Lead Opinion
At issuе in this wrongful-death, medical-malpractice action is whether plaintiffs notice of intent was sufficient with respect to the defendant physician, Michael A. Lauer, M.D. The trial court granted defendants’ motion for summary disposition, holding that plaintiffs notice of intent was not sufficient, and the Court of Appeals reversed with respect to the grant of summary disposition to Lauer.
Regarding causation, the notice of intent states: “If the standard of сare had been followed, [David] Waltz would not have died on October 11, 2001.” This statement does not describe the “manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice,” as required by MCL 600.2912b(4)(e). Even when the notice is read in its entirety, it does not describe the manner in which the breach was the proximate cause of the injury. When so read, the noticе merely indicates that Lauer caused a perforation and that he then failed to do several things that he presumably should have done, such as perform a pericardiocentesis in a timely manner. However, the notice does not describe the manner in which these actions or the lack thereof caused Waltz’s death. As this Court explained in Roberts v Mecosta Co Gen Hosp (After Remand),
Although the instant notice of intent may conceivably have apprised Lauer of the nature and gravamen of
On the other hand, as we also explained in Roberts II,
This Court has already held thаt a defective notice of intent does not toll the period of limitations. Roberts v Mecosta Co Gen Hosp,
MCL 600.2912b(l) states that “a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.” MCL 600.2912b(4) states that the “notice given to a health professional or health facility under this section shall contain a statement of at least all of the following....” Therefore, a plaintiff cannot commence an action before
Because we conclude that plaintiffs notice of intent with regard to Lauer did not satisfy the requirements of § 2912b (4) (e), we reverse in part the judgment of the Court of Appeals and reinstate the trial court’s оrder granting summary disposition to Lauer. Finally, we deny plaintiffs application for leave to appeal as a cross-appellant because we are not persuaded that we should review the question presented.
Notes
The dissent contends that the notice does contain such a statement because, according to the dissent, it states that “Lauer negligently caused Waltz’s death by the continued administration of an anticoagulant after internal bleeding was detected.” Post at 567. However, contrary to the dissent’s contention, this statement cannot be found anywhere in the notice of intent. Instead, the notice only states that defendants “[flailed to timely recognize the perforation and stop the anticoagulation and order an eehoeardiogram[.]” Nowhere in the notice does plaintiff stаte the “manner in which [this failure] was the proximate cause of the injury claimed in the notice.” MCL 600.2912b(4)(e).
The dissent complains that defendant waited until it was “too late to correct an alleged deficiency” to raise it. Post at 565. However, as we
MCL 600.5856(a) states that the filing of a complaint tolls the period of hmitations. MCL 600.2912d(l) requires a medical-malpractice plaintiff to file an affidavit of merit with the complaint.
The dissent argues that, pursuant to MCL 600.2301, we should remand this case to the trial court to allow plaintiff to amend her notice of intent. MCL 600.2301 provides:
The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.
As discussed above, because the notice of intent was deficient, no action is pending, and § 2301 only applies to pending actions. In addition, § 2301 only applies to a “process, pleading, or proceeding.” Although the dissent acknowledges that a notice of intеnt is not a pleading, it argues that a notice of intent is a “proceeding.” Post at 568 and n 6. However, contrary to the dissent’s contention, our decision in Fildew v Stockard,
Dissenting Opinion
(dissenting). I believe that plaintiff has stated the manner in which the perforation of decedent’s artery was the proximate cause of his death and, thus, that her notice of intent meets the requirements of MCL 600.2912b. I also believe that when a notice of intent required by MCL 600.2912b is deficient, MCL 600.2301 should control and the deficiency should be disregarded if there is no effect on the substantial rights of a party. Most importantly, I believe that the Legislature did not intend a statute mandating notice to one
On October 5, 2001, David Waltz was admitted to Borgess Medical Center for chest pains. The next day, Dr. Michael Lauer performed an angioplasty on Waltz. During the procedure, Lauer perforated Waltz’s coronary artery. Waltz experienced severe hypotension and hypoxia. Dr. Alponse DeLucia, III, a cardiothoracic surgeon, performed emergency coronary-bypass surgery, but, by this time, Waltz had suffered an anoxic brain injury. He died six days later, on October 11, 2001. According to Lauer’s own testimony, the perforation was the cause of Waltz’s death.
Plaintiff is the personal representative of Waltz’s estate. Following thе requirements of MCL 600.2912b(l) and (2), plaintiff mailed a notice of intent (NOI) to three defendants on January 13, 2003.
The majority concludes that plaintiff did not meet the requirements of MCL 600.2912b(4)(e), which requires a statement of the “manner in which it is alleged
Plaintiffs NOI states that “Mr. Waltz presented to defendants for an elective [percutaneous transluminal coronary angioplasty]. During the procedure, the defendant caused a perforation which led to Mr. Waltz’ death.” Plaintiffs NOI further alleges that Waltz might have survived but for negligence in responding to the perforation. The NOI alleges actions that defendants should have taken but did not. It states that defendants did not (1) recognize the perforation in a timely manner, (2) stop the administration of an anticoagulant, (3) order an echocardiogram, (4) insert a balloon pump, (5) timely perform a pericardiocentesis,
This Court has stated that, given the presuit timing of the notice and lack of information available, “the claimant is not required to craft her notice with omniscience”; thus, it is not fatal that the allegations in the NOI are inaccurate. Roberts v Mecosta Co Gen Hosp (After Remand),
I am uncertain what the majority finds lacking here, and the majority does not specify it. In fact, the majority appears to say that plaintiff did not state the manner of causation because she did not state the manner of causation. I would find plaintiffs stаtement sufficient under MCL 600.2912b(4)(e).
Additionally, if plaintiffs NOI were deficient, I would allow her to amend it or direct the trial court to disregard the deficiency in this case. The most obvious, direct, and irrefutable legislative intent of this statute is notice. Indeed, the statute mandates that a potential medical-malpractice defendant receive notice of impending litigation. There is no indication of an intent for the NOI to be used as a trap for thе unwary, ambushing a plaintiff who is without notice of the
I believe that MCL 600.2301 should apply when an NOI is deficient. That statute states:
The court in which any action or proceeding is pending, has power tо amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.
While MCR 2.118 controls the amendment of pleadings, an NOI is not a pleading, and its amendment is controlled by MCL 600.2301, which applies to any process or proceeding before a court.
The statute allows amendment “at any time” before judgment is rendered. At the time defendants asserted that plaintiffs NOI was defective, judgment had not
The statute operates “for the furtherance of justice.” Justice is furthered by applying MCL 600.2301 in a case in which a statute mandating notice to one party operates as a terminal trap without notice to the party required to give notice. In this case, Lauer has not asserted that plaintiffs claim lacks merit, that he was not negligent, or that plaintiffs notice failed to put him on notice of plaintiffs claim. Lauer merely alleges that plaintiffs NOI was technically insufficient under MCL 600.2912b. The aim of MCL 600.2301 is “ ‘to abolish technical errors in proceedings and to have cases disposed of as nearly as possible in accordance with the substantial rights of the parties.’ ” Gratiot Lumber & Coal Co v Lubinski,
The second sentence of MCL 600.2301 requires a court to “disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.” I do not believe that Lauer’s substantial rights would be affected by disregarding a defect in plaintiffs NOI in this case. The only possible effect on Lauer is lack of notice. But lack of notice is not evident here because he had actual notice.
In similar circumstances, this Court held that dismissal on the basis of a deficient notice of intent was inappropriate when there was no prejudice to the recipient. In Lisee v Secretary of State,
*570 In all actions in which recovery is to be sought against the [motor vehicle accident claims] fund, said action must be commenced within 3 years from the time the cause of action accrues. Provided that recovery from the fund shall not be allowed in any event unless notice of intent to claim against the fund is served upon the secretary, on a form prescribed by him, within 1 year of the date that the cause of action shall accrue. [Emphasis added.]
*571 The purpose of the notice provision of [MCL 257.1118] is met in this case. The Secretary of State did receive actual notice of the accident through the notice of intent to claim filed by the estate of Ella Burgy.... Hence, the Secretary of State was not prejudiced in any way. Because of the remedial nature of this Act and because of the lack of prejudice to the defendant, we hold that plaintiffs’ failure to file notice within the time required under [MCL 257.1118] is not a bar to recovery under the circumstances of this case. [Id. at 44-45 (emphasis added).]
There is no reason to treat MCL 600.2912b differently from MCL 257.1118 when the critical language is nearly identical.
The majority states that MCL 600.2912b places no duty on a defendant to challenge deficiencies in a plaintiffs NOI before the plaintiffs case is filed. The question here is not one of a defendant’s duty; rather, the question is one of legislative intent. The clear intent of MCL 600.2912b is to require pretrial notice to potential medical-malpractice defendants. I find no indication in the statute that it was intended tо trap unwáry plaintiffs and defeat otherwise meritorious claims months or years after an action is commenced.
I believe that plaintiffs NOI contains a statement of the manner in which Lauer’s breach caused the injury at issue. If plaintiffs NOI were deficient, I would remand this case to the trial court for consideration
The three named defendants are Lauer, Borgess Medical Center, and Heart Center for Excellence, EC.
According to MedlinePlus, Medical Encyclopedia, a service of the National Institutes of Health and the United States National Library of Medicine:
Pericardiocentesis involves the use of a needle to withdraw fluid from the pericardial sac (membrane that surrounds the heart).
This test may be performed to remove fluid that is compressing the heart for examinаtion. It is usually done to evaluate the cause of a chronic or recurrent pericardial effusion (fluid in the pericardial sac). It may also be done as a treatment measure to relieve cardiac tamponade (compression of the heart from an accumulation of fluid within the pericardial sac). [<http://www.nlm.nih.gov/medlineplus/ency/article/003872.htm #Definition> (visited June 2, 2008).]
“LAD” refers to the left anterior descending coronary artery, in which the guide wire was placed for Waltz’s angioplasty.
This allegation is readily ascertainable in plaintiffs NOI.
In South Norfolk v Dail, 187 Va 495, 503;
In my view, service of an NOI is part and parcel of medical-malpractice “proceedings” in Michigan; service of an NOI is encompassed by MCL 600.2301. See Fildew v Stockard,
Additionally, the specific notice requirements of MCL 600.2912b(4) are precisely duplicated in the complaint and affidavit of merit once litigation is commenced. See MCL 600.2912d(l), listing the required content of an affidavit of merit; MCR 2.111(B), listing the required
Because I believe that plaintiffs notice of intent was sufficient, or that any insufficiency should be disregarded under MCL 600.2301, I do not reach the issue whether plaintiffs complaint and affidavit of merit tolled the period of limitations.
After the claim accrued in Lisee, the statute was amended to make the notice period six months, among other changes.