Supremes’ Ruling Allows Medical Malpractice Suit To Continue
An Oakland County woman who sued her doctor for medical malpractice will get a second chance to advance her lawsuit.
In a 5-2 decision, the Michigan Supreme Court held the trial court improperly dismissed Lynda Danhoff’s lawsuit.
At issue was whether an expert is required to support their standard-of-care opinion with scientific literature.
“Consistently with precedent, we hold once again that scientific literature is not always required to support an expert’s standard-of-care opinion, but that scientific literature is one of the factors that a trial court should consider when determining whether the opinion is reliable,” the majority’s opinion from Justice Kyra Bolden reads.
” … Determining that the expert is unreliable and granting summary disposition without first considering all such applicable factors, as the trial court did here, is an abuse of discretion,” she noted.
Justice Richard Bernstein concurred, but wrote separately to say he’s open to revisiting the two prior cases the court used in its opinion.
Justice Brian Zahra, joined by Justice David Viviano, disagreed that the trial court improperly applied the rules of evidence, statute and prior court decisions.
Zahra believes the trial court excluded the expert’s opinion because it was based only on the expert’s opinion, background and experience.
” … The trial court perfectly applied the law to the facts and reached a sound and correct result,” Zahra noted. “Because the majority opinion reverses and disparages the trial court’s sound exercise of discretion, I dissent.”
Danoff was treated in 2015 for a back injury, and she sued after suffering complications.
The defendants, including the surgeon and hospital, sought to dismiss the suit because the plaintiff’s expert’s opinion wasn’t based on scholarly authority.
The trial court granted the dismissal and the Court of Appeals affirmed in an unpublished opinion.
The case returns to the trial court.
Homecare Unionization Bills Include Council To Help
Homecare providers compensated through Michigan’s Medicaid system could unionize under bills approved by the Senate last month. Also, the legislation creates the “Home Help Caregiver Council,” overseeing payroll deductions for union fees.
Around 9:47 p.m. on June 26, the Senate approved SB 790 and SB 791 by a party-line, 20-18.
The bills were voted on amid a lengthy session period that ran from 10 a.m. that day to shortly before 5 a.m. the next morning, as legislators approved an $82.5 billion budget for the upcoming Fiscal Year (FY) 2025. Lawmakers are now in their summer recess period.
SB 790, sponsored by Senate Health Policy Chair Kevin Hertel (D-St. Clair Shores), establishes the Home Help Caregiver Council, responsible for ensuring that negotiation agreements are followed through on, setting compensation rates, payment terms and practices and other benefit terms achieved through a collective bargaining process.
The director of the state’s Department of Health and Human Services and a department person they’ve designated will serve on the council, as well as five other individuals appointed by the head of DHHS.
Moreover, the council will be responsible for maintaining a registry of individuals qualified to serve as caregivers through the Medicaid-funded “Home Help” program for elderly and disabled Michiganders. In the FY ’25 budget, legislators appropriated $10 million for the “adult home help caregiver registry and council.”
“The council will help with providing more training to the individuals that are providing the care, and putting more infrastructure behind it,” Hertel told MIRS on, describing how when he shadowed a caregiver less than two months ago, he saw that “there’s no real infrastructure in place today that ensures they have somewhere to go when they have an issue, whether that’s an issue with their payment, whether they’re not paid in a timely fashion, (or) whether (they) paid the proper amount.”
The $10 million appropriation could be spent on job skills training for a specialized area of caregiving, homecare worker marketing and recruitment efforts and other expenses related to career education and training programs.
According to Michigan Home Care Workers United, which is affiliated with the Service Employees International Union (SEIU), roughly 35,000 caregivers are working under the state’s Home Help program. The program allows Medicaid beneficiaries to hire the direct care worker of their choice.
According to regulations, a caregiver cannot be under 18 years old, cannot be in control of the patient’s budget and cannot be a spouse caring for a spouse, nor a parent caring for a minor child.
Home Help caregivers organized to form a union in 2007, but were prohibited from unionizing in Michigan during 2012.
If SB 790 and SB 791 were signed into law, the 2014 U.S. Supreme Court ruling in Harris v. Quinn would still apply. In that Illinois case, the justices ruled 5-4 that requiring homecare workers paid by the state to pay their “fair share” of union collective bargaining costs violated First Amendment freedoms of speech and association.
According to the PHI, the research and policy analysis provider, Michigan’s field of home health and personal care aids is projected to have 115,500 job openings from 2020 to 2030. Additionally, 43 percent of all direct care workers in Michigan – who provide in-home and outside support to disabled individuals – resided at less than 200 percent of the federal poverty level, and 44 percent were on some kind of public assistance.
Incompass Michigan – a statewide network of human services providers – and the Michigan Assisted Living Association found that among 88 organizations who employ direct care workers, the average starting wage of a direct care worker was $15.72 per hour as of March of this year.
The surveyed organizations include agencies that hire Home Help direct care workers and pay them with Medicaid dollars. The data found that 82 percent of those groups refused additional work or programming in the last 12 months because they could not recruit staff, and the average annual turnover rate was 35.9 percent.
When asked where increased wages would come from under SB 790 and SB 791, Hertel pointed to the state budget-making process.
“We’ll have to work that through with the department budget. There are federal matching funds we believe that we can access to pull down more dollars, but ultimately, the state will have to make a choice,” Hertel said. “To be honest, we are seeing the level of care workers, the amount of care workers across the state, becoming somewhat of a crisis. We are not going to have enough people doing the work to take care of those individuals who need it.”
Hertel said when Michigan does not have the proper population of caregivers ensuring individuals in need can remain in their homes, “it becomes more expensive.” He said some of these un-served patients could end up in a facility or become faced with increased medical costs as they injure themselves on their own.
“I would argue that if we do this on the front end, and make sure we have the correct (number) of care workers across the state who are trained properly, who can provide this level of care necessary, then we reduce costs in many other areas,” he said. “I think a lot of us don’t see the direct impact of this until either ourselves or somebody we love is in that situation, and the reality is that all of us, at some point, are going to need some level of care.”
While the budget sets aside money for SB 790 and SB 791 to be implemented in terms of the council and registry, a coalition of disability rights groups are concerned about the FY ’25 budget appropriating $28.7 million, so direct care workers can be paid an additional 20 cents hourly through Medicaid reimbursements.
“There (has) been a shortage of workers due to the wage levels, due to the lack of career advancement opportunities, and really a culture that is not affording folks who do this incredible work the appropriate level of respect,” said Todd Culver, the president of Incompass Michigan, on a recent episode of the MIRS Monday Podcast.
ACLU Suit Challenges Michigan’s Ban On Medicaid Funding Abortions
A new lawsuit filed today challenges Michigan’s ban on Medicaid-funded abortions, arguing the law violates the constitutional right to reproductive freedom that voters enshrined in the Constitution in November 2022.
The complaint, filed in the Court of Claims on behalf of the YWCA Kalamazoo, comes two days after a judge blocked enforcement of state regulations, including the 24-hour waiting period.
“Once the state chooses to provide health insurance to the people of Michigan, it cannot selectively exclude critical and constitutionally protected health care, like abortion,” Bonsitu Kitaba, deputy legal director for the American Civil Liberties Union of Michigan, said in a press conference.
Amber Roseboom, president of Right to Life of Michigan, said the lawsuit is “abortion-obsessed activists” attempt to do what they “failed to garner support for in the legislative process” – forcing Michigan taxpayers to pay for someone’s abortion through Medicaid dollars.
“Radical activists are appeasing their big money donors and special interest groups while showing complete disregard for Michigan taxpayers and their ongoing, overwhelming opposition to paying for other people’s abortions through taxpayer-funded Medicaid dollars,” she said in a statement.
More than 3 million people are enrolled in Michigan’s Medicaid programs, which provide comprehensive health care services for people on low incomes.
The Democratic-led Legislature attempted in 2023 to repeal the ban, but a no vote from one Detroit Democrat House member foiled the effort.
The lawsuit alleges the ban also discriminates between childbirth and abortion and discriminates on the basis of sex.
The ban can delay vital health care, which can increase health risks and it increases costs to Medicaid-eligible people, who already face financial hardship.
Kitaba said the ban on Medicaid coverage for abortion creates a “two-tiered system” between those who can afford private health care coverage and those who cannot.
The abortion coverage ban falls most heavily on those who already face systemic barriers to accessing health care and have statistically worst health outcomes, especially Black women and other people of color.
“When Medicaid ignores the will of the Michigan voter and arbitrarily restricts access to health care, Medicaid is disproportionately restricting access to care, specifically for people of color,” YWCA of Kalamazoo CEO Susan Rosas said. “… When the state limits what Medicaid can cover, the state is controlling what people of color can do with their own bodies. That is what systematic oppression looks like.”
Dr. Abdul El-Sayed, Wayne County’s director of health, human and veterans services, agreed there is a discrimination system in the public policy whereby low-income people – who lack the financial means to pay out-of-pocket health care costs – are forced to do just that.
“In some effect, what this lawsuit is identifying is the inconsistency between enshrining a right to an abortion and then maintaining a policy on the books that in effect prevents the lowest income people from getting that abortion,” said the county health officer, who is involved the ACLU’s lawsuit.
“… On the one hand, the same idealogues who don’t want Medicaid dollars to pay for abortion services are uninterested in investing in the well-being of low-income families in our state,” El-Sayed added. “And that has been a real challenge all along. If you’re low income in this state, our public policy, in effect, punishes you twice.”
Heightened Insurance Fraud Penalties Pass House
The Department of Insurance and Financial Services’ Fraud Investigation Unit would be better equipped to detect and deter insurance fraud under HB 5191, HB 5192, HB 5193, HB 5194, HB 5195, HB 5196 and HB 5197
that passed the House today with immediate effect. Penalties for those who receive $100,000 or more or make 100 fraudulent claims would be increased to a 20-year felony and $50,000 fine.
In a floor speech, Rep. Brenda Carter (D-Pontiac) said insurance fraud is not a victimless crime, as consumers end up paying heightened prices to make up for lost funds.
In a release, Rep. Mike HARRIS (R-Clarkston) said an estimated $300 million is lost to insurance fraud annually in the United States, costing Americans an average of $900 per year in the form of higher premiums.
“Our bipartisan plan will protect the hard-earned dollars of homeowners, drivers, patients, and small-business owners,” Harris said.
There’s Hope All School Personnel Are Trained On Seizures
Dr. Sarah Dixon urged House Education Committee members to picture a parent needing to drop everything at a moment’s notice, racing against the clock to get to school and administer a rescue medication to their child, who is having a seizure.
That’s the reality for the parents of one patient at her clinic with frequent, difficult to control seizures, said Dixon, an Ann Arbor-based pediatric neurologist, during her testimony urging support for a Rep. Kara Hope (D-Lansing) bill requiring seizure treatment training for school personnel.
Right now, the school does not feel comfortable handling the student’s rescue medication, which stops seizures, due to its status as a controlled substance, Dixon said.
The resulting delay in administering the medication when a child is “status epilepticus,” or having a seizure lasting five minutes or longer, is not only disruptive to the family, but also potentially deadly to the student, she said.
“When a seizure lasts 30 minutes or longer, there are long-term consequences, including permanent brain damage,” Dixon said. “And studies show that the timing of rescue medications is crucial. If it takes 10 minutes or longer to give a rescue medication, this is associated with longer seizure duration, need for more medications to try and stop the seizure, and an increased risk of complications and death.”
Seizures are the third most common school emergency, Dixon said, with one in 10 people expected to have a seizure at some point in their life. Children with epilepsy can have varying levels of seizure control, from going months or years without them to having them daily.
But right now, she said no standardized process exists for training school personnel how to respond to seizures before 911 arrives, and “our schools are not currently well poised to support children with epilepsy.”
Hope’s HB 5329 would address that, Dixon said, by requiring all Michigan school personnel, in both traditional public and charter schools, to undergo biannual seizure recognition and treatment training.
The bill would also require school districts to ensure that all their students being treated for a seizure disorder have a seizure action plan, or a plan with specific details on how to respond in the event of a seizure, on file.
Dixon said these plans, while useful, are often not readily available when a seizure occurs, instead tucked away in student files.
“And in our great state of Michigan, you’ve heard there are over 4,200 students for every one school nurse, so we cannot rely on our school nurses alone as the sole party equipped to manage a seizure in the school environment,” she said.
Dixon said HB 5329 would address these issues by expanding the network of adults in schools who are able to keep kids safe during a seizure, starting with the 2025 – 2026 school year.
The bill would require the state Department of Education (MDE) to develop a 60- to-90-minute training for all school personnel in seizure recognition and treatment, which would include instruction on common seizure types, first-aid steps to assist a student who is having a seizure, information on key factors that make a seizure a medical emergency and guidance on ways to support students living with epilepsy.
School nurses and personnel designated to administer medications would complete more in-depth seizure recognition and first-aid response training.
Brianna Romines, president of the Epilepsy Foundation of Michigan, said the foundation and the Centers for Disease Control and Prevention together developed a web-based training, which will be offered to the state for free to use.
“We didn’t want to put the state in any position of having to appropriate funds or develop a training,” she said.
Rep. Matt Koleszar (D-Plymouth) expressed some hesitation to the required training of not just educators, but all school personnel.
“There are a lot of people that work in our school system that never see kids,” he said, referencing human resources and administration employees and asking about potential flexibility.
Romines said that while it’s important that a majority of school personnel be included because “seizures can happen any place, any time,” the foundation is open to making additional changes and working on a substitute that would exempt some non-student-facing personnel.
The bill was supported by the MDE, the Michigan Chapter of the American Academy of Pediatrics and the Michigan Parent Teacher Association.