Drago Kostadinovski v. Steven D Harrington Md
321 Mich. App. 736
| Mich. Ct. App. | 2017Background
- Plaintiffs (Drago and Blaga Kostadinovski) sued Dr. Steven Harrington and his practice after Mr. Kostadinovski suffered a stroke during mitral-valve-repair surgery; plaintiffs served a timely notice of intent (NOI), filed a complaint, and submitted an affidavit of merit alleging six specific negligence theories set out in the NOI.
- After discovery, plaintiffs’ experts disavowed the originally alleged theories and concluded the surgeon’s breach was failure to monitor hypotension and to transfuse adequately; plaintiffs dismissed the original complaint and sought leave to file an amended complaint asserting the new theory.
- The trial court found the proposed amendment would relate back to the original filing date but denied leave to amend as futile because the original NOI did not include the hypotension/transfusion theory required by MCL 600.2912b, and a defective NOI barred the claim.
- Plaintiffs appealed the denial of leave to amend; defendants cross-appealed asserting undue delay and prejudice as alternative grounds to deny amendment.
- The Court of Appeals held Bush v Shabahang controls and directed the trial court to analyze whether the NOI defect could be disregarded or cured under MCL 600.2301 rather than automatically denying amendment as futile; the matter was reversed and remanded for that analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether leave to amend should be denied as futile because the amended theory was not in the NOI | Amendment allowed because discovery revealed new theory; amendment should relate back and be permitted | Amendment is futile because the NOI did not give statutorily required notice of the new hypotension/transfusion theory | Court: Trial court must consider MCL 600.2301 (Bush) to determine if NOI defect can be cured or disregarded before finding futility; remanded |
| Whether MCL 600.2301 (court’s power to amend/disregard defects) applies to cure a defective NOI that becomes defective post-complaint due to changed theories | Bush requires allowing cure/disregard of NOI defects; applies when discovery generates a new theory | Defendants rely on pre-Bush cases (e.g., Gulley-Reaves) to support dismissal for NOI defects | Court: Bush controls; MCL 600.2301 applies and trial court must assess cure/disregard under §2301 |
| Whether prior Court of Appeals decisions (Gulley‑Reaves, Decker) mandate dismissal when amended complaint asserts new theories not in NOI | Plaintiffs distinguish those cases and argue Bush supersedes them | Defendants cite Gulley‑Reaves/Decker as supporting dismissal or denial | Court: Bush (Supreme Court) controls; Gulley‑Reaves predated Bush and did not analyze §2301; Decker did not address §2301 either; Bush governs |
| Whether trial court must also consider undue delay/prejudice if it allows amendment under §2301 | Plaintiffs: focus on §2301 cure; equitable relief appropriate | Defendants: even if §2301 applies, undue delay and prejudice bar amendment | Court: If trial court allows cure/disregard under §2301, it must then consider defendants’ other defenses (undue delay, prejudice) on remand |
Key Cases Cited
- Bush v. Shabahang, 484 Mich. 156; 772 N.W.2d 272 (Mich. 2009) (defective but timely NOI may be cured or disregarded under MCL 600.2301 where plaintiff made a good‑faith effort to comply)
- Gulley‑Reaves v. Baciewicz, 260 Mich. App. 478; 679 N.W.2d 98 (Mich. Ct. App. 2004) (NOI defective where it failed to notify of anesthesia‑related theory; dismissal affirmed in that context)
- Decker v. Rochowiak, 287 Mich. App. 666; 791 N.W.2d 507 (Mich. Ct. App. 2010) (amended complaint construed as clarifying rather than asserting new theories; NOI purpose satisfied)
- Driver v. Naini, 490 Mich. 239; 802 N.W.2d 311 (Mich. 2011) (distinguishes Bush where §2301 inapplicable because the claim against added nonparty was time‑barred and no proceeding was pending)