Lawyer Monthly - October 2022

medical malpractice cases. The cap amount is adjusted annually and is higher for cases involving loss of limb function, loss of mental capacity, or injury to reproductive organs resulting in the inability to procreate. For economic damages, any collateral source benefits payable from other sources (such as Social Security or unemployment benefits) must be subtracted from the same category of damages. Michigan also requires all future damages, economic and noneconomic, to be reduced to present value at the rate of 5% per year, compounded annually, for each year in which those damages will accrue. All of these reductions create a judgment which can be millions of dollars less than the amounts the jury awarded. Psychiatrists are less likely to be sued than other types of physicians. Allegations of psychiatric malpractice often concern an alleged failure to properly diagnose or treat suicidal or homicidal patients (resulting in suicide, homicide or injury to other patients). One common fact pattern is a patient who dies by suicide in the days immediately following his or her release from a psychiatric facility. In those cases, plaintiffs often struggle to establish the requisite causal link between the defendants’ actions and the patient’s suicide. They must demonstrate, without relying on speculation, that the patient would not have died by suicide ‘but for’ the decision to discharge the patient. Depending on how remote in time the suicide is from the discharge and what other intervening factors may have affected the patient’s mental status, causation can be difficult to prove. This ‘but for’ causation standard applies in all medical malpractice cases, and defendants frequently file dispositive motions asserting that the plaintiff cannot meet that standard. Michigan has a statute, MCL 330.1946, imposing a duty upon psychiatrists and other mental health professionals to take action upon learning a patient has the apparent intent and ability to physically harm a reasonably identifiable third party. The duty can be discharged by hospitalising the patient or warning Psychiatrists are less likely to be sued than other types of physicians. 20 LAWYERMONTHLYOCTOBER 2022

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