ࡱ> 3  bjbj "ZbvbvQ{YlVh   8888d 0ttttttttS0U0U0U0U0U0U0$2 5y0! ttttty0` tt0```t t tS0`tS0``N V& 'th 0& ( 8(s' '\000'x55'`  The Wayne Law Review Annual Survey of Michigan Law June 1, 2005 : May 31, 2006 MEDICAL MALPRACTICE Albert J. Dib, esq. Table of Contents Introduction& & & & & & & & & & & & & & & & & & & & & & & & & & Expert Qualifications and Testimony & & & & & & & & & & & & & & . Affidavit of Merit& & & Statute of Limitations and Tolling.. A. Wrongful Death.. Successor Personal Representative C. Legal Disability.. V. Joint and Several Liability and Allocation of Fault. VI. Proximate Causation. Informed Consent... Emergency Medical Treatment and Active Labor Act .. (EMTALA) ______________________________ Dib, Fagan and Brault, p.c., Adjunct Faculty, Wayne State University Law School and University of Detroit Mercy School of Law, Medical Malpractice, Health Law, and Pretrial Advocacy. Member, Wayne State University Law School Board of Visitors. Past-President, Wayne State University Law Alumni Association. B.A., 1977, University of Michigan-Dearborn; J.D., 1980, Wayne State University Law School. Introduction Compliance with procedural and substantive requirements of Michigans Medical Malpractice Tort Reform Act dominated Michigans appellate cases during this survey period. These decisions developed, planted, and then detonated a number of legal land mines in this oft-contentious, ever-changing area of the law. Of particular import, were decisions judicially redefining Affidavit of Merit and Expert Witness requirements. Also of significance, were cases that created more confusion than clarity in the attempt to settle the correct application of the statute of limitations in medical malpractice wrongful death actions. Lawyers (and judges, for that matter) found themselves playing the role of minesweepers on the battlefield of medical malpractice litigation. In the end, the trial bench and bar tumbled into a tailspin collapse, from which few recovered. Those who did were left haggard and shell-shocked. Expert Qualifications and Testimony In Woodard v. Custer, the plaintiffs infant son was hospitalized in a Pediatric Intensive Care Unit (PICU) for a respiratory problem. His attending physician was board-certified in pediatrics, with certificates of special qualifications in pediatric critical care medicine and neonatal-perinatal medicine. After the child was transferred to the general hospital floor, he was discovered to have both legs broken. Plaintiffs sued the attending PICU physician and the hospital, claiming that his broken legs were caused by negligent medical procedures performed on the boys legs while in PICU. Plaintiffs expert witness was board-certified in pediatrics, but held no certificates of special qualifications. Defendants motion to strike plaintiffs expert was granted because plaintiffs experts credentials did not match-up to the defendant-doctors, and therefore, the expert did not qualify under M.C.L. section 600.2169. As such, the trial court ruled that plaintiff could not establish a prima facie case of malpractice without expert testimony, and dismissed the case. The Michigan Court of Appeals upheld the trial court's decision that plaintiffs expert was not qualified under section .2169. However, the appeals court further held that pursuant to the doctrine of Res Ipsa Loquitur, expert testimony was not needed and reversed the trial courts dismissal. In an unpublished opinion, the Court of Appeals believed that negligence could be inferred because the child was admitted into the PICU with healthy legs and discharged with both legs broken. But, the Michigan Supreme Court reversed the Court of Appeals on the Res Ipsa issue, stating that expert testimony was required. Whether a leg may be broken in the absence of negligence during a medical procedure, was not within the common knowledge of a jury, thought the Supreme Court, and was exclusively within the expertise of the medical profession. In its opinion, expert testimony was required for the proposition that this was not a complication of a reasonably performed medical procedure. The Court took the expert-qualification issue under advisement for later determination on plaintiffs cross-appeal of whether plaintiffs expert was qualified within the meaning of section .2169 to testify against the defendant-physician. Robins v. Garg paved the way for future repeal of the locality rule regarding the standard of care applicable to general practioners, long considered archaic and out-of-touch with modern medicine practice. It also hinted toward the acceptance of family practice as a specialty. Plaintiff filed an Affidavit of Merit signed by a family medicine physician from Florida. Defendant moved to strike this expert, arguing that he was not a general practice physician like defendant, and not familiar with the standard of care in defendants geographic area. The trial court agreed and struck plaintiffs expert. However, the Robins Court of Appeals reversed, carefully comparing the similarities between general practioners and family practioners. Finding these terms to be interchangeable by using the definitions found in Random House Websters College Dictionary, the Robins Court declared that a family practitioner and a general practitioner are, in fact, physicians engaged in the same type of medical practice for purposes of meeting the requirements of M.C.L. section 600.2169. Referring to Decker v. Flood, the Robins Court noted, the practice of a family practitioner and a general practitioner are alike in that neither practice is limited to a specific branch of medicine. While some considered this a departure from prior cases strictly construing the expert match requirements of the statute, the Robins Court found family practice and general practice, to be indistinguishable and, in essence, a match. Also, Robins found that plaintiff had presented adequate proof that the area and method of practice in Florida where his expert practiced, was similar to where defendant practiced in Michigan, and was qualified to give testimony under M.C.L. section 600.2912a(1)(a). In Sturgis Bank & Trust Company v. Hillsdale Community Health Center, the Court of Appeals focused on whether an expert who attests to the standard of care in an Affidavit of Merit, must also be qualified to testify on causation. In Sturgis, plaintiffs estate sued an extended-care facility and members of its nursing staff, claiming they were negligent by failing to prevent the decedent from falling out of her hospital bed. Pursuant to M.C.L. section 600.2912d(1), plaintiff filed Affidavits of Merit executed by a registered nurse and a nurse practitioner. Even though these experts were employed in the same health professions as the individual defendants, defendants argued that plaintiffs experts were not qualified under M.C.L. section 600.2169(2) to comment on proximate causation of the injury as required by M.C.L. section 600.2912d(1)(d). The trial court concurred, believing that the nurse and the nurse practitioner, alone, were not enough to causally link the alleged professional negligence to plaintiffs injury, and held that an additional Affidavit of Merit from a doctor qualified to make the causal connection, was necessary. The Sturgis Court of Appeals reversed, holding that the nurses affidavits were sufficient under M.C.L. section 600.2912d(1), even if they did not possess the level of expertise or qualifications needed to establish proximate cause. Sturgis ruled that an Affidavit of Merit by an expert in the same health care profession as those accused of wrongdoing, satisfactorily met the requirements of section .2912d(1) to avoid dismissal of claim: [t]he Legislature simply intended that an affidavit of merit be executed by an expert who would be considered a peer of the party alleged to have committed malpractice by having the affiant be of the same specialty, board certification, or health profession as the tortfeasor.  However, the Sturgis Court was quick to caution that expert qualifications that satisfy the standard for an Affidavit of Merit, may not satisfy the requirements of M.C.L. section 600.2169 for expert testimony at trial, and may be subject to later challenge. In a case alleging nurse midwifery malpractice, the Court of Appeals in McElhaney v. Harper-Hutzel Hospital, held that a physician-obstetrician was not qualified under M.C.L. section 600.2169 to testify about the standard of care applicable to a nurse midwife, because the two did not practice in the same health profession. The case highlights a recurrent, practical problem presented by section .2169: an expert in a similar or closely related health profession is not permitted to opine on the applicable standards of care of another (here, an obstetrician vis--vis a nurse midwife), even though the expert is substantially, similarly trained and licensed to deliver the same health services to a patient. Constrained to follow the same health profession requirements of section .2169, the McElhaney Court stated: For an expert to be qualified to testify regarding the standard of care, the expert must be qualified under 2169(1). Halloran, supra, p. 578 n. 6, 683 N.W.2d 129. As previously discussed, 2169(1)(b) applies here because plaintiff's claims are directed against defendant's nonphysician nurse midwife. Under this section, to qualify to offer testimony regarding the appropriate standard of practice or care of the nurse midwife, plaintiff's experts must practice in the same health profession as the nurse midwife. MCL 600.2169(1)(b)(i). Nurse midwives are licensed to practice under MCL 333.17211 and certified under MCL 333.17210. Dr. Zack and Dr. Berke, however, are obstetricians/gynecologists who are physicians under the Public Health Code definition, MCL 333.17001(1)(c). These experts, therefore, do not qualify to testify regarding the standard of care applicable to defendant's nurse midwife. Given these distinct licensing requirements, the McElhaney Court held that an obstetrician was not qualified to comment on nurse midwife standards of care. The apparent rationale: doctors doctor, nurses nurse, and each practice according to their respective licensing authority. Affidavit Of Merit A plaintiff commencing medical malpractice action must file and serve, with the complaint, an affidavit of merit signed by a health professional who the plaintiffs attorney reasonably believes meets the requirements for an expert witness under section 2169. However, what constitutes a valid affidavit took on an unfamiliar meaning of epic proportions in Apsey v. Memorial Hospital. The Apsey plaintiffs filed an Affidavit of Merit prepared in Pennsylvania, and endorsed by a Pennsylvania notary. The customary notarial seal appeared on the document, but no special certification authenticating the credentials of the out-of-state notary. Defendants argued such authentication was required by M.C.L. section 600.2102(4) in order for it to be a valid affidavit, acceptable in Michigan. The trial court agreed and granted defendants summary disposition, reasoning that the failure to provide the special certification was fatal to the notarization, and thus, the affidavit itself was a nullity, rendering plaintiffs complaint invalid. In what best can be described as a strained analysis, the Apsey Court upheld the lower court, holding that an out-of-state Affidavit of Merit in a medical malpractice case not only must be notarized, but also must be accompanied by a certificate setting forth the notarys authority, pursuant to section .2102(4). The effect of plaintiffs failure to properly authenticate the affidavit of merit, the court ruled, was a failure that rendered the Affidavit of Merit defective. Consequently, even though the Apsey plaintiffs later provided that certification, it came after the period of limitations had run on their cause of action, and, the Apsey Court ruled, such a belatedly filed certification of an out-of-state notary public would not cure the defect in an otherwise timely complaint and affidavit. The initial Apsey decision, unpublished, registered a 9.0 on the legal Richter scale, sending seismic waves throughout the litigation community and wrought havoc with practioners. The most affected were lawyers representing malpractice victims who often, out of necessity, utilize out-of-state experts. On reconsideration, the Apsey Court capitulated somewhat, and in an attempt to quell a fulminating insurgence, made the decision prospective in nature. Compelled to follow McElhaney, the Court in Brown v. Hayes determined that defendants expert did not meet the requirements of M.C.L. section 600.2169 as required by section .2912e, because there was no identical match between defendants and their own expert. Defendants expert was a physical therapist and the defendants were occupational therapists. However, because defendants counsel had reasonably believed the physical therapist-expert was qualified, the court held that it was not appropriate to strike the affidavit of meritorious defense. The Court of Appeals grappled with the issue of whether a complaint timely filed with an Affidavit of Merit later determined not to be in compliance with M.C.L. section 600.2912(d), tolls the statute of limitations. The court in Kirkaldy v. Rim recognized the problem that arises out of the dismissal of actions on the basis of the statute of limitations, where an affidavit of merit was in fact filed with the complaint, is that the determination of nonconformity, whatever its description, is made in hindsight by a court that is rendering a ruling subsequent to the filing. The plaintiffs in Kirkaldy filed an Affidavit of Merit executed by a board-certified neurosurgeon, rather than a board-certified neurologist, as were defendants. The trial court ruled this to be a defective or nonconforming affidavit and dismissed the case without prejudice, believing that to be the appropriate remedy for failure to comply with section .2912(d). However, defendants argued that the filing of the plaintiffs defective affidavit of merit did not toll the statute of limitations and, consequently, they were entitled to dismissal with prejudice because the limitations period had run. The Kirkaldy Court reluctantly agreed and dismissed the case with prejudice, but with regret. The Court thought dismissal to be especially harsh where there existed a legitimate dispute regarding the affidavits adequacy or where there was an insignificant defect. The Kirkaldy Court thought the better approach would be that, where there is a dispute regarding whether the timely filed affidavit is compliant, the limitations period should be tolled until the court renders a ruling that the affidavit is defective or nonconforming, which would result in a dismissal without prejudice. Nonetheless, Kirkaldy retroactively applied the decision finding the affidavit to be nonconforming. Kirkaldy held that the time between the filing of the action (with the affidavit), which seemingly tolled the limitation period, and the courts ruling, is no longer considered a tolling period, and dismissal with prejudice results if the statute of limitations expires during this period. In Saffian v. Simmons, the Court of Appeals refused to set aside a default judgment entered against a dentist who failed to timely respond to a summons and complaint. The defendant claimed he was excused from having to file a response because the trial court later determined that the Affidavit of Merit filed with plaintiffs complaint did not comply with statutory requirements and, as such, did not toll the running of the period of limitations, which had run. The Court of Appeals rejected this argument in Saffian, holding that because the defendant did not timely respond, he was properly defaulted. The plaintiff had filed a colorable Affidavit of Merit with complaint, and at time plaintiff filed the complaint, he believed that affidavit met statutory requirements. The trial court later determined that the affidavit was deficient, after the defendants answer was due. However, whether defendant was entitled to dismissal on the basis that the affidavit was deficient and did not toll the period of limitations was not the threshold question, here. Defendant did not timely answer the complaint or otherwise defend the action, and a default was entered. The Saffian Court of Appeals stated that to hold that defendant had no duty to answer the complaint would open the floodgates to all manner of retrospective claims that a defendant had no obligation to respond to a summons and complaint. This would, in effect, vitiate default and the final judgments, said the Saffian Court, and only rewards dilatory response to lawsuits in circumstances in which a lawsuit is, by all initial accounts, valid. Even worse, the Saffian Court felt, it would allow a defendant to knowingly foster the running of the limitations period by ignoring a lawsuit and then simply bypass the default by attacking the Affidavit of Merit, depriving plaintiff of the legitimate opportunity to timely cure a defect if attacked in an answer or affirmative defense. Thus, Saffian stated, a defendant would never suffer adverse consequences if a post-default attack on the affidavit were successful and in the meantime, a plaintiffs claim would abate as the statute of limitations expired. The requirement that a defendant answer a complaint tests the adequacy of the complaint and affidavit. The test fails in its purpose, Saffian explained, if procedural devices permit a complaint to go unanswered to no disadvantage. But, in Gawlik v. Rengachary, a different Court of Appeals panel decided not to impose default on defendants who had filed a defective, but timely, affidavit of meritorious defense. The Gawlik Court pointed out that defendants pleadings were not late or completely absent, but only deficient, and defendants were not racing the statute of limitations. Because the trial court did not discuss the prejudice to plaintiff or the appropriateness of any other remedial sanctions on the record, it improperly defaulted defendants without explanation, said the Gawlik Court and it reversed. Though Gawlik recognized that plaintiffs and defendants are different because defendants are never racing against time to comply with a statute of limitations, in a peculiar analysis, Gawlik said, the sanction of dismissal with prejudice, comparable to the default in this case, is only appropriate when a flaw in the affidavit is accompanied by a statute of limitations problem. Since defendants would never encounter such a situation, by adopting Gawliks leap in logic, default against a defendant could never occur. Statute of Limitations and Tolling Wrongful Death Crediting the Michigan Supreme Court for creating unprecedented, mass chaos in the wake of its decisions in Waltz v. Wyse, and Ousley v. McLaren regarding the applicable statute of limitations in wrongful death medical malpractice actions, the Court of Appeals in Mazumder v. University of Michigan wrestled with the apparent consequential injustice created by these decisions. The Mazumder Court defied Waltz and refused to dismiss a wrongful death medical malpractice case, invoking the principle of judicial or equitable tolling. Prior to Waltz, it had been the well-founded, long-held, universal belief that, as to medical malpractice claims alleging wrongful death, the two-year saving provision under M.C.L. section 600.5852 would be tolled under M.C.L. section 600.5856 during the statutory waiting period required by M.C.L. section 600.2912b(1). But, in Waltz, the Supreme Court held that wrongful death actions alleging medical malpractice were, a) not entitled to tolling under M.C.L. section 600.5856 because M.C.L. section 600.5852 was savings provision, not a statute of limitations or a statute of repose, and b) still subject to the statutory waiting period of M.C.L. section 600.2912b(1). If Waltz had a tsunami-like effect on cases relying on section .5856 tolling, then the Supreme Court in Ousley generated another endless onrushing tide by applying the rule retroactively. Waltz and Ousley created, in effect, a scorched earth policy, wiping out a significant number of pending cases filed based on section .5856 tolling. Such cases were now time-barred and dismissed. Mazumder harshly criticized the high court: Like the proverbial deer in the headlights, the plaintiffs causes of action have been frozen in time and space by the retroactive application of Waltz by Ousley, leaving them with no recourse or remedy. The legal fallout from the decision in Waltz has been significant. This Court has been presented with numerous appeals of nearly identical issues of time-bar dismissal, all disputing the correctness and reach of Waltz and its progeny. These issues have consumed inordinate time and effort on the part of the bench and bar at various levels. For defense counsel, Waltz and Ousley were essentially a windfall in pending cases. For the plaintiffs counsel, and their clients, the decisions had serious repercussions. Viewing Waltz and Ousley as correct, the fact that so many members of this state's bench and bar committed such rudimentary errors would be a discredit to the profession. Viewing Waltz or Ousley as incorrect, the fact that members of the bench and bar can ignore the inequities in these circumstances is a discredit to our sense of fairness and justice. Either way, permitting the summary dismissal of these legitimately filed claims is an indictment of our legal system, not merely the plaintiffs' lawyers.  Before Waltz, section .5856 tolling was applied to the two-year savings time period in section .5852 for wrongful death cases. The Mazumder Court reasoned that had Waltz not eliminated section .5856 tolling, plaintiffs complaint would have been timely. It further stated that under the circumstances of this case in relation to when Waltz was decided, it was not possible for plaintiff to now salvage her case. However, because plaintiff had relied on the then prevailing acceptance of applying section .5856 tolling to wrongful death cases, the Mazumder Court held that plaintiff was entitled to equitable relief and did not dismiss the case. In the end, the Mazumder court appealed to the State Legislature for help: In effect, Waltz established a judicial obstacle to a cause of action that the Legislature established pursuant to the strict requirement of a 182-day waiting period to file a medical malpractice action. The 182-day waiting period is used as a sword to shorten the two-year saving period. Wrongful death medical malpractice actions are generally time-consuming and difficult to evaluate; personal representatives should at least have the benefit of the two-year minimal period for filing a cause of action that the Legislature has determined is appropriate for medical malpractice actions generally. We urge the Legislature to respond legislatively to restore the two-year saving period for a wrongful death cause of action to eliminate confusion. In Johnson v. Hurley Medical Group, the Court of Appeals again applied judicial tolling to sidestep the unjust effects of Waltz, finding it wrong to punish the plaintiff who had relied on Omelenchuk before Waltz was decided. Citing Mazumder, this appeals court panel reversed the trial courts summary dismissal and held judicial tolling appropriate where the relevant procedural events occurred before the issuance of the Waltz decision, and plaintiff was required to file the Notice of Intent under MCL 600. 2912 and she relied on Omelenchuk. But, in Lentini v. Urbancic, the equities were not in plaintiffs favor. There, a different appeals panel did apply Waltz retroactively. Plaintiffs decedent died on April 11, 1999 (presumably the date of malpractice). Letters of Authority were issued on October 15, 1999. Plaintiff waited until October 12, 2001 to file suit. Plaintiffs complaint was filed on April 17, 2002. The Lentini court held that the (October 12, 2001), coming months after the underlying expiration of the malpractice period of limitations (April 11, 2001) and only three days before the Letters of Authority were to expire (October 15, 2001), did not toll either the original two-year period of limitations (which would have expired on April 11, 2001, assuming April 11, 1999 was the date of malpractice) or the two-year period applicable under wrongful-death saving provision (which expired on October 15, 2001). Plaintiffs complaint was declared untimely and dismissed. Of further interest was the courts clarification that the three-year period mentioned in M.C.L. section 600.5852 simply limits the two-year saving period within which a wrongful death claim must be brought. It does not create a separate time period within which to file suit. In McLean v. McElhaney, the parents of Karen McLean sued defendants who had treated their daughter for alcoholism and depression. McLean died on February 14, 2001, two days after last seeing the defendants. On March 13, 2001, McLeans parents were appointed personal co-representatives of her estate. On October 29, 2002, a Notice of Intent was sent and the complaint followed on September 5, 2003. Summary disposition was granted in favor of defendants on the basis that the malpractice claims were untimely filed. In demonstrating a complete misconstruction the statute of limitations according to Waltz (and nicely illustrating the confusion Mazumder talked of), this court of appeals panel held: Because this notice of intent was served within 182 days of the expiration of the period of limitations, the running of the period of limitations was tolled for 182 days. MCL 600.5856(c); Omelenchuk, supra at 574-575, 609 N.W.2d 177. The period of limitations began to run again on April 29, 2003, at which point plaintiffs had 108 days left in which to file their complaint. Thus, plaintiffs should have filed their complaint by August 15, 2003. In fact, applying Waltz, the statute of limitations expired March 13, 2003, two years from the date Letters of Authority were issued. Contrary to the analysis in McLean, the Notice of Intent sent on October 29, 2002 did not toll the statute of limitations until April 29, 2003, nor did plaintiffs have an additional 108 days thereafter in which to file their complaint. Actually, when plaintiff sent the notice, only 136 days remained until the expiration of the statute of limitations on March 13, 2003. Under the Waltz statute of limitations re-defined, plaintiffs, here, would not be permitted to file the complaint by that time because the requisite waiting period under M.C.L. section 600.2912b had not yet run; a classic example of the inequity of Waltz. Plaintiffs needed to send their Notice of Intent no later than September 11, 2002 so as to allow sufficient time to wait under section .2912b and timely file the complaint by March 13, 2003. Be that as it may, McLean arrived at the correct Waltz result, albeit for the wrong reasons. Plaintiffs September 5, 2003 complaint was untimely, whether Waltz was applied correctly or as it was here. The reasoning and decision in Mazumder came under fire when another appeals panel disputed the applicability of equitable tolling when a statute setting forth an applicable period of limitations contains no language contemplating equitable tolling, and concluded that equitable or judicial tolling does not apply in this case because the plain language in the relevant statutes, MCL 600.5805(5), 600.5852, and 600.5856, does not contemplate the possibility of judicial tolling. As critical as Mazumder was of the Supreme Courts decisions in Waltz and Ousley, so too was the Court in Ward v. Siano of Mazumder, stating plainly, we believe that Mazumder was wrongly decided. It chided Mazumder for ignoring binding precedent regarding equitable tolling, and questioned the merits of Mazumder majoritys equitable tolling analysis. But, pursuant to MCR 7.215(J)(2), Ward begrudgingly followed Mazumder, and held that although the statute of limitations had expired, it was tolled by principles of equity, thereby rendering plaintiffs complaint timely, even under the circumstances of the case. After expressing its disagreement with the Mazumder holding that equitable tolling is appropriate in cases affected by the retroactive application of our Supreme Courts ruling in Waltz, the Ward Court stated that if it were not required to follow Mazumder, it would affirm dismissal of plaintiffs complaint. Pursuant to MCR 7.215(J)(3), Ward recommended that the case be submitted to a conflict panel for resolution. Successor Personal Representative In McMiddleton v. Bolling, the original personal representative filed a complaint more than 2 years after Letters of Authority were issued. A successor personal representative was appointed. Rather than filing another complaint, the successor personal representative attempted to validate the previously filed untimely complaint. The McMiddleton Court of Appeals did not find the rule in Eggleston v. Bio-Medical Applications of Detroit to be applicable. In Eggleston, the complaint was never filed while the initial personal representative was alive. Instead, the complaint was filed after the successor personal representative was appointed. The Michigan Supreme Court held that M.C.L. section 600.5852 clearly allows an action to be brought within two years after Letters of Authority are issued to the personal representative. The statute does not provide that the two-year period is measured from the date the Letters of Authority are issued to the initial personal representative. Thus, in McMiddleton, the Court refused to declare plaintiffs complaint timely, stating that complaint was not filed within two years after appointment of either the original or successor personal representative, and, as such, could not be revived. The plaintiff got it right in Verbrugghe v. Select Spec. Hosp. The McMiddleton rule was applied, and a successor personal representative was permitted to file a second complaint where the predecessor representative had filed the first one untimely, provided the second complaint was otherwise timely under M.C.L. section 600.5852 and Eggleston. Thus in Verbrugghe, plaintiff was able to rescue the estates wrongful death case after the initial personal representative filed an untimely complaint. As in McMiddleton, the successor personal representative replaced her predecessor in a case untimely filed. But, unlike the successor personal representative in McMiddleton, the Verbrugghe successor personal representative filed a second case within two years of her appointment, and before the first case was dismissed based on the expiration of the period of limitations. The Verbrugghe Court held this to be permissible. Though plaintiff had momentarily escaped dismissal on these grounds, the case was dismissed (without prejudice) because she failed comply with M.C.L. section 600.2912b(1) by failing to serve a Notice of Intent on defendants. In so doing, the Verbrugghe court slightly modified the McMiddleton rule, by requiring a successor personal representative to serve a Notice of Intent before commencing another lawsuit. C. Legal Disability In a case of first impression, the Court of Appeals in Vega v. Lakeland Hospitals, excluded an entire class of claimants from the disability grace period statute which provides that if the person entitled to bring an action is under 18 years of age or insane at the time the claim accrues, the person shall have 1 year after the disability is removed through death or otherwise to bring the action, although the period of limitations has run. The court concluded that M.C.L. section 600.5851(1), when read together with section .5851(7), excludes medical malpractice claimants from the disability grace period. The court pointed to the plain language of section .5851(1) which begins with the phrase: Except as otherwise provided in subsections (7) and (8).... The court found that the circumstances described in subsections .5851(7) and (8) are excluded from the provisions of subsection .5851(1). The court further held that this exclusion does not violate equal protection guarantees and affirmed trial courts dismissal pursuant to MCR 2.116(C)(7) on the basis that the statutory period of limitations expired before plaintiff filed her complaint. V. Joint and Several Liability and Allocation of Fault In another case of first impression, the Court of Appeals in Bell v. Ren-Pharm, Inc. extended medical malpractice joint and several liability to at-fault non-parties under M.C.L. section 600.6304(6)(a). The plaintiff-minors legs were burned when the childs grandmother applied an ointment. The minors guardians sued multiple health-care providers, but did not sue the grandmother. However, the health-care defendants did name the grandmother as a nonparty at fault. Ultimately, the jury found that the health-care defendants 20% at fault for causing the childs injuries, and the grandmother, 80%. The Bell appeals court upheld the trial courts decision to hold the defendants jointly and severally responsible for the damages attributed to the grandmother. Typically, a jury decides [t]he percentage of the total fault of all persons that contributed to the death or injury ... regardless of whether the person was or could have been named as a party to the action. The Tort Reform amendments of the Revised Judicature Act spared medical malpractice cases from the abolishment of joint and several liability in all other tort cases. Today, liability in actions other than medical malpractice is several only, and not joint. In other words, a person is not required to pay damages in an amount greater than his or her percentage of fault. But because Bell was a malpractice action, the liability of each defendant is joint and several.... The issue in Bell was whether the defendants were jointly and severally liable for the damages caused by the grandmother, a non-party. The defendant health-care providers contended that joint and several liability should not extend to a person not party to the action. There being nothing in the statute to guide it, the Bell Court applied the generally accepted principles of joint and several liability, reasoning that the underlying purpose of joint and several liability extends even to damages caused by a non-party to the action. Relying on the Restatement (Third) of Torts: Apportionment of Liability, the Bell Court quoted section 288B: If the independent tortious conduct of two or more persons is a legal cause of an indivisible injury, each person is jointly and severally liable for the recoverable damages caused by the tortious conduct. [Restatement Torts, 3d, Apportionment of Liability, A18, p. 160.] Further, the court found support in Johnston v. Billot, where the court applied the Restatements principles: [t]he purpose of joint liability is to place the burden of injustice, if injustice is inevitable, on the wrongdoer instead of on the innocent plaintiff. See, e.g., Abel v. Eli Lilly & Co., 94 Mich. App. 59, 76, 289 N.W.2d 20 (1979). In other words, while there may be some injustice in holding an at-fault defendant jointly and severally liable for damages attributable to some other persons fault, it would be more unjust to leave an innocent plaintiff with only a partial recovery of damages if the other person cannot be effectively pursued. Restatement Torts, 3d, Apportionment of Liability, A18, p. 160, comment a ([T]he risk that one or more legally responsible parties will be insolvent or otherwise unavailable to pay for the plaintiff's injury is placed on each jointly and severally liable defendant--the plaintiff does not bear this risk.). Thus, based Johnson and the Restatement principles cited therein, Bell concluded that, pursuant to M.C.L. section 600.6304(6)(a), defendants joint and several liability extends to non-parties at-fault in medical malpractice cases. VI. Proximate Causation Pennington v. Longabaugh, highlighted the threshold requirements in medical malpractice cases: [p]laintiff must establish: (1) the standard of care, (2) breach of that standard of care, (3) injury, and (4) proximate causation between the alleged breach and the injury, and stressed that that adequate expert testimony is essential to establish a causal link between the alleged negligence and the alleged injury. Here, the Pennington Court found plaintiffs expert evidence insufficient to connect the claimed malpractice with the decedents death. Moreover, in the absence of such supporting expert testimony, plaintiffs attempt to establish this nexus through the death certificate and the Affidavit of Merit was rejected as insufficient to raise a question of fact. Because plaintiff was unable to demonstrate a greater than fifty percent chance of survival or better result had the defendant not been negligent, the Pennington Court affirmed the trial court dismissal based on no genuine issue of material fact. VII. Informed Consent Beauford v. Lewis, involved a mothers claim for damages against multiple defendants, including a physician and a social worker, contending that appropriate informed consent was not obtained before conducting a sexual assault examination on her three-year-old daughter who had been brought to hospital. Plaintiff and her daughter presented to the hospitals emergency room stating that her mentally disturbed husband had physically assaulted them and that her daughter had possibly been sexual abused. After examining the girl, the physician recommended a follow-up examination with a sexual abuse expert. In the meantime, Child Protective Services took custody of the daughter and the Circuit Court later ordered her to be placed in foster care. Child Protective Services and the foster-parent permitted the follow-up sexual assault examination. After investigation, it was recommended that plaintiff-mothers parental rights be terminated. During custody proceedings, the plaintiff-mother ultimately regained custody of her daughter. In her lawsuit against the physician and social worker, the mother claimed that no appropriate consent was obtained for the sexual assault examination inasmuch as she had not give permission, nor was there any court order permitting it. In dismissing the plaintiff-mothers case, Beauford first noted that both the foster-parent and Child Protective Services consented to the examination. Plaintiff-mothers contention that they had no authority to grant such consent was legally unsupportable. Next, in dismissing the case as to the social worker, the Beauford ruled, Social workers are granted absolute immunity from civil litigation arising out of their work as advisors and agents of the probate court (now to the family division of circuit court) because that court provides parents and other interested parties with a sufficient remedy for any wrongful action by a social worker. Id. This Court stated, as a policy behind this rule, that without the threat of civil litigation, social workers have more freedom to honestly assess a particular situation, while the court still provides parents with a forum in which to contest these assessments and recommendations. Id. at 98-99, 544 N.W.2d 651. To obtain proper informed consent, must a surgeon tell his patient of his statistical history of transplant failures? No, said the Court of Appeals in Wlosinski v. Cohn. Wlosinski involved the death a patient after suffering severe post-operative complications following a kidney transplant. At trial, plaintiff introduced evidence of several failed transplants performed by the defendant-surgeon in the months preceding the patients surgery. Defendants contended that a physician had no duty to disclose to a patient the physicians success rates for a particular medical procedure, and, here, the surgeons failure to inform the patient of his success rates did not, as a matter of law, taint the patients consent. A physician need only inform a patient of the risks and consequences of a medical procedure, and a surgeons success rate is not a risk or consequence related to a medical procedure, according to Wlosinski. In its survey-search of other jurisdictions dealing with this issue of statistical disclosure as a component of informed consent, the Wlosinski Court mustered faint support for its wholesale conclusion here, that as a matter of law, a physicians raw success rates do not constitute risk information reasonably related to a patient's medical procedure. Wlosinski found it impermissible to hype statistics before the jury to show that the surgeon had a propensity to botch transplants. Propensity evidence, said Wlosinski, is barred because it diverts a jurys attention from the facts of the case being tried and focuses it on the probability that the defendant, who has made so many mistakes before, made one again, and punishes a defendant for his misfortune rather than his fault. Why the Wlosinski Court felt that such information would not be important, or even vital, to a patients informed choice of surgeons, was never explained. Emergency Medical Treatment and Active Labor Act (EMTALA) Michigan and the United States Court of Appeals for the Sixth Circuit were responsible for yet another aberration in the judicial interpretation of the Emergency Medical Treatment and Active Labor Act (EMTALA). Basically, EMTALA requires hospitals to provide an appropriate medical screening to any individual who comes to the emergency department. If the person has an emergency medical condition, or is in active labor, a hospital must provide such treatment as may be required to stabilize the medical condition. Stabilization means, with respect to an emergency medical condition ... to provide such medical treatment of the condition as may be necessary to assure, within reasonable medical probability, that no material deterioration of the condition is likely to result from or occur during the transfer of the individual from a facility. Anyone who suffers personal harm due to an EMTALA violation may sue the hospital for those damages available for personal injury under the law of the State in which the hospital is located. The original intent behind the statute was to prevent patient dumping, i.e., to prevent hospitals from refusing care to those unable to pay. In fact, EMTALA protects any individual who presents to an emergency room, regardless of the persons ability to pay. In Smith v. Botsford, a 33-year old man died after fracturing his leg and sustaining extensive blood loss. His family sued the hospital where he initially presented, claiming it failed to stabilize him (as required by EMTALA) before transporting him to another hospital for treatment. The jury returned a $5,000,000.00 verdict for non-economic damages. The hospital appealed the damages award, arguing Michigans statutory limitation on non-economic damages in malpractice actions required the verdict be reduced to $359,000.00. The Sixth Circuit agreed. In a rather sophistic opinion, the Smith Court held that the threshold question in deciding the applicability of a state limitation on damages is whether the EMTALA claim is a malpractice claim under state law, the Court stating, [w]e have no difficulty concluding that this EMTALA failure-to-stabilize claim would constitute a malpractice action under Michigan law. Like the claims Bryant deemed malpractice actions, compliance with EMTALA's stabilization requirements entails medical judgment (assuring within reasonable medical probability, that no material deterioration of the condition is likely, 42 U.S.C. 1395dd(e)(3)(A) (emphasis added))--understood, as this case exemplifies--only through expert testimony. We thus conclude Michigan's cap on malpractice damages limits Plaintiff's non-economic damages to $359,000.00. Such reasoning belies numerous decisions across the country, including the Sixth Circuit, uniformly professing, in no uncertain terms, that EMTALA does not replace or limit State malpractice claims and is not a federal medical malpractice statute. The Smith Court concluded that the noneconomic damages should have been limited in this case, and reduced the award to $359,000.00 in accordance with M.C.L. section 600.1483.  Mich. Comp. Laws Ann. 600.2912 - .2912h.  Mich. Comp. Laws Ann. 600.2912d.  Mich. Comp. Laws Ann. 600.2169.  Mich. Comp. Laws Ann. 600.5852.  473 Mich. 1, 702 N.W.2d 522 (2005).  In an action alleging medical malpractice, a person shall not give expert testimony on the appropriate standard of practice or care unless the person is licensed as a health professional in this state or another state and meets the following criteria: (a) If the party against whom or on whose behalf the testimony is offered is a specialist, specializes at the time of the occurrence that is the basis for the action in the same specialty as the party against whom or on whose behalf the testimony is offered. However, if the party against whom or on whose behalf the testimony is offered is a specialist who is board certified, the expert witness must be a specialist who is board certified in that specialty. Mich. Comp. Laws Ann. 600.2169(1).  Unpublished opinion per curiam, issued October 21, 2003, 2003 Mich. App. LEXIS 2647 (Docket Nos. 239868-239869).  270 Mich. App. 519, 716 N.W.2d 318 (2006).  See Decker v. Flood, 248 Mich. App. 75, 83, 638 N.W.2d 163, 167 (2001), quoting Random House Webster's College Dictionary (1997) definition of a general practitioner is a medical practitioner whose practice is not limited to any specific branch of medicine. The Robins court further noted Random House Webster's College Dictionary (2001) definition of family practice as medical specialization in general practice that requires additional training and leads to board certification.  Decker, 248 Mich. App. 75, 638 N.W.2d 163.  Robins, 270 Mich. App. at 526, 716 N.W.2d at 323 (2006).  The author cautions, this should not be construed as a bellwether of things to come regarding the expert matching requirements under Mich. Comp. Laws Ann. 600.2169.  268 Mich. App. 484, 708 N.W.2d 453 (2005).  In determining the qualifications of an expert witness in an action alleging medical malpractice, the court shall, at a minimum, evaluate all of the following: (a) The educational and professional training of the expert witness. (b) The area of specialization of the expert witness. (c) The length of time the expert witness has been engaged in the active clinical practice or instruction of the health profession or the specialty. (d) The relevancy of the expert witness's testimony. Mich. Comp. Laws Ann. 600.2169(2).  Subject to subsection (2), the plaintiff in an action alleging medical malpractice or, if the plaintiff is represented by an attorney, the plaintiff's attorney shall file with the complaint an affidavit of merit signed by a health professional who the plaintiff's attorney reasonably believes meets the requirements for an expert witness under section 2169. The affidavit of merit shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff's attorney concerning the allegations contained in the notice and shall contain a statement of each of the following: (a) The applicable standard of practice or care. (b) The health professional's opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice. (c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care. (d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice. Mich. Comp. Laws Ann. 600.2912d(1).  Id. at 493, 708 N.W.2d at 458.  269 Mich. App. 488, 711 N.W.2d 795 (2006).  Id. at 496, 711 N.W.2d at 800.  In the authors opinion, such reasoning is at odds with Michigan Supreme Court decisions in Cox v. Board of Hosp. Managers for City of Flint, 467 Mich. 1, 651 N.W.2d 356 (2002), and Bahr v. Harper-Grace Hospitals, 448 Mich. 135, 528 N.W.2d 170 (1995). In Cox, the Michigan Supreme Court held that nurses are not held to the standard of care or practice of a general practitioner or a specialist under M.C.L. 600.2912a, and that neither statutory standard apply to nurses. M.C.L. 600.5838a(1) provides that a malpractice action may be filed against any licensed health care professional. M.C.L. 600.5838a(1)(b) defines licensed health care professional as an individual licensed or registered under article 15 of the public health code.... M.C.L. 333.17201(1)(c) defines registered professional nurse as one licensed under this article to engage in the practice of nursing which scope of practice includes the teaching, direction, and supervision of less skilled personnel in the performance of delegated nursing activities. M.C.L. 333.17201(1)(a) defines practice of nursing as the systematic application of substantial specialized knowledge and skill, derived from the biological, physical, and behavioral sciences, to the care, treatment, counsel, and health teaching of individuals who are experiencing changes in the normal health processes or who require assistance in the maintenance of health and the prevention or management of illness, injury, or disability. M.C.L. 600.5838a permits malpractice claims against nurses, but does not set forth a relevant standard of care or practice. As such, common law determines the applicable standard of care or practice, to wit, the skill and care ordinarily possessed and exercised by practitioners of the profession in the same or similar communities. Cox held this common law standard of care applies in malpractice claims against nurses. And, in Bahr, the Michigan Supreme Court allowed a physician-internist to testify against a nurse inasmuch as he established his knowledge of applicable nursing standards of care in a similar community, i.e., the common law standard of care. Thus, without post tort-reform statutory guidance regarding nursing standards of care, the common law approach in Bahr (pre-tort reform) should be acceptable. To think that physicians, with extensive years of medical school education and resident training, are unfamiliar with the skill and care ordinarily possessed and exercised by nurses, demonstrates a lack of understanding of the manner in which modern health care services are delivered, in the authors opinion.  Mich. Comp. Laws Ann. 600.2912d(1).  266 Mich. App. 666, 702 N.W.2d 870 (2005).  In cases where by law the affidavit of any person residing in another state of the United States, or in any foreign country, is required, or may be received in judicial proceedings in this state, to entitle the same to be read, it must be authenticated as follows: (4) If such affidavit be taken in any other of the United States or in any territory thereof, it may be taken before a commissioner duly appointed and commissioned by the governor of this state to take affidavits therein, or before any notary public or justice of the peace authorized by the laws of such state to administer oaths therein. The signature of such notary public or justice of the peace, and the fact that at the time of the taking of such affidavit the person before whom the same was taken was such notary public or justice of the peace, shall be certified by the clerk of any court of record in the county where such affidavit shall be taken, under the seal of said court. Mich. Comp. Laws Ann. 600.2102(4).  See Scarsella v. Pollak, 461 Mich. 547, 607 N.W.2d 711 (2000).  Some refer to this as the Conspiracy of Silence amongst local physicians unwilling to criticize their own.  270 Mich. App. 491, 716 N.W.2d 13 (2006).  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 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. Mich. Comp. Laws Ann. 600.2912e(1).  266 Mich. App. 626, 702 N.W.2d 686 (2005).  Id. at 636, 702 N.W. 2d at 691.  The Court felt bound by the decisions in Geralds v. Munson Healthcare, 259 Mich. App. 225, 673 N.W.2d 792 (2003), and Mouradian v. Goldberg, 256 Mich. App. 566, 664 N.W.2d 805 (2003), which held that an affidavit of merit that is grossly nonconforming to the statutory requirements is not an affidavit of merit that satisfies the statutory filing requirements and does not support the filing of a complaint that tolls the running of the period of limitations.  The author agrees. Mich. Comp. Laws Ann. 600.5856(a) provides that the period of limitations is tolled [a]t the time the complaint is filed and a copy of the summons and complaint are served on the defendant.... Should a court later decide that the affidavit is defective, the case would be dismissed, ending any tolling.  267 Mich. App. 297, 704 N.W.2d 722 (2005).  Plaintiff claimed that defendant committed malpractice in performing a root canal. Plaintiffs affidavit of merit was executed by an endodontist, who specialized in root canals. Defendant, a general dentist, argued that the affidavit of merit was insufficient to commence the lawsuit and thereby toll the period of limitations because plaintiffs expert was not a properly qualified affiant under Mich. Comp. Laws Ann. 600.2169.  Saffian, 267 Mich. App. at 307, 704 N.W.2d at 728.  Id.  Id.  270 Mich. App. 1, 714 N.W.2d 386 (2006)  Id. at 8, 714 N.W.2d at 390.  Id. at 8, 714 N.W.2d at 391.  An inconsistent and flawed result, in the authors opinion. See, Kowalski v. Fiutowski, 247 Mich. App. 156, 165, 635 N.W.2d 502, 507 (2001): Defendants in a medical malpractice case are not in the same situation as the plaintiffs. First, they are not racing the statute of limitations clock; their interest in prolonging the suit is very different from the plaintiffs' need to meet the statutory deadline. Second, the statutory provisions and language applying to the defendants is similar, but not identical, to that applying to the plaintiffs; for instance, the Legislature did not grant the defendants the right to extend the time allowed. Third, to permit the defendants to delay with impunity does nothing to encourage the parties to explore the merits of the case before trial. The cooperation of both parties is necessary for the effective development of the meritorious issues; the plaintiff is not the only party whose involvement is necessary to ascertain the validity of the allegations made. While the focus in the past has been on the intent of the Legislature to prevent plaintiffs from bringing frivolous claims, the language of the statute is equally strict in requiring defendants to present a valid defense.  469 Mich. 642, 677 N.W.2d 813 (2004).  264 Mich. App. 486, 691 N.W.2d 817 (2004).  270 Mich. App. 42, 715 N.W.2d 96 (2006).  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 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. Mich. Comp. Laws Ann. 600.5852.  The statutes of limitations or repose are tolled in any of the following circumstances: (c) At the time notice is given in compliance with the applicable notice period under section 2912b, if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given. Mich. Comp. Laws Ann. 600.5856(c).  Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced. Mich. Comp. Laws Ann. 600.2912b(1). For cases ratifying tolling of the two-year saving provision during the statutory waiting period in malpractice death claims, see Omelenchuk v. City of Warren, 461 Mich. 567, 609 N.W.2d 177 (2000); Fournier v. Mercy Community Health Care System-Port Huron, 254 Mich. App. 461, 657 N.W.2d 550 (2002); Lentini v. Urbancic, 262 Mich. App. 552, 686 N.W.2d 510 (2004), vacated and remanded, 472 Mich. 885, 695 N.W.2d 66 (2005), on remand 267 Mich. App. 579, 705 N.W.2d 701 (2005); Crockett v. Fieger, Fieger Kenney & Johnson, PC, unpublished opinion per curiam of the Court of Appeals, issued October 28, 2003 (Docket No. 240863, 2003 WL 22439718); Waltz v. Wyse, unpublished opinion per curiam of the Court of Appeals, issued October 1, 2002 (Docket No. 231324); Chernoff v. Sinai Hosp. of Greater Detroit, unpublished opinion per curiam of the Court of Appeals, issued March 22, 2002 (Docket No. 228014, 2002 WL 483533); Gillary v. Sisters of Mercy Health Corp., unpublished opinion per curiam of the Court of Appeals, issued July 10, 2001 (Docket No. 221665, 2001 WL 772738); Williams v. Spohn, unpublished opinion per curiam of the Court of Appeals, issued December 12, 2000 (Docket No. 212792, 2000 WL 33395288).  Mazumder, 270 Mich. App. at 46, 715 N.W.2d at 99.  Id. at 63, 715 N.W.2d at 108. In the authors opinion, such confusion was the result of the moving target Waltz created, where the Supreme Court overruled its own precedent in Omelenchuk. Such overruling of its own precedent by the Supreme Court, of late, comes as little surprise. According to the trade journal, Michigan Lawyers Weekly, the coming to power of the Michigan Supreme Court's current "majority" consisting of Chief Justice Clifford W. Taylor, Justices Maura D. Corrigan, Robert P. Young Jr., Stephen J. Markman and, frequently, Elizabeth A. Weaver, is overruling Supreme Court precedent at a rate greater than its predecessors, also known as the pre-1999 court, and has visited significant changes on Supreme Court jurisprudence. Relative to the pre-1999 configuration of the court, the rate at which the Supreme Court is currently overruling its own precedent is unprecedented. Since Justice Markman joined the court and the majority in October 1999, the number of Supreme Court cases overruling Supreme Court precedent has nearly tripled and the number of Supreme Court precedents overruled has more than tripled. Between 1994 and 1999, the number of cases overruling precedent was 15 and the number of overruled precedents was 18. However, 2000-05 saw 41 cases overruling precedent and 61 precedents overruled. 20 Mich. L.W. 2363, Vol. 20, No.51 (November 6, 2006)  270 Mich. App. 575, 716 N.W.2d 611 (2006).  Id. at 579-580, 716 N.W.2d at 613-614.  267 Mich. App. 579, 705 N.W.2d 701 (2005).  An action 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. Mich. Comp. Laws Ann. 600.5852.  See, Farley v. Advanced Cardiovascular Health Specialists, PC, 266 Mich. App. 566, 573 n. 16, 703 N.W.2d 115, 119 n. 16 (2005).  269 Mich. App. 196, 711 N.W.2d 775 (2005).  Id. at 199, 711 N.W.2d at 788.  Under Mich. Comp. Laws Ann. 600.2912b, before a plaintiff can file a medical malpractice action, the plaintiff shall first serve a notice of intent to file suit upon the health care provider plaintiff intends to sue. Mich. Comp. Laws Ann. 600.2912b(1) requires the notice be served at least 182 days before suit is commenced. Mich. Comp. Laws Ann. 600.2912b(8) permits plaintiff to file suit 154 days after the health provider receives the notice of intent if the health provider does not serve plaintiff with a written response to the notice within that time. Mich. Comp. Laws Ann. 600.2912b(9) permits plaintiff to file suit before the 182 days expires if plaintiff is notified that the health provider does not intend to settle the claim.  In the authors opinion, Waltz, in effect, shortens the period of limitations for wrongful death medical malpractice actions by 182 days. Note, however, Waltz rejected this argument. See Waltz v. Wyse, 469 Mich. 642, 652 n. 14, 677 N.W.2d 813, 818 n. 14 (2004).  Ward v. Siano, 270 Mich. App. 584, 597-599, 718 N.W.2d 371, 379-380 (2006).  Id.  Id. at 601, 718 N.W.2d at 382. Id. at 597, 600, 718 N.W.2d at 379, 381.  267 Mich. App. 667, 705 N.W.2d 720 (2005).  468 Mich. 29, 658 N.W.2d 139 (2003).  Eggleston v. Bio-Medical Applications of Detroit, 468 Mich. 29, 33, 658 N.W.2d 139, 142 (2003).  270 Mich. App. 383, 715 N.W.2d 72 (2006).  McMiddleton, 267 Mich. App. at 672-673, 705 N.W.2d at 723-724.  Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced. Mich. Comp. Laws Ann. 600.2912b(1).  Mich. Comp. Laws Ann. 600.2912b(1).  267 Mich. App. 565, 705 N.W.2d 389 (2005).  Except as otherwise provided in subsections (7) and (8), if the person first entitled to make an entry or bring an action under this act is under 18 years of age or insane at the time the claim accrues, the person or those claiming under the person shall have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run. This section does not lessen the time provided for in section 5852. Mich. Comp. Laws Ann. 600.5851(1).  Except as otherwise provided in subsection (8), if, at the time a claim alleging medical malpractice accrues to a person under section 5838a the person has not reached his or her eighth birthday, a person shall not bring an action based on the claim unless the action is commenced on or before the person's tenth birthday or within the period of limitations set forth in section 5838a, whichever is later. If, at the time a claim alleging medical malpractice accrues to a person under section 5838a, the person has reached his or her eighth birthday, he or she is subject to the period of limitations set forth in section 5838a. Mich. Comp. Laws Ann. 600.5851(7).  If, at the time a claim alleging medical malpractice accrues to a person under section 5838a, the person has not reached his or her thirteenth birthday and if the claim involves an injury to the person's reproductive system, a person shall not bring an action based on the claim unless the action is commenced on or before the person's fifteenth birthday or within the period of limitations set forth in section 5838a, whichever is later. If, at the time a claim alleging medical malpractice accrues to a person under section 5838a, the person has reached his or her thirteenth birthday and the claim involves an injury to the person's reproductive system, he or she is subject to the period of limitations set forth in section 5838a. Mich. Comp. Laws Ann. 600.5851(8).  The claim is barred because of release, payment, prior judgment, immunity granted by law, statute of limitations, statute of frauds, an agreement to arbitrate, infancy or other disability of the moving party, or assignment or other disposition of the claim before commencement of the action. Michigan Rules of Court 2.116(C)(7)  269 Mich. App. 464, 713 N.W.2d 285 (2006).  If an action includes a medical malpractice claim against a person or entity described in section 5838a(1), 1 of the following applies: (a) If the plaintiff is determined to be without fault under subsections (1) and (2), the liability of each defendant is joint and several, whether or not the defendant is a person or entity described in section 5838a(1). Mich. Comp. Laws Ann. 600.6304(6)(a).  Mich. Comp. Laws Ann. 600.6304(1)(b).  Mich. Comp. Laws Ann. 600.2956.  Mich. Comp. Laws Ann. 600.6304(4).  Mich. Comp. Laws Ann. 600.6304(6)(a).  Bell, 269 Mich. App. at 469, 713 N.W.2d at 288.  109 Mich. App. 578, 311 N.W.2d 808 (1981).  Bell, 269 Mich. App. at 471, 713 N.W.2d at 289.  271 Mich. App. 101, 719 N.W.2d 616 (2006).  Id. at 104, 719 N.W.2d at 618.  Except as to the amount of damages, there is no genuine issue as to any material fact, and the moving party is entitled to judgment or partial judgment as a matter of law. Michigan Rules of Court 2.116(C)(10).  269 Mich. App. 295, 711 N.W.2d 783 (2005).  Id. at 300, 711 N.W.2d at 786.  269 Mich. App. 303, 713 N.W.2d 16 (2005).  Id. at 308, 713 N.W.2d at 20.  Id. at 308-309, 713 N.W.2d at 20.  Id. at 312, 713 N.W.2d at 22.  Id. at 312, 713 N.W.2d at 22.  Section 1867 of the Consolidated Omnibus Reconciliation Act of 1986, Pub. L. No. 99-272, 42 U.S.C. 1395dd  42 U.S.C. 1395dd(e)(3)(A).  42 U.S.C. 1395dd(d)(2)(A).  Equal Access to Health Care: Patient Dumping: Hearing Before the Human Resources Intergovernmental Relations Subcomm. of the House Comm. on Government Operations, 100th Cong., 1st Sess. 40 (1987)  419 F.3d 513 (6th Cir. 2005).  Mich. Comp. Laws Ann. 600.1483.  Smith, 419 F.3d at 519.  E.g., Baber v. Hospital Corp. of America, 977 F.2d 872, 879-80 (4th Cir.1992), Power v. Arlington Hosp. Assoc., 42 F.3d 851, 862 (4th Cir.1994), Repp v. Anadarko Mun. Hosp., 43 F.3d 519, 522 (10th Cir.1994), Summers v. Baptist Med. Center Arkadelphia, 91 F.3d 1132, 1136-37 (8th Cir.1996) (en banc); Vickers v. Nash General Hosp., Inc., 78 F.3d 139, 142 (4th Cir.1996); Correa v. Hospital San Francisco, 69 F.3d 1184, 1192 (1st Cir.1995), cert. denied, 517 U.S. 1136, 116 S. Ct. 1423, 134 L.Ed.2d 547 (1996); Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1255, 1258 (9th Cir.1995); Urban By and Through Urban v. King, 43 F.3d 523, 525 (10th Cir.1994); Holcomb v. Monahan, 30 F.3d 116, 117 & n. 2 (11th Cir.1994); Gatewood v. Washington Healthcare Corp., 933 F.2d 1037, 1038-39 (D.C.Cir.1991); Cleland v. Bronson Health Care Group, Inc., 917 F.2d 266, 268, 272 (6th Cir.1990). 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