Best Practices in Determining Whether a Claim Sounds in Ordinary Negligence or Medical Malpractice by Donna MacKenzie and Jules Olsman
Medical errors are now the third-leading cause of death in the United States. Medical malpractice tort reform in Michigan, however, has resulted in a significant decrease in the number of medical malpractice cases that are actually filed in our state. Tort reform also brought with it strict procedural requirements that, if not followed, can be fatal to a plaintiff’s case. As a result, before filing a lawsuit involving a licensed healthcare professional or entity, it is critical to consider whether the allegations sound in ordinary negligence or medical malpractice.
According to authors Donna MacKenzie and Jules Olsman, it is imperative to consider both parts of the Bryant test in determining whether a claim sounds in ordinary negligence or medical malpractice. It is also important to recognize that some allegations in a complaint may sound in ordinary negligence while others sound in medical malpractice. The authors also reiterate that simply because the first prong of the Bryant test is satisfied does not mean the claim sounds in medical malpractice. The authors point out that, unlike the first prong, the line between ordinary negligence and medical malpractice under the second prong of Bryant is not always easily distinguishable. The authors also highlight the fact that the decision about the nature of the claim may be made on the pleadings alone. Therefore, both MacKenzie and Olsman recommend that claimants carefully plead all facts in support of a claim for ordinary negligence.