan Treasury's January 30, 2026 notice sets the malpractice noneconomic damages limit at $596,400, or $1,065,000 when a statutory catastrophic injury exception applies, for causes of action arising after September 30, 1993. Those figures come from the $280,000 and $500,000 base amounts in MCL 600.1483(1), adjusted each year for inflation. The cap does not limit economic damages. The Treasury adjusts the figures every January, so check its latest notice.

The $1,065,000 tier applies only if the court finds one of the exceptions in MCL 600.1483(1)(a) to (c): hemiplegia, paraplegia or quadriplegia from brain or spinal cord injury with total permanent functional loss of a limb; permanently impaired cognitive capacity that leaves the plaintiff unable to make independent, responsible life decisions and permanently unable to perform the activities of normal daily living independently; or permanent loss of or damage to a reproductive organ resulting in inability to procreate. The limit is one total for all plaintiffs and all defendants. Noneconomic loss includes pain, suffering, inconvenience, physical impairment, disfigurement, loss of society and companionship, whether claimed under the wrongful death statute or otherwise, and loss of consortium. Under subsection (4), the State Treasurer adjusts the limits at the end of each calendar year by the cumulative change in the consumer price index, so the numbers change every January. The 2026 notice reports a cumulative 113.0 percent increase over the base amounts, and $280,000 and $500,000 multiplied by 2.13 produce the two figures stated here. Which year's figure applies to a particular judgment is a timing question to confirm against the Treasury notices.

Authority: MCL 600.1483; Michigan Department of Treasury, Limitation on Noneconomic Damages notice (Jan. 30, 2026). Reviewed Oct. 2026.

Not automatically. MCL 600.2912a(2) bars recovery for a lost opportunity to survive or achieve a better result unless the opportunity was greater than 50 percent. But in O'Neal v St John Hospital, the Michigan Supreme Court held that sentence applies only to claims pleaded as loss of opportunity, not to traditional malpractice claims where the negligence more probably than not caused the injury.

The first sentence of MCL 600.2912a(2) is the ordinary rule: the plaintiff must show an injury that more probably than not was proximately caused by the defendant's negligence. In O'Neal, the Court overruled Fulton v William Beaumont Hospital to the extent it led courts to treat what should be traditional malpractice claims as loss-of-opportunity claims. The Court expressly left open the scope, extent and nature of loss-of-opportunity claims, and noted that significant questions surround them. Courts look to the gravamen of the facts pleaded. In Benigni v Alsawah, the Court of Appeals treated a claim that a physician did not investigate rising tumor marker levels and so delayed diagnosing a cancer recurrence, with the patient later dying, as traditional malpractice and not a lost-opportunity claim. That classification does not decide the case, because the plaintiff must still prove proximate causation by testimony that the delay more probably than not caused the harm. A claim framed as only a reduced chance of a better result invites the 50 percent threshold, so how the harm is described and proved matters from the notice of intent forward.

Authority: MCL 600.2912a; O'Neal v St John Hospital & Medical Center, 487 Mich 485; 791 NW2d 853 (2010); Benigni v Alsawah, 343 Mich App 200; 996 NW2d 821 (2022). Reviewed Oct. 2026.