Bill Text: MI SB1118 | 2011-2012 | 96th Legislature | Engrossed
Bill Title: Torts; medical malpractice; statute of limitations; revise period of limitations for survival actions and disallow prejudgment interest on attorney fees and costs. Amends secs. 2912e, 5852 & 6013 of 1961 PA 236 (MCL 600.2912e et seq.).
Spectrum: Slight Partisan Bill (Republican 3-1)
Status: (Passed) 2012-12-31 - Assigned Pa 0609'12 [SB1118 Detail]
Download: Michigan-2011-SB1118-Engrossed.html
SB-1118, As Passed House, December 13, 2012
SENATE BILL No. 1118
May 3, 2012, Introduced by Senators HUNE, MEEKHOF, MOOLENAAR and SMITH and referred to the Committee on Insurance.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
by amending sections 2912e, 5852, and 6013 (MCL 600.2912e,
600.5852, and 600.6013), section 2912e as amended by 1993 PA 78,
section 5852 as amended by 1988 PA 221, and section 6013 as amended
by 2002 PA 77.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2912e. (1) In an action alleging medical malpractice,
within 21 days after the plaintiff has filed an affidavit in
compliance with section 2912d, the defendant shall file an answer
to the complaint. Subject to subsection (2), the defendant or, if
the defendant is represented by an attorney, the defendant's
attorney shall file, not later than 91 days after the plaintiff or
the
plaintiff's attorney files serves
the affidavit required under
section 2912d, an affidavit of meritorious defense signed by a
health professional who the defendant's attorney reasonably
believes meets the requirements for an expert witness under section
2169. The affidavit of meritorious defense shall certify that the
health professional has reviewed the complaint and all medical
records supplied to him or her by the defendant's attorney
concerning the allegations contained in the complaint and shall
contain a statement of each of the following:
(a) The factual basis for each defense to the claims made
against the defendant in the complaint.
(b) The standard of practice or care that the health
professional or health facility named as a defendant in the
complaint claims to be applicable to the action and that the health
professional or health facility complied with that standard.
(c) The manner in which it is claimed by the health
professional or health facility named as a defendant in the
complaint that there was compliance with the applicable standard of
practice or care.
(d) The manner in which the health professional or health
facility named as a defendant in the complaint contends that the
alleged injury or alleged damage to the plaintiff is not related to
the care and treatment rendered.
(2) If the plaintiff in an action alleging medical malpractice
fails to allow access to medical records as required under section
2912b(6),
2912b(5), the affidavit required under subsection (1) may
be filed within 91 days after filing an answer to the complaint.
Sec. 5852. (1) If a person dies before the period of
limitations has run or within 30 days after the period of
limitations
has run, an action which that
survives by law may be
commenced by the personal representative of the deceased person at
any time within 2 years after letters of authority are issued
although
the period of limitations has run. But an action shall not
be
brought under this provision unless the personal representative
commences
it within 3 years after the period of limitations has
run.
(2) If the action that survives by law is an action alleging
medical malpractice, the 2-year period under subsection (1) runs
from the date letters of authority are issued to the first personal
representative of an estate. Except as provided in subsection (3),
the issuance of subsequent letters of authority does not enlarge
the time within which the action may be commenced.
(3) If a personal representative dies or is adjudged by a
court to be legally incapacitated within 2 years after his or her
letters are issued, the successor personal representative may
commence an action alleging medical malpractice that survives by
law within 1 year after the personal representative died or was
adjudged by a court to be legally incapacitated.
(4) Notwithstanding subsections (1) to (3), an action shall
not be commenced under this section later than 3 years after the
period of limitations has run.
Sec. 6013. (1) Interest is allowed on a money judgment
recovered in a civil action, as provided in this section. However,
for complaints filed on or after October 1, 1986, interest is not
allowed on future damages from the date of filing the complaint to
the date of entry of the judgment. As used in this subsection,
"future damages" means that term as defined in section 6301.
(2) For complaints filed before June 1, 1980, in an action
involving other than a written instrument having a rate of interest
exceeding 6% per year, the interest on the judgment is calculated
from the date of filing the complaint to June 1, 1980, at the rate
of 6% per year and on and after June 1, 1980, to the date of
satisfaction of the judgment at the rate of 12% per year compounded
annually.
(3) For a complaint filed before June 1, 1980, in an action
involving a written instrument having a rate of interest exceeding
6% per year, the interest on the judgment is calculated from the
date of filing the complaint to the date of satisfaction of the
judgment at the rate specified in the instrument if the rate was
legal at the time the instrument was executed. However, the rate
after the date judgment is entered shall not exceed either of the
following:
(a) Seven percent per year compounded annually for a period of
time between the date judgment is entered and the date of
satisfaction of the judgment that elapses before June 1, 1980.
(b) Thirteen percent per year compounded annually for a period
of time between the date judgment is entered and the date of
satisfaction of the judgment that elapses after May 31, 1980.
(4) For a complaint filed on or after June 1, 1980, but before
January 1, 1987, interest is calculated from the date of filing the
complaint to the date of satisfaction of the judgment at the rate
of 12% per year compounded annually unless the judgment is rendered
on a written instrument having a higher rate of interest. In that
case, interest is calculated at the rate specified in the
instrument if the rate was legal at the time the instrument was
executed. The rate under this subsection shall not exceed 13% per
year compounded annually after the date judgment is entered.
(5) Except as provided in subsection (6), for a complaint
filed on or after January 1, 1987, but before July 1, 2002, if a
judgment is rendered on a written instrument, interest is
calculated from the date of filing the complaint to the date of
satisfaction of the judgment at the rate of 12% per year compounded
annually, unless the instrument has a higher rate of interest. In
that case, interest shall be calculated at the rate specified in
the instrument if the rate was legal at the time the instrument was
executed. The rate under this subsection shall not exceed 13% per
year compounded annually after the date judgment is entered.
(6) For a complaint filed on or after January 1, 1987, but
before July 1, 2002, if the civil action has not resulted in a
final, nonappealable judgment as of July 1, 2002, and if a judgment
is or has been rendered on a written instrument that does not
evidence indebtedness with a specified interest rate, interest is
calculated as provided in subsection (8).
(7) For a complaint filed on or after July 1, 2002, if a
judgment is rendered on a written instrument evidencing
indebtedness with a specified interest rate, interest is calculated
from the date of filing the complaint to the date of satisfaction
of the judgment at the rate specified in the instrument if the rate
was legal at the time the instrument was executed. If the rate in
the written instrument is a variable rate, interest shall be fixed
at the rate in effect under the instrument at the time the
complaint is filed. The rate under this subsection shall not exceed
13% per year compounded annually.
(8) Except as otherwise provided in subsections (5) and (7)
and subject to subsection (13), for complaints filed on or after
January 1, 1987, interest on a money judgment recovered in a civil
action is calculated at 6-month intervals from the date of filing
the complaint at a rate of interest equal to 1% plus the average
interest rate paid at auctions of 5-year United States treasury
notes during the 6 months immediately preceding July 1 and January
1, as certified by the state treasurer, and compounded annually,
according to this section. Interest under this subsection is
calculated on the entire amount of the money judgment, including
attorney fees and other costs. In an action for medical
malpractice, interest under this subsection on costs or attorney
fees awarded under a statute or court rule is not calculated for
any period before the entry of the judgment. The amount of interest
attributable to that part of the money judgment from which attorney
fees are paid is retained by the plaintiff, and not paid to the
plaintiff's attorney.
(9) If a bona fide, reasonable written offer of settlement in
a civil action based on tort is made by the party against whom the
judgment is subsequently rendered and is rejected by the plaintiff,
the court shall order that interest is not allowed beyond the date
the bona fide, reasonable written offer of settlement is filed with
the court.
(10) Except as otherwise provided in subsection (1) and
subject to subsections (11) and (12), if a bona fide, reasonable
written offer of settlement in a civil action based on tort is not
made by the party against whom the judgment is subsequently
rendered, or is made and is not filed with the court, the court
shall order that interest be calculated from the date of filing the
complaint to the date of satisfaction of the judgment.
(11) If a civil action is based on medical malpractice and the
defendant in the medical malpractice action failed to allow access
to medical records as required under section 2912b(5), the court
shall order that interest be calculated from the date notice was
given in compliance with section 2912b to the date of satisfaction
of the judgment.
(12) If a civil action is based on medical malpractice and the
plaintiff in the medical malpractice action failed to allow access
to medical records as required under section 2912b(5), the court
shall order that interest be calculated from 182 days after the
date the complaint was filed to the date of satisfaction of the
judgment.
(13) Except as otherwise provided in subsection (1), if a bona
fide, reasonable written offer of settlement in a civil action
based on tort is made by a plaintiff for whom the judgment is
subsequently rendered and that offer is rejected and the offer is
filed with the court, the court shall order that interest be
calculated from the date of the rejection of the offer to the date
of satisfaction of the judgment at a rate of interest equal to 2%
plus the rate of interest calculated under subsection (8).
Senate Bill No. 1118 as amended November 29, 2012
(14) A bona fide, reasonable written offer of settlement made
according to this section that is not accepted within 21 days after
the offer is made is rejected. A rejection under this subsection or
otherwise does not preclude a later offer by either party.
(15) As used in this section:
(a) "Bona fide, reasonable written offer of settlement" means
either of the following:
(i) With respect to an offer of settlement made by a defendant
against whom judgment is subsequently rendered, a written offer of
settlement that is not less than 90% of the amount actually
received by the plaintiff in the action through judgment.
(ii) With respect to an offer of settlement made by a
plaintiff, a written offer of settlement that is not more than 110%
of the amount actually received by the plaintiff in the action
through judgment.
(b) "Defendant" means a defendant, a counter-defendant, or a
cross-defendant.
(c) "Party" means a plaintiff or a defendant.
(d) "Plaintiff" means a plaintiff, a counter-plaintiff, or a
cross-plaintiff.
<<Enacting section 1. Sections 2912e, 5852, and 6013 of the revised judicature act of 1961, 1961 PA 236, MCL 600.2912e, 600.5852, and 600.6013, as amended by this amendatory act apply only to actions in which the cause of action arose on or after the effective date of this amendatory act.>>
