Savaged: Michigan Supreme Court Quietly Affirms Access to Courts Is Based On Ability To Pay

By Chris Savage

In late November of this year, the Michigan Supreme Court issued a tersely worded order (pdf) that said simply this: On order of the Court, the application for leave to appeal the July 19, 2011 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

This order was in regards to the case Rebecca Williams Jackson v. Mecosta County Medical Center, et. al.. The order told the plaintiff, Rebecca Jackson, that the Michigan Supreme Court was refusing to hear her appeal. Not a big deal for most of us and chances are good that you never heard of Rebecca Jackson or her court case and appeal. But the order is a bombshell in terms of equal justice for all Michiganders including those who are poor or, as in the case of Ms. Jackson, indigent. The order says, in essence, if you are poor, if you are indigent, you cannot afford justice in Michigan.

The story began in January 2007. Ms. Jackson received care from the Mecosta County Medical Center between January 21, 2007, through January 23, 2007. During that time, she was harmed by the care she received there. On July 17, 2009, Jackson filed a malpractice lawsuit against the Mecosta County Medical Center, Obstetrics and Gynecology of Big Rapids, MHS Surgical Specialists, Central Michigan Emergency Physicians, Mecosta County Radiology and five doctors.

In Michigan, under MCL § 600.2912d, if you file a malpractice suit, you must include in your filing an “affidavit of merit.” An affidavit of merit is essentially a statement from a qualified doctor saying that your case has merit. This law was passed to ensure that frivolous lawsuits are not filed and requires, in part, that the affidavit “shall certify that the health professional has reviewed the notice and all medical records supplied to him or her by the plaintiff’s attorney concerning the allegations contained in the notice.” In other words, if you can get a qualified doctor to certify that your case is worthy, that helps the court weed out cases that should not be filed because they would waste the court’s time. An affidavit of merit must be filed for every defendant in the case. In this particular case, Jackson was required to file eleven affidavits of merit.

In December 2009, court fees for this case were waived for Jackson due to her financial situation — she was able to prove that she was too poor to pay them. However, the requirement for eleven affidavits of merit was still in force. According the blog Vox Populi, this is an incredibly expensive proposition:

The logistics of obtaining such a note is daunting to an established firm with large on-hand cash (the going rate for such a statement runs from $1,500–$5,000, depending on speciality, for EACH defendant). For an indigent litigant, this simple doctor’s note becomes an absolute barrier to accessing the court.

Faced with a requirement that would cost her between $16,500 and $55,000, Rebecca Jackson hit a wall with her malpractice suit. She was unable to move forward in her search for justice, not because her case was necessarily unworthy, but because she simply did not have enough money and resources to prove it well enough to have her day in court. Her court case was dismissed by the lower court hearing it.

Jackson filed an appeal with the State of Michigan Court of Appeals. In her appeal, she claimed, among other things, that she was being denied justice only because of her inability to pay for it and challenged the constitutionality of MCL § 600.2912d. On July 19th of this year, the Court of Appeals affirmed the lower court’s decision meaning that they found that it had been decided correctly.

At this point, Ms. Jackson had only one remaining place to turn: the Michigan Supreme Court. She sent her case to the Supreme Court in August and, in what can only described as a miraculous turn around, they returned their decision in only 83 days. Again from the Vox Populi blog:

The case, Rebecca Williams Jackson v. Mecosta County Medical Center, et. al., went to the Michigan Supreme Court on August 30, 2011. In a unanimous response, the court beat its average time by half in returning a terse “considered and denied” refusal to hear the case. Where the average is 5 months, the Williams Jackson ruling was returned in a mere 83 days (counting weekends)—two and half months.

The Supreme Court’s ruling was the one you saw at the beginning of this piece: DENIED. With that one, short-but-sweet and rapidly-decided decision, the Michigan Supreme Court confirmed that, in Michigan, justice in some cases is only available to those who have money. Rebecca Jackson was allowed relief from court fees due to indigence but she was not allowed to move forward without the very expensive affidavits of merit, eleven of them. Unlike the ability to have her court fees waived, there is no other alternative available to Jackson or any other poor person harmed by medical professionals and seeking a fair trial.

We will never know if Rebecca Jackson’s case had merit and if she was, in fact, harmed by the negligence of the doctors who cared for her back in 2007. We will never know because she was denied her opportunity for a court trial where facts could be presented and weighed by a jury of her peers. That is a “luxury” available only to people who have enough money to pay for it. Until our system is changed to accommodate those without enough money to pay for it, it will be possible for an increasing number of Michiganders to be, as Vox Populi calls them, “Too Poor for Justice.”

For more of Chris Savage’s writing, visit Eclectablog.