Bush v. Shabahang

Shabahang 703 BUSH v SHABAHANG 274708, 274709, 5, Docket Nos. 2008, and 274726. Submitted March Rapids. May 1, 2008, Grand sought. Decided appeal at 9:00 a.m. Leave to Gary Bush, guardian Gary Bush, L. protected as person, E. brought medical-malpractice in action the Kent Circuit Court against M.D., Shabahang, others, Behrooz-Bruce seeking and damages injuries allegedly for by Gary suffered E. Bush as a result surgery repair aneurysm. court, an George aortic The S. Buth, J., granted summary disposition in favor of defendants George Sugiyama, M.D., AshrafMansour, M.D., T. M. and Vascular Associates, granted EC. The court summary disposition also Spectrum favor of defendant Campus, Health Butterworth to the alleged liability extent that its was based on the actions of Sugiyama regard and Mansour and negli- to the claims of gence part Spectrum on the physician Health’s assistants. Summary disposition regard was denied with to the other defen- dants. The court also determined that the was not prematurely Appeals filed. The applications Court of denied appeal by Shabahang, Heiser, leave to Michigan West Cardiovas- cular, Spectrum unpublished and Health in August orders entered (Docket 4, 270897). 270433, 270437, Nos. Supreme and The Court, granting appeal, in lieu of leave to remanded the matter to Appeals the Court of granted. for consideration as on leave (2006). appeals

Mich 934 and 935 The were consolidated. Appeals

The Court of held: 1. The notice of intent to file his action met the requirements minimum of MCL 600.2912b for statements of the proximate regard standard of care and cause with to defendants Heiser and adequately gave notice that defendants Michigan Surgeons West Spectrum Cardiovascular Health vicariously could be liable for the actions of defendants Heiser and Shabahang. The trial refusing grant court did not err summary disposition on the basis that the notice was deficient in regards. these The notice did not meet the 600.2912b to the sought extent that the to hold West Michigan Surgeons Spectrum Cardiovascular directly Health negligent-hiring liable under a theory or a failure-to-train and to hable sought Spectrum Health to hold extent that other than staff members the actions of its the basis of have Shabahang. court should The trial Heiser or defendants Michigan Cardio- summary disposition in favor of West granted Spectrum the extent that the Health to and vascular Spectrum direct-liability Health to rely theories and to on claims plaintiffs arise from the actions claims extent that the the Shabahang. and other than Heiser Spectrum Health’s staff challenge sufficiency of a plaintiff the does not need 2. A plaintiffs to file a response notice of intent to the defendant’s may properly plaintiff medical-malpractice the action before 154-day expiration the action after the to commence the choose 600.2912b(8) plaintiffs in on the period specifiedin reliance MCL requirements response not meet the defendant’s did belief that the 600.2912b(7). plaintiff an action after A who commences of MCL expiration 154-day period, but before the expiration of the the 600.2912b(l), the basis 182-dayperiod provided under MCL the response require- did not meet the of a belief that the defendant’s 600.2912b(7) the if the trial risks dismissal of suit of MCL ments response ad- was the defendant’s court later determines concluding equate. err in that the The trial court did not prematurely filed. was not entry part, part, in and remanded for the Affirmed in reversed summary disposition prejudice partial in favor of West without Spectrum Michigan Health. Cardiovascular EJ., dissenting part, concurring part in in Fitzgerald, plaintiff majority’s could that the from the conclusion dissented response unilaterally did not the defendants’ determine plaintiff statutory requirements satisfy and thus relieved the the 600.2912b(l) days after obligation to wait 182 under of the bring filing filing before the of intent to an action the notice response complaint. received the defendants’ Because providing the notice of intent after within provided defendants, 154-day period in MCL the shortened 600.2912b(8) apply, irrespective the defen- of whether does not requirements response satisfied the detailed dants’ — — Malpractice Intent to File Clam. Notice of 1. Actions Medical medical-malpractice action need file a A notice of intent to generally required only specificity of a medical- level of meet the particular malpractice complaint; a format for the statements only required required need is not statements the notice form; inquiry readily decipherable the relevant present in be some Bush Opinion op the Court notice, whole, required whether the when read as a contains the information, any specific portion not whether of the notice con- (MCL [4]). required tains the information 600.2912b[l] and — — 2. Actions Medical Malpractice Limitation of Actions. challenge sufficiency

A need not of a defendant’s response to the notice of intent to file a medical- malpractice plaintiff, action before reliance on the belief response statutory that the does not meet the for a response, expiration 154-day commences action after the of the period following receipt notice; however, the defendant’s plaintiff risks subsequently dismissal of action if the trial court (MCL response adequate determines that the defendant’s [8]). 600.2912b[l], [7], and Evans, Rhodes, & Pletkovic P.C. (by Sandra L. Ga- nos), for Gary L. Bush. Grover,

Hackney, Bean, Hoover & (by PLC Richard K. Grover, Jr., and Kates), Thomas C. for Behrooz-Bruce Shabahang, M.D.

Aardema, Whitelaw & Sears-Ewald (by Brian W. Buchalski) Whitelaw and Timothy P. Heiser, for John C. M.D., and West Michigan Surgeons. Cardiovascular

Rhoades (by McKee Mark E. Fatum and Douglas P. Vanden Berge) for Spectrum Health Butterworth Cam- pus. P.J., and SMOLENSKI and Before: FITZGERALD, BECKERING,

JJ. InJ. this case, medical-malpractice defen- SMOLENSKI, dant Behrooz-Bruce Shabahang, M.D., appeals by leave granted the 28, trial court’s April 2006, order denying his motion for summary disposition that was based on grounds that notice of intent to sue was deficient and prematurely filed suit. De- Heiser, fendants John M.D., Charles Michigan West APP 703 706 (WM Cardiovascular), Surgeons and, Cardiovascular Spectrum separate appeal, Health defendant in a by granted appeal Campus leave also Butterworth denying April their 28, 2006, order trial court’s summary disposition on that were based motions plaintiff’s ground The deficient.1 notice was appeals conclude Because we consolidated. were require- minimum meet the notice did not 600.2912b(4) impo- respect to the ments against liability WM Cardiovascular of direct sition Spectrum nursing physician assistants for the part the trial court. the decisionof Health, reverse we to demon- have failed However, because defendants deficient and the notice was otherwise strate that prematurely suit in contravention did not file 600.2912b, the trial court’s denial of we affirm respects. summary disposition in all other AND PROCEDURAL HISTORY I. FACTS (Bush), Gary August who was 33 7, 2003, E. Bush On aneurysm surgery repair an aortic time, had at the Campus. Spectrum Health’s Butterworth 1 appeal. requests originally for leave to This denied defendants’ Court MD, Shabahang, unpublished Bush v Behrooz-Bruce order of See (Docket 270433); Bush v 4, Appeals, August No. entered Court of MD, Shabahang, unpublished Behrooz-Bruce order Court (Docket 270437); Bush v Behrooz- 4, August No. Appeals, entered MD, Appeals, Shabahang, unpublished order of the Court of Bruce 270897). (Docket granting 4, August in lieu of No. entered appeals appeal, Supreme remanded these for consid our Court leave Heiser, (2006); v See Bush granted. 477 Mich 934 eration as if leave Spectrum Shabahang, Health (2006); Mich 934 Bush (2006). Campus, Su On remand from our Butterworth 477 Mich 935 Court, assigned appeals new docket numbers and were preme were MD, Shabahang, unpublished See Bush v Behrooz-Bruce consolidated. (Docket 21, Appeals, Nos. entered December order of the Court 274726). 274708, 274709, and Shabahang Heiser, who are surgeons employed by WM Cardiovascular, performed surgery. Plaintiff, guardian, Bush’s claims that when cut chest, open Bush’s he lacerated the aneurysm, which made it necessary for Heiser to cannulate Bush’s femoral artery femoral vein so that Bush could be on a placed heart-bypass machine surgery before the could proceed. M.D., Defendants George Sugiyama, T. Mansour, and M. M.D., Ashraf who are vascular surgeons with defendant Associates, P.C., Vascular repaired Bush’s femoral artery vein, and femoral respectively. According plaintiff, the injuries Bush during suffered the surgery and his during recovery rendered him unable lead an independent life. 5, 2005,

On August which just days was before the expiration of the applicable period limitations, plaintiff served a notice of intent to file a medical- malpractice against Heiser, Shabahang, Sugiyama, Mansour, Cardiovascular, WM Vascular Associates, and Spectrum Sugiyama, Health. Man- sour, Associates, Vascular and Shabahang responded plaintiff’s required notice as by MCL 27, 2006, On January which was 175 after plaintiff served notice on defendants, plaintiff filed his complaint against all defendants. thereafter,

Shortly Sugiyama, Mansour, and Vascular Associates moved for summary disposition under MCR (10). 2.116(C)(7), (8), and They argued that dismissal (1) appropriate on grounds: two failed to file a notice that complied with the (2) 600.2912b, plaintiff failed to wait the required days before his filing complaint. Shabah- Heiser, ang, and WM joined Cardiovascular the motion. Spectrum Health later filed its own motion for sum- mary disposition solely based the alleged deficiency of the notice. App [May- 703 Opinion Court motions, that the plaintiff argued

In to these response Plaintiff statutory requirements. minimum notice met the complaint pre- that the was allegations responded to the notice responses that the maturely by arguing filed to the no- responses defendants’ deficient. Because were that he could deficient, contended plaintiff tice were from the date his after 154 complaint file properly Hence, concluded, his com- of the notice. service filed. not prematurely was plaint that the notice was insuffi- The trial court determined Mansour, and Sugiyama, Vascular regard cient with conclusion, trial the basis of that court Associates. On Man- summary disposition Sugiyama, in favor of granted The trial court also sour, and Vascular Associates.2 of Spectrum favor granted summary disposition alleged liability that its Health, only but to the extent and Mansour. Sugiyama based on the actions of granted summary disposition The trial court also to the claims of regard Health with Spectrum favor of Health’s Spectrum physician on the negligence part file a conforming failed to assistants because to the other doctors “[a]s affidavit of merit. opinion . .. the Court’s of the and defendants sufficient, motions are de- clearly is so those [notice] plaintiff’s nied.” The trial court also determined prematurely was not filed. its deci- reflecting trial court entered an order The 28, sion on 2006. April

These followed. appeals

II. SUFFICIENCY OF THE NOTICE arguments address defendants’ various We shall first satisfy failed to notice of intent to sue not at issue in the of these defendants The trial court’s dismissal present appeals. 600.2912b(4).3 STANDARD OF

A. REVIEW This Court reviews de novo a trial court’s decision on v Med summary disposition. Borgess a motion for Boodt (2006). Ctr, 621, 624-625; 728 NW2d 471 Mich statutory issue also questions interpre- This involves tation, Tousey which this Court reviews de novo. (2007). Brennan, 535, 538; 275 Mich 739 NW2d 128 App B. NOTICE OF MCL 600.2912b REQUIREMENTS commencing alleging Before an action medical mal- against a health or health practice professional facility, a claimant must each medical-malpractice provide and health notice professional facility health written 600.2912b(l); intent to file a claim. MCL see also Remand), Hosp (After Roberts v Mecosta Co Gen 470 (2004). 679, 685; The Mich 684 NW2d 711 notice must statutorily include several enumerated statements about the intended suit. See MCL Dis- appropriate remedy noncompliance missal is an provisions notice of MCL 600.2912b. Burton 745, 753; 691 424 City Hosp Corp, Reed NW2d (2005). However, presumed a notice is valid until suc- (On Remand), cessfully challenged. McCleary Potter v (2008). 279, 286; Hence, Mich App 278 748 NW2d 599 even a deficient notice will toll the of limitations period 600.5856(c). Potter, during period the notice under MCL And, successfully if the chal- supra at 286. lenged, remedy prejudice is dismissal without so cure the plaintiff may opportunity that the have the 2006, January 23, an amended On served defendants with 28,2006, April notice. in an order entered on the trial court voided challenged has this order on this amended notice. Because August 5, 2005, appeal, only sufficiency shall consider the of the notice. we Mich

deficiency unexpired portion period within the limitations. Id.

Although the notice must include each of state- 600.2912b(4), enumerated under MCL the claim- ments to ensure that the statements are required ant is not Boodt, Rather, need correct. at 626. the claimant supra “a effort to ‘set forth informa- only good-faith [the make degree specificity put with that which will tion] defendants on notice as to the nature of the potential ” Id., Roberts, against quoting supra claim them.’ at 701. reason, only For that the notice need meet the level of of a specificity generally required medical-malpractice Boodt, Further, MCL complaint. at 626-627. supra 600.2912b does not format for the require particular notice; they only statements in the need present be Boodt, “readily some decipherable form ....” Hence, question any 628. the relevant is not “whether specific portion required notice” contains the infor- mation, but read whether notice—when as whole— required contains the information. Id.

C. STANDARD-OP-CARE-STATEMENTS Cardiovascular, Heiser,4 Shabahang5 argue WM plaintiffs that notice failed to include a state- proper that, appeal, We note their brief on WM Cardiovascular and Heiser allege plaintiffs properly also that notice did not include statements regarding what WM Cardiovascular and Heiser should have done to comply applicable Although argument with standard of care. this only given cursory appeal, treatment on we have examined the issue and regard. conclude that notice was not deficient in this 5 Shabahang argues deficient, generally entirely the notice was directly appeal only plaintiffs purported give but on addresses failure to applicable By failing adequately notice of the standard of care. brief any regard sufficiency other claims of error with to the notice, Sunoco, Shabahang abandoned those claims. See Hamade Inc (2006). (R&M), 145, 173; Therefore, 721 NW2d 233 we analysis accordingly limit shall our to each applicable standard of care specific ment of disagree. them. We 600.2912b(4)(b), notice had to Under MCL alleged the standard of care. The include statement of profes- for each of the particularized standard must be Roberts, named in the notices. sionals facilities at 694. supra SURGEONS

1. WEST MICHIGAN CARDIOVASCULAR adequately Plaintiffs notice does not address standard of care to WM Cardiovascular un- theory liability properly der a direct for failure to The notice merely provides train or hire. WM competent Cardiovascular should have hired staff mem- bers and trained them. But the notice identi- properly for determining competency fies no relevant standard training or staff Nor can the standard properly persons. gleaned plain- be from the other sections of the notice: tiff failed to state Cardiovascular’s hiring how WM standard, failed state training practices violated hiring practices training which or methods it should employed, improper have and failed to state how those practices caused Bush’s For proximately injuries. this reason, to the extent that plaintiffs claims rest on these theories, the trial court should granted summary have in favor disposition of WM Cardiovascular. Id. at 694- 695. whole, Boodt, when read as a see

628, the notice did WM Cardiovascular provide liability. notice of vicarious The notice adequate pro- vided that facilities such as WM Cardiovascular had a duty competent employ- train and hire “properly including physicians compe- ees . . . . .. who are able to for, treat, assess, chart, monitor, diagnose, care tently . treat . . . .” The notice surgically patients refer . . and Mich 703

Opinion of the Court duties, that, of these WM provided further basis the breach of the “responsible Cardiovascular was for employees.” standard of of all their This was practice sufficient Cardiovascular on notice that place WM alleged that WM Cardiovascular could be held vicariously applicable liable for a breach of the standard by employees. of care its

2. HEISER If notice of the read in standard of care is notice, isolation from the remainder of the it clearly not provide particularized does standard Heiser. Roberts, See at supra 694. The standards of care for all physicians lumped together are and stated in the general practice most of terms: “The standard of care or be requires physicians competently ... able to treat, monitor, diagnose, for, care refer to special- other surgically ties and treat .” patients . . . Reduced to its core, merely this statement asserts that the standard requires physicians competent. to be But this sort of general averment is insufficient satisfy require- 600.2912b(4)(b). Roberts, ments See (noting general assertions that the standard of “ ” care requires give the defendants to care’ ‘prope[r] “ ” and render are ‘competent adequately advice’ Nevertheless, responsive). when this section is read in sections, conjunction with other adequately addressed the standard of care Heiser.

In dealing the sections with the manner of breach actions, and the recommended plaintiff noted that Heiser to be “for required prepared possible aortic aneurysm laceration during repeat sternotomy” and carefully had to “properly cannulate” Bush. The notice also provided given that Heiser should have Bush anticoagulant an to reduce the likelihood of an “embolic surgery duty event” and that after the Heiser had a “diagnose signs symptoms or treat or of stroke.” Although directly did not indicate that these care, under the standard things required were of context leaves no doubt that these statements are applicable statements of the standard of care to a surgeon acting given cardiothoracic under the facts. Hence, duty the notice that Heiser had a under provides the standard of care to be prepared types for that a complications during “repeat sternotomy,” arise steps to take to reduce the likelihood of an “embolic event,” to properly perform procedure the cannulation by in the and in placing clamp proper place such a way damage as to reduce to the and artery prevent plaque fragmentation, proper postopera- to ensure monitoring stroke, tive which Heiser should have known was a with possible complication type this Therefore, surgery. whole, when read as a notice contained a good-faith statement of the standard Boodt, of care plaintiff alleged applied to Heiser. at 626.

3. SHABAHANG noted, already As notice did not contain an adequate statement of the standards of care under the heading of that name. But as was the case Heiser, when the notice is examined as a whole regard specific headings, without to the the notice met 600.2912b(4)(b). minimal In addition to the statement that general Shabahang duty had a under the applicable standard of care to competently diagnose patients, plaintiffs treat and alleged Shabahang duty notice also that had a the risks properly evaluate associated with the various APP

Opinion the Court history before recommend- procedures based on Bush’s ing particular procedure. Specifically, plaintiff a stated Shabahang that have advised Mr. Bush of the “should given “history pedi- extreme risks Bush’s involved” aneurysm.” and the surgery atric cardiac location of Heiser, like provided Shabahang, The notice also been for the issues that prepared specific should have might during arise of this nature and procedure specific steps should have taken to reduce the likelihood postoperative complications. of both As operative duty, alleged of this part Shabahang ensured that Bush properly should have monitored for complications, Finally, plaintiff such as stroke. also clearly indicated had duty to use the oscillating saw with sufficient care as to avoid lacerat- ing aneurysm.

Plaintiffs adequately addressed the standard of care Shabahang as cardiothoracic surgeon.

D. STATEMENTS OF PROXIMATE CAUSE and argue WM Cardiovascular Heiser also that plain- tiffs notice failed to a proper contain statement con- cerning how these defendants’ alleged breaches of the standard of care proximately injuries. caused Bush’s We agree. do not

Plaintiffs notice had to also include a statement of the “manner in which it is alleged breach of the standard of care practice proximate or was the cause of 600.2912b(4)(e). injury claimed in the notice.” MCL In satisfy requirement, order to this the notice must specific allegations regarding contain the conduct of the Roberts, named defendants. at 699-700. supra case, In the present already we have concluded that notice met minimum requirements Shabahang alleging that WM Cardiovascular could be held vicari- ously Shabahang. liable for the actions of Heiser requirements Hence, whether notice met the proximate depends for the statements of cause proximate whether the statements of cause for Heiser met 600.2912b(4)(e).6 care,

As with standard of statement of proximate improperly cause bundled all defendants general under one umbrella statement that was too particularity requirements meet of the statute. See 600.2912b(4)(e). citing Roberts, 699-700, adequately whole, read when as a the notice states the manner in which Heiser’s breaches of the alleged standard of care are to have caused Bush’s injuries. provides that,

The notice because Heiser failed to properly perform procedure, the cannulation Bush’s artery injury “fragmentation suffered and there was plaque.” alleged Plaintiff also that Heiser’s im- proper technique “compartment syndrome” caused being that all this resulted in the cannulae’s in for an Finally, plaintiff that, excessive time. asserted had anticoagulant, might Heiser ordered the use of an Bush and, not have suffered an embolic event had Heiser proper monitoring, ensured Bush’s stroke could have properly. failures, claimed, been treated These “neurological injury, stroke, caused Bush to suffer sei- speech impairment, zures, deficits, ambulation embolic phenomenon subsequent syndrome with brain stem

6 Because WM Cardiovascular has not contested the statement of proximate Shabahang, analysis cause for we shall here limit our to the Nevertheless, proximate applicable statement of cause to Heiser. as noted opinion, later in this we conclude that the notice contained an also adequate proximate Shabahang. statement of cause for

Opinion op the Court ex- proximal upper opthalmoplegia, supranuclear with infarction.” These myocardial and tremity weakness to meet statements, together, read were sufficient when causation as proximate requirements the notice to Heiser. applied HEALTH’S CLAIMS OF ERROR

E. SPECTRUM challenges sufficiency also Spectrum Health Health con- Specifically, Spectrum notice. requirements the notice does not meet the tends for a statement of the standard of care and a statement for the or Heiser proximate hospital’s causation staff and in Shabahang. agree part disagree part. or We alleges notice errors on the Although plaintiffs part assis- Spectrum nursing physician Health’s staff tants, purport separate the notice does not to state and physician standard care for the nurses assistants. the fact that the notice problem compounded by This by not delineate the actions taken specific does nursing physician staff or assistants that purportedly Rather, plaintiffs breached the standard of care. performed asserts that the staff should have generally monitoring, charting, assessing, reporting and en- advocacy for the chal- gaged patient otherwise lenged physicians. Finally, actions of notice does the manner in which the identified breaches state Thus, injuries. caused Bush’s even when proximately whole, the notice is read as a it does not adequately Spectrum address the standard of care Shabahang. Health’s staff other than Heiser and For reason, agree Spectrum we with Health trial it concluded that plaintiffs court erred when notice met the minimum 600.2912b(4)(b) Health’s regard Spectrum Likewise, staff and assistants. to the nursing physician Opinion of the Court give extent that to notice that plaintiff purported Spec- directly trum Health could be held liable Bush’s on the it injuries negligently basis theories that staff, hired or failed to train its for the same reasons we regard Cardiovascular, with to WM explained we con- clude that the notice did not requirements meet the MCL 600.2912b. disagree Spectrum we Health’s con- that plaintiff adequately provide

tention failed to notice that Spectrum vicariously Health could be held liable for the actions of Shabahang. Heiser and As noted Cardiovascular, above with to WM regard plaintiff pro- vided notice that entities such Spectrum as Health were “responsible for the breach of practice the standard of employees[,] of all their or agents[,] assigns,” which Further, includes Heiser and Shabahang. we reject Spectrum argument Health’s had in- to clude a statement that, that asserted had Spectrum Health’s employees complied care, with the standard of Bush’s chance of obtaining a more favorable result would have been at least 51 or percent higher, see Ensink Mecosta Co Hosp, 518, 539; Gen 262 Mich App (2004), 687 NW2d 143 or a statement that Bush’s injuries reasonably were Legislature foreseeable. The did not include these in MCL 600.2912b(4), and we decline read them into the statute. Health

Spectrum argues also that the notice did not provide proper statements of the standard of care or proximate cause for Heiser and As Shabahang. already noted, proper included statements of Shabahang. the standard of care for both Heiser and already And we have also and rejected considered argument notice failed to make proper Therefore, statement of cause for proximate Heiser. Mich properly the notice remaining question is whether only applicable cause proximate included a statement Shabahang. cause proximate

As with the statement Heiser, entirety, notice met the when read its of proximate minimum for a statement requirements Boodt, Shabahang. the actions of regarding cause not Shabahang 626. The notice should have provided and should dangerous procedure recommended such a degree danger. It have informed Bush of the properly been better provided Shabahang also should have type for the associated with this prepared complications aneurysm. not lacerated the surgery and should have “ini- alleged directly Plaintiff further that this laceration herein leading tiated the cascade of events described injury leg compartment syndrome.” Finally, brain and left that, anticoagulant stated with the use of an and proper monitoring, injuries associated with embo- might mitigated. lic event have been avoided or These requirements statements were sufficient to meet the for a 600.2912b(4)(e) proximate statement of cause under MCL regard Shabahang. E CONCLUSION whole, plaintiffs When read as a notice met requirements minimum for statements of the standard and proximate Shabahang of care cause for Heiser and gave notice that Cardiovascular adequately WM vicariously Health could be liable for the Spectrum Shabahang. actions of Heiser and the notice did not meet the of MCL 600.2912b to the plaintiff sought extent that to hold WM Cardiovascular Health liable under a Spectrum directly negligent- and to the extent that hiring theory or a failure-to-train Opinion op the Court plaintiff sought to hold Spectrum Health liable on the basis of the actions of its staff members other than Heiser or Shabahang.

III. PREMATURE FILING OF COMPLAINT shall next We address Shabahang’s argument the trial court erred when it concluded that did prematurely file suit in violation of MCL 600.2912b(l).

A. STATUTORY NOTICE REQUIREMENTS A plaintiff is prohibited from an commencing action alleging medical malpractice unless the plaintiff given has the health professional written notice “not less than 182 600.2912b(l). days before the action is commenced.” MCL The notice must include a statement of the factual basis claim, for the care, standard of the manner in which it is claimed that the health professional care, breached the standard of the alleged actions that should have been taken to achieve compliance with the care, standard of the manner that the breach proximately caused the injury, the names of all profession- health als notified under the section in relation to the claim. MCL 600.2912b(4). The remedy defendant’s for plaintiffs a failure to comply provisions these is dismissal of the Burton, case. supra 753. Our Supreme Court has further held filing that the of a complaint before the expiration of the 182-day period notice does not com- Hence, mence the suit. Id. at 754. a suit filed before the expiration of the 182-day period notice will not toll the 600.5856(a). period Burton, of limitations under MCL at 756. days Within 154 after receipt required of the notice by 600.2912b(l), MCL a defendant must furnish a op Opinion the Court 600.2912b(7). MCL plaintiff. to the response

written of the factual include a statement must response The health defense, the of care the the standard basis for it is the manner which applies, claims professional with the professional complied the health claimed that the health care, and the manner which standard of alleged negligence that the was contends professional MCL plaintiffs injuries. of the not the cause proximate 600.2912b(7)(a) (d). not receive plaintiff to If the does 600.2912b(7) under MCL required response the written commence 154-day plaintiff may the period, within the 154-day period.” of the “upon expiration the suit 600.2912b(8). for Hence, although remedy MCL is dis- adequate an provide failure action, a defen- plaintiffs remedy missal of is that adequate response dant’s failure to file an the suit to 28 earlier may up commence plaintiff under MCL required than otherwise be would 600.2912b(l).

B. PREMATURE FILING AND NOTICE case, Shabahang In it is present undisputed notice. response provided that the notice did not meet the plaintiff argues appeal 600.2912b(7). Therefore, plaintiff contends, he could commence his suit properly further 154-day period. See upon expiration could Shabahang counters unilaterally response determine that the was inad- Instead, be considered response pre- must equate. Therefore, continues, sumptively adequate. required filed his to wait response, plaintiff once he had days.7 agree the full 182 We do not adequacy Shabahang’s hearing arguments re After oral on the notice, complaint sponse trial ruled that to the court Shabahang Opinion op the Court successfully challenge validity response the be- filing fore his under the shortened period 600.2912b(8). provided by MCL plain language 600.2912b(7), Under the of MCL medical-malpractice defendant must provide written response that the un- includes statements enumerated 600.2912b(7)(a) (d). through Further, der MCL a plain- tiff is entitled to suit commence the to 28 before up the expiration 182-day waiting the period required 600.2912b(l), under MCL plaintiff if the not “does receive the response required written under [MCL 600.2912b(7)] required 154-day within the pe- time 600.2912b(8) added). riod . . . MCL (emphasis Be- plaintiff cause the entitled the response required 600.2912b(7) by MCL 154-day period, within the it is clear defendant’s be response timely must must meet requirements substantive of MCL 600.2912b(7)(a) (d). through Therefore, aif defendant’s response is untimely either or does not meet the re- quirements 600.2912b(7), of MCL be plaintiff will entitled remedy provided under MCL 600.2912b(8). However, directly statute does not plaintiff address whether a must first challenge validity aof defendant’s response before utilizing 600.2912b(8). early-filing provisions of MCL in part relies on our Supreme Court’s Simmons, 8; decision in 727 NW2d Saffian (2007), proposition for the cannot unilaterally determine that his did response not meet 600.2912b(7). the requirements of MCL In Saffian, malpractice. sued After the defendant failed answer the complaint, Hence, prematurely implicitly was not filed. the trial court determined Shabahang’s response did not meet the appeal, Shabahang challenge On does this determination. 703 278 Mich op Opinion the Court 10. On Saffian, supra a default. the filed did not have to that he argued the defendant appeal, the complaint because answer require- the substantive merit did not meet affidavit of and, therefore, never com- of MCL 600.2912d ments disagreed. Court Supreme menced the suit. Our 600.2912e(l) “pro- that MCL The Court first noted action malpractice in a medical vides that a defendant after the complaint within ‘shall’ answer in compliance filed ‘an affidavit plaintiff has ” The then at 12. Court Saffian, supra section 2912d.’ 600.2912e(l) in MCL or “nothing either explained 2.108(A)(6) a defendant to determine MCR authorizes merit unilaterally affidavit of whether Saffian, 600.2912d.” satisfies statutory After the absence of noting at 13. for a unilateral deter- language providing defendant’s affidavit, concerning sufficiency of the mination Appeals Court noted that the Court of approvingly and concurrence had determined that it was majority sufficiency the trial court to determine the up to such, until rebutted in a pleadings. properly Id. As presumed of merit is judicial proceeding, an affidavit its justified holding policy valid. Id. The Court also presumption it would es- grounds; explained orderly challenging a “more for affida- process” tablish jus- “the efficient administration of vits advance tice . ...” Id. at 14. later, Supreme

Just a few months our Court reiter- valid. presumptively ated that affidavits of merit are Rim, 581, 586; 734 Kirkaldy See NW2d (2007), 13. It further clarified citing Saffian, supra at the period that “a and affidavit of merit toll the affidavit is suc- validity of limitations until the ‘subsequent judicial proceed- in cessfully challenged ” ings.’ Kirkaldy, supra “Thus, at 586. if the defendant deficient, believes that an affidavit is the defendant challenge And, must the affidavit.” Id. if the challenge successful, the proper remedy is dismissal without prejudice, after which time the period of limitations resumes Id. running. Court, turn,

This adopted by analogy Supreme our Court’s treatment of potentially deficient affidavits of merit as Kirkaldy proper method treating 600.2912b(l). potentially deficient notices under MCL Potter, See Hence, Potter, at 286. under a notice of presumed intent valid until successfully challenged. Further, Id. the remedy for a successful challenge “is dismissal without prejudice, affording the plaintiff the opportunity to cure deficiency the within the time remaining within the limitations period as theretofore by tolled the now-invalidated notice or the subsequent filing of the complaint.” Id.

Although the presumption validity of for affidavits of merit and notices under Saffian, Kirkaldy, Potter appears applicable by analogy response the required by 600.2912b(7), MCL on examination, closer the un- derlying bases in support of a presumption of validity for affidavits of merit and actually notices militate against such a presumption for the response required 600.2912b(7). by MCL preliminary matter, As a it must be noted that the Court in Potter adopted the presump- tion for solely notices on the basis of Kirkaldy, which turn relied exclusively Saffian-, neither the Court in Kirkaldy nor the Court in Potter offered an independent of analysis the bases for the presumption. Saffian, In our Supreme Court relied on three bases for the cre- ation of the of presumption validity for affidavits of (1) merit: the absence of statutory language permitting a defendant to unilaterally determine whether the (2) typically valid, the fact that trial courts

affidavit was (3) policy sufficiency pleadings, the of determined orderly and efficient administration reasons such as the at 13-14. justice. Saffian, supra governing affidavits of statutory provisions the Under intent, did not Legislature spe- merit and notices comply failure to remedy for a cificallyprovide affidavits of merit requirements for with the substantive In and MCL 600.2912b. and notices. See MCL 600.2912d 600.2912b(8) contrast, remedy for a provides by MCL response required defendant’s failure to file the 600.2912b(7). statute, this language Under the plain medical-malpractice plaintiff “may commence” waiting the of 154 rather than passage suit after 600.2912b(l). by MCL See MCL days required full 182 600.2912b(8). “may com- By stating suit, Legislature implicitly mence” the —if the discretion to decide explicitly gave — to avail himself or herself of benefit whether Moreover, is not a response pleading a defendant’s 2.110(A) not a for the prerequisite under MCR and is in contrast to the filing any pleading. require This is notice, an merit and which are ments for affidavit of commencing to a medical- prerequisites both 600.2912b(l) suit. See MCL and MCL malpractice 547, 553; 2912d(l); Pollak, see also Scarsella (2000) filing that a of a medical- (noting 607 NW2d 711 an affidavit complaint is ineffective without malpractice merit), Burton, (noting supra 752-753 600.2912b(l) mandatory with MCL be compliance suit). medical-malpractice a fore the commencement of Thus, sufficiency to the of an affidavit challenge a challenge to the suit as a merit or notice constitutes of merit or notice Because a defective affidavit whole. op Opinion the Court suit, in will result the dismissal of plaintiffs the it is justice essential to the efficient administration of that the trial court determine the validity of affidavit or notice. contrast, In a plaintiffs early unilateral decision to file the belief that response the defendant’s MCL under 600.2912b(7) was deficient does not substantively affect rights; the defendant’s the defendant still may challenge filing as premature under MCL 600.2912b(l). Indeed; plaintiff who files before the expiration of the 182-day period waiting reliance 600.2912b(8) MCL assumes the risk that the trial court will conclude that the response defendant’s adequate and, therefore, dismiss the case. Finally, because limited number of within which a plaintiff may make 600.2912b(8), use of MCL it is impractical require challenge the defendant’s response by motion hearing before the By parties trial court. the time the issue, hearing could schedule a and brief the much —if not all —of the time afforded to plaintiff by MCL 600.2912b(8) would be lost. reasons,

For these we conclude that a does not need challenge the sufficiency response of the 600.2912b(7) required under MCL utilizing before filing shortened period provided by MCL Nevertheless, we caution that a plaintiff who files suit before the expiration 182-day of the period required 600.2912b(l) under MCL on the basis that defen- response dant’s did not meet the 600.2912b(7) still risks dismissal of his or her if suit trial court later determines the defendant’s re- Burton, sponse was adequate. See at 756.

C. CONCLUSION reasons, For these we conclude that could properly choose to expiration file after 600.2912b(8) in reli- in MCL specified

154-day period did not Shabahang’s response that on the belief ance 600.2912b(7). Conse- requirements of MCL meet the it did err concluded court when the trial quently, filed. prematurely was not plaintiffs that GENERAL CONCLUSIONS IV artfully, drafted more Although it could have been adequate notice contained statements proximate and causation to standard of care Further, WM put the notice Shabahang. Heiser and Health on that Spectrum Cardiovascular they vicariously be held claimed that could and Heiser. There- Shabahang liable for actions grant refused to fore, did not err when it the trial court claims disposition the basis defendants’ summary on regards. in these that the notice was deficient meet notice did not holding WM Cardiovascular purposes 600.2912b directly negligent- Spectrum Health liable under It also insufficient hiring theory. or failure-to-train regard to provide liability notice of vicarious members other than Heiser Health’s staff Spectrum Therefore, the trial court should have Shabahang. of WM summary favor Cardio- granted disposition plain- vascular and Health to extent Spectrum direct-liability theories and to rely tiffs claims extent claims Spectrum Health Health’s staff other Spectrum arise from actions of Shabahang.8 Finally, because than Heiser and after 154 on the elect to file suit properly could Shabahang’s response plain- his basis of belief above, already plaintiffs claims As the trial court dismissed noted against Spectrum to the extent that those claims were based on Health Spectrum physician assistants. the actions of Health’s Bush Opinion by Fitzgerald, EJ. deficient, tiffs notice was the trial did not err court it that suit prema- when concluded was not turely filed. part,

We affirm in in part, reverse and remand for entry of partial summary disposition without prejudice in favor and Spectrum of WM Cardiovascular Health consistent with this opinion. The limitations periods entry remain tolled until of the grants of all summary disposition. In other respects, we affirm. do jurisdiction. We not retain J., concurred. Beckering, (concurring part P .J. in and dissenting in

FITZGERALD, I part). respectfully the majority’s dissent from conclu- sion III that part the shortened notice con- period 600.2912b(8) tained in MCL applies a plaintiff when unilaterally response determines a defendant’s satisfy does not the of requirements MCL McCririe, In unpublished opinion per cu- Westfall riam of 30, the Court Appeals, issued March 2006 (Docket 265386),1 No. the argued they obligation were relieved of their to wait 182 days file complaint their because the defendants’ response to (NOI) their notice of intent comply failed to with MCL 600.2912b(7), thus triggering the 154-day shortened 600.2912b(8) notice in MCL provision eliminating 600.2912b(l). 182-day provision notice MCL A panel this Court determined p “[Resolution on 3 that of this requires issue this Court to construe MCL 600.2912b to Legislature ascertain whether in- plaintiff tended to authorize a in a medical malpractice unilaterally case to determine that a defendant’s re- 1 Supreme appeal April 24, The Court denied leave to in an order dated (2007). panel. 2007. 477 Mich 1110 I was member of the Westfall 703 Mich Opinion by Fitzgerald, EJ. 600.2912b(7) so as to with MCL comply failed to

sponse days to wait obligation relieve The complaint.” filing filing NOI before after plaintiffs’ argument, disagreed with panel p opined on 4: against

Plaintiffs, defendants their who filed NOI, argue with the providing defendants after period contained MCL shortened 600.2912b(8) However, plaintiffs applies did in this case. 154-day response within defendants’ written receive 600.2912b(8) does not language of MCL period. The time whether a unilaterally determine permit response the detailed defendant’s satisfies 600.2912b(7).Furthermore, 600.2912b does not MCL require 182-day ignore the notice a to authorize 600.2912b(l) response if the does defendant’s ment in MCL 600.2912b(7). Legislature The comply MCL could not plaintiff to a determi specifically a make have authorized complied regarding response whether a defendant’s nation 600.2912b(7). However, it did do so. If the not with MCL malpractice Legislature to allow medical had intended unilaterally determine whether a defendant’s to 600.2912b(7) so with MCL as to response failed to comply days obligation plaintiffs of to wait 182 after relieve the submitting filing complaint, it their NOI before a would authority in 600.2912b. expressly provided such MCL have Nothing language MCL indicates that in the 600.2912b grant authority Legislature to the to intended unilaterally the lan such a determination. When make ambiguous, a must be guage of a statute not statute Park, City [v 465 Allen enforced as written. Pohutski (2002)]. 675, may 683; 219 A court 641 Mich NW2d Legislature probable speculate to intent as Growers, language Cherry in beyond the used the statute. Bd, Marketing Bargaining & 240 Mich Agricultural [v Inc (2000)]. Furthermore, 153, 173; in 613 App 610 NW2d statute, construing should assume that an this Court Wilson, People v the statute was intentional. omission in 337, (2003), 345; in vacated NW2d Bush Fitzgerald, EJ. by Opinion (2004). part grounds on other 469 Mich 1018 Because the Legislature specifically did not authorize a medical mal- practice plaintiff unilaterally to determine whether medi- malpractice response complied cal defendant’s with MCL 600.2912b(7) obligation as to relieve of his days filing filing wait after the NOI before the com- plaint, presume Legislature’s we omission of such language [] expand was intentional refuse MCL 600.2912b(8) beyond language used in the statute. Irrespective response of whether defendants’ satisfied the requirements 600.2912b(7), detailed MCL re- response ceived provid- defendants’ within 154 after ing Therefore, defendants with their NOI. the shortened 600.2912b(8) period contained MCL does not apply.

I agree with the analysis and, therefore, dis- Westfall agree with majority’s conclusion that plaintiff could properly choose to 154-day file the after the 600.2912b(8) period specified MCL on the basis that the defendant’s did response not meet Even assuming, majority as the does, that “a plaintiffs unilateral early decision file in the belief that the response defendant’s under MCL 600.2912b(7) was deficient does not substantively affect the defendant’s rights,” 725, ante at such a policy is not consideration relevant to determining whether language of the statute is clear on its face.

Case Details

Case Name: Bush v. Shabahang

Court Name: Michigan Court of Appeals

Date Published: May 1, 2008

Citation: 753 N.W.2d 271

Docket Number: Docket 274708, 274709, and 274726

Court Abbreviation: Mich. Ct. App.