Here we are faced with another Supreme Court election that bears great importance on matters of medical liability decisions. Currently two cases are under review one by the Appellate Court the other most likely heading to the Michigan Supreme Court. The first Demott v DMC involving neonatal sepsis resulting in the death of the newborn. Plaintiff is seeking relief for lost wages and loss of household chores the child could provide at home when reaching the age of 18. The trial court denied such and now it is headed to the Appellate Court.

In Ernest v McLaren the Trial Court ruled that plaintiff filed outside of the two year statute of limitations. Plaintiff asked the Appellate Court to overturn the Trial Court decision and it appears that the Appellate Court is deferring to the Michigan Supreme Court. The current statute of limitations has been in effect for three decades and served plaintiffs and defendants well. It should be no surprise that the Trial Attorneys smell blood in the water given the unsolicited remarks made by Justice Bernstein in July of 2024 (see below).

The Michigan State Medical Society (MSMS) with the AMA has filed amicus briefs in both cases. Today the Michigan Supreme Court has a 6-1 composition, favoring a liberal activist bench. Tort Reform passed passed 30 years ago has been the bedrock of controlling the filing of frivolous law suits, exorbitant settlements and ensuring a proper yardstick exists when it comes to choosing witnesses and their testimony.

On July 8th, 2024 the Michigan Supreme Court rendered a decision that forecasted how they may decide medical malpractice cases in the future. The MSMS in conjunction with the AMA filed an amicus brief in the Dahnhoff v Fahim case. Both the Trial and Appellate Courts dismissed the case because plaintiffs expert did not meet the requisite standard of what is considered expert testimony. For years, MCL 600.2169 and 600.2955 have been the gold standard for determining the qualification of an expert and the admissibility of testimony. The courts followed findings in Edry/ Ehler as precedent that expert testimony is not “ipse dixit”, dogmatic and unproven statements. In a 5-2 decision the Supreme Court sent the case back to the Trial Court citing lack of a peer reviewed publication to support his testimony is not dispositive, meaning acceptable for dismissal. Surprisingly the Court overlooked that the plaintiff’s expert witness testimony didn’t meet any of the requisites as elucidated in case law effective since 1961.

The most disturbing commentary was provided by Justice Bernstein; he is open to revisiting Edry and Ehler, as he feels they may have been incorrectly decided. Certainly a far departure from the Daubert challenge a motion approved by the US Supreme Court in 1993. Essentially he tipped his hand to the trial bar how he would rule; he just needs a case brought to him. This is what should be known as the “Bernstein Disadvantage”. In our amicus we argued that abandoning Edry and Euler would “signal a return to the era of “unreliable junk science purchased from professional witnesses” and undo decades of jurisprudence (and Legislative effort) to ensure the integrity of the judicial process.

We are observing the effect of a Supreme Court Justice who is clearly an activist jurist; legislating from the bench. There are two more cases where we have filed an amicus curiae with the AMA regarding removing the cap on non economic damages and determination of earning potential for a minor as none exists today.

The effort to stem the sky rocketing settlements in the early 1980’s started in October 1985 with a massive March on Lansing coordinated by the MSMS. I was a surgical intern and ordered by my Chief of Surgery, Jack Pfeiffer, MD to put on a clean white lab coat and get on the bus. In fact anyone not on call that day did the same. To say I was impressed would be an understatement; the fact that he saw the value for us to learn what grassroots advocacy looked like was never lost on me. We need more Jack Pfeiffer’s!

It took another decade to finally get across the finish line, legislation that has stemmed excessive settlements, a cost that is absorbed by everyone. Defensive medicine does not come cheap and the cost of care is only escalating each year. We cannot leave our fate in the hands of Justices like Bernstein.

The Michigan State Supreme Court is a bench of seven justices who are nominated by a political party, no primary challenge. They serve an eight year elected term with no term limits; only mandatory retirement age at 70 Unseating an incumbent justice is a difficult endeavor; the wrong composition on the bench can have deleterious effects for a generation. when these decisions were rendered the composition was 4-3 favoring activist justices; Bernstein currently is in his second term that expires in 2031, the following are first term, Bolden appointed in 2019, Cavanaugh elected 2019 and Welch in 2021. Chief Justice Clement retired last year and Governor Whitmer appointed Noah Hood a progressive jurist who will be up for election in 2026, Viviano retired in 2024 foregoing a second term and Zahra is in his second term expiring 2030, reaching 70. Only the latter two had any experience as a judge before being elected to the Supreme Court. Most of the current liberal justices have been appointed by the governor.

Last years decision illustrates a case that plaintiff’s advocate for a rule to save their claim whether it accords with evidentiary principles established before Edry/Ehler. A breach of the 1995 Tort Reform bill would create a tsunami of trivial lawsuits hastening the retirement of physicians and anointing nurse practitioners as expert witnesses if SB 279 had passed in December of 2024. We would have faced a direct assault by the trial bar who works on a contingency fee; why we fight for a mere increase in Medicare reimbursement to match inflation.

Whose best interest to raise settlement limits or create a new category of monetary compensation that cannot reasonably be estimated but the trial bar. In 2018 election cycle the Trial Bar PAC raised $822,000 over two years while MDPAC collected $70,000 for the same period of time. In 2024 the Trial Bar PAC has raised $336,000, spent 151,000 and still has $333,000 in reserve and continues to raise money.

Essentially there are two available seats both held by a liberal jurist. It is paramount that at least one of these incumbents is replaced by a conservative justice. Your contribution to the GLPOPAC is crucial as much as your vote for both Michael Warren and Cassandra Morse-Bills in November.

While the focus of this editorial has been on the ramifications to the physician community make no mistake any alteration of admissible expert testimony has a broad ripple effect. MSMS is communicating with stakeholders such as Michigan Hospital Association (MHA) and the state Chamber of Commerce. Without any further ado I remind the reader that the Supreme Court election is the most important one in Michigan this November.

Please click the link and contribute $300 or what you can; we need your help!