May 3, 2012, Introduced by Senators 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 section 2912a (MCL 600.2912a), as amended by 1993 PA
78.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec.
2912a. (1) Subject to subsection subsections (2) and (3),
in an action alleging malpractice, the plaintiff has the burden of
proving that in light of the state of the art existing at the time
of the alleged malpractice:
(a) The defendant, if a general practitioner, failed to
provide the plaintiff the recognized standard of acceptable
professional practice or care in the community in which the
defendant practices or in a similar community, and that as a
proximate result of the defendant failing to provide that standard,
the plaintiff suffered an injury.
(b) The defendant, if a specialist, failed to provide the
recognized standard of practice or care within that specialty as
reasonably applied in light of the facilities available in the
community or other facilities reasonably available under the
circumstances, and as a proximate result of the defendant failing
to provide that standard, the plaintiff suffered an injury.
(2) In an action alleging medical malpractice, the plaintiff
has the burden of proving that he or she suffered an injury that
more probably than not was proximately caused by the negligence of
the defendant or defendants. In an action alleging medical
malpractice, the plaintiff cannot recover for loss of an
opportunity to survive or an opportunity to achieve a better
result. unless
the opportunity was greater than 50%.
(3) A person described in section 5838a(1) is not liable in an
action alleging medical malpractice if the person's conduct at
issue constituted the exercise of professional judgment. For
purposes of this subsection, a person exercises professional
judgment if the person acts with a reasonable and good-faith belief
that the person's conduct is both well founded in medicine and in
the best interests of the patient. In an action described in this
subsection, all of the following apply:
(a) The issue of whether an act or omission was an exercise of
professional judgment is a question of law for the court.
(b) If the court determines under subdivision (a) that the
person described in section 5838a(1) did not meet the burden of
proving that the act or omission was an exercise of professional
judgment, the question of whether the person failed to provide the
recognized standard of acceptable professional practice or care is
a question for the trier of fact to decide. The ruling of the court
under subdivision (a) is inadmissible as evidence at trial, and the
court shall not permit the parties' counsel to argue any provision
of this subsection to a jury.