*1
Mich
BUSH SHABAHANG
(Calendar
136617,136653,
8,2009
Argued April
Docket
and
Nos.
136983.
5).
29,
July
No. Decided
2009.
Bush,
Gary
guardian
Bush,
Gary
protected person, brought
L.
as
of
E.
malpractice
against
a medical
action in the Kent Circuit Court
Shabahang, M.D.,
others,
damages
seeking
and
Behrooz-Bruce
for
injuries allegedly
by Gary
surgeiy
suffered
E. Bush as a result of
to
repair
aneurysm.
court,
Buth,
George
J.,
aortic
granted
an
The
S.
summary disposition
George
in
Sugiyama,
favor of defendants
T.
M.D.,
Mansour, M.D.,
Associates,
M. Ashraf
and Vascular
The
EC.
granted summary disposition
Spec-
court also
in
of
favor
defendant
Campus,
alleged
trum Health Butterworth
to the extent that its
liability
Sugiyama
based on
actions of
and Mansour and with
regard
negligence
part
Spectrum
to
claims of
on the
of
Health’s
physician’s
Summary disposition
regard
assistants.
was denied with
to the other defendants. The court also determined
com-
that the
plaint
prematurely
Appeals
was not
filed. The
of
Court
denied
applications
appeal by Shabahang,
Heiser, M.D.,
to
leave
C.
John
Michigan
Surgeons,
Spectrum
West
Cardiovascular
and
Health in
(Docket
unpublished
4,
August
270433,
orders entered
Nos.
270897).
Court,
Supreme
granting
and
The
in lieu
leave
appeal,
Appeals
remanded
matter
to the Court of
for consider-
(2006).
granted.
(2006);
ation as on leave
3. Actions Medical Malpractice File a Notice Intent Claim *4 — for Defective Notice Intent. Defective Notice Intent Cure statutory provision gives power to cure courts the defects processes, pleadings, proceedings for the furtherance within justice employed defects a of intent if a to cure Mich Opinion of the Court party good-faith attempt has made a content (MCL 600.2301). requirements statutory provision Pletkovic, (by Ganos), Evans P.C. L. Sandra for the plaintiffs.
Hackney, Grover, Bean, Hoover & (by PLC Richard K. Grover, Jr., Susan M. Ramage, Jeffrey Wesorick), K. for Shabahang, Behrooz-Bruce M.D. (by
Rhoades McKee Mark E. Fatum and Douglas P. Berge) Spectrum Vanden Health Butterworth Cam- pus.
Aardema, Sears-Ewald, Whitelaw & (by PLLC Brian W. Whitelaw and Timothy Buchalski), P. for John Heiser, M.D., and West Michigan Sur- Cardiovascular geons.
Amici Curiae: Granzotto,
Mark P.C. (by Granzotto), Mark for the Michigan Association for Justice.
Foster, Smith, Swift, & Collins P.C. (by Richard C. Kraus), for the University Michigan.
HATHAWAY, J. At issue before this Court is the proper interpretation 600.5856(c), of MCL as amended 87, PA effective April 2004. We have been asked to consider whether a defect in timely mailed notice of (NOI), intent provided to a medical malpractice defen- dant pursuant 600.2912b, to MCL precludes tolling of the statute of limitations a plaintiffs on medical malpractice claim. whether, We also consider and under circumstances, what may take advantage of 154-day statutory waiting period provided under 600.2912b(8). *5 BUSH V SHABAHANG Opinion of the Court MCL amendments the 2004 We conclude role of proper clarified significantly have 600.5856 While MCL 600.2912b. to pursuant provided an NOI 600.5856(d), been inter- has statute, MCL the former in an defects are found tolling when preclude to preted 5856(c), makes clear statute, § NOI, the current is determined tolling applies whether question timely, the Thus, if NOI is NOI. an of the the timeliness contained defects despite is tolled of limitations statute clarifica- Moreover, significant this light therein. of the NOI purpose hold that we tion of in NOIs defects by allowing for served is better statute 600.2301, which allows light addressed to be or defect” “any error disregard and amendment are not parties of the rights the substantial where We justice. is in the furtherance and the cure affected a party are met when §of 2301 the mandates hold the content attempt good-faith makes a a plain- hold that Finally, we §of 2912b. requirements 154-day waiting period advantage tiff take 2912b(8) to make defendant fails § where provided inNOI attempt reply a good-faith requirements. statutory content compliance in part, Appeals the Court of affirm therefore We court for to the trial and remand part, reverse opinion. this consistent with proceedings further PROCEDURAL HISTORY I. FACTS AND history of and underlying procedural facts The Appeals. by the Court of set forth case were well summarized: of Appeals Court (Bush), 7, 2003, Gary who was 33 at E. Bush August On aneurysm Spec- at repair time, surgery to an aortic had Shaba- Campus. [Behrooz-Bruce] Butterworth trum Health’s by [West Heiser, surgeons employed are hang who [John]
Opinion op the Court Michigan] performed [Surgeons], surgery. Cardiovascular [Gary Bush], guardian, Plaintiff L. Bush’s claims that when chest, aneurysm, open cut Bush’s he lacerated the necessary which made it for Heiser to Bush’s cannulate artery placed femoral and femoral vein so that Bush could heart-bypass surgery proceed. on a machine before the could M.D., George Sugiyama, Defendants T. and M. Man- Ashraf sour, M.D., surgeons who are vascular with defendant Vascu- Associates, EC., repaired artery lar Bush’s femoral and femo- vein, respectively.According plaintiff, injuries ral Bush surgery during during recovery suffered his rendered *6 independent him unable to lead an life. August 5, 2005, just days
On which was before expiration of applicable period limitations, plaintiff medical-malpractice a served notice of intent to file against Heiser, complaint Shabahang, Sugiyama, Mansour, Michigan] Cardiovascular, Associates, [West Vascular and Sugiyama, Mansour, Spectrum Health. Vascular Associ- ates, Shabahang responded and to notice as 600.2912b(7). required 27, 2006, January MCL On days plaintiff which was 175 after served defen- notice on dants, plaintiff against complaint his filed all defendants. Shortly thereafter, Mansour, Sugiyama, and Vascular As- summary disposition sociates moved for under MCR (10). 2.116(C)(7), (8), They argued and that dismissal was appropriate grounds: on plaintiff two faded to file notice complied requirements 600.2912b, that of MCL (2) plaintiff days failed wait filing before complaint. Shabahang, Heiser, his Michigan] [West Car- joined Spectrum diovascular motion. Health filed later its summary motion disposition solely own based on the alleged deficiency the notice. response motions, plaintiff argued
In
to these
statutory requirements.
notice met the minimum
Plaintiff
responded
allegations
to the
complaint
pre-
was
maturely
by arguing
responses
filed
that the
to the notice
responses
were deficient. Because defendants’
to the notice
deficient, plaintiff
were
that he
properly
contended
could
complaint
days
file his
after
from the date of service of
Hence,
concluded,
plaintiff
the notice.
complaint
his
was
prematurely
filed.
Bush Opinion of the Court
The trial court determined that the notice
insuffi
regard
Mansour,
cient
Sugiyama,
and Vascular
conclusion,
Associates. On the basis of that
the trial court
granted summary disposition
Sugiyama,
in favor of
Man-
sour, and
granted
Vascular Associates. The trial court also
summary disposition
Spectrum Health,
only
favor of
but
alleged liability
extent that its
was based on the
Sugiyama
actions of
and Mansour. The trial court also
granted summary disposition
Spectrum
in favor of
Health
regard
negligence
part
to the claims of
on the
Spectrum
physician
Health’s
assistants because
conforming
However,
failed to file a
affidavit of merit.
“[a]s
to the other doctors and defendants ...
the Court’s of the
opinion
clearly sufficient,
[notice]
so those
motions are denied.” The trial court also determined that
filed.[1]
plaintiffs complaint
prematurely
was not
Defendants appealed the trial court’s orders. The
Court of Appeals consolidated defendants’ applications
for leave to appeal.
May 1, 2008,
On
the Court of
Appeals issued a published opinion affirming in part,
reversing in part, and remanding to
trial
court for
further proceedings.1 The Court of Appeals
that,
held
when read
whole,
as a
the NOI was sufficient
with the requirements of
600.2912b(4),
except
with regard to the claims of
liability
direct
for training
*7
and supervision against
Michigan
West
Cardiovascular.
The Court also concluded that certain claims for vicari
ous liability against Spectrum Health were inad
equately pled.3 Accordingly, the Court of Appeals re
versed the trial court’s denial of summary disposition
on the deficiently pled direct liability claims and re-
1
Shabahang,
App 703, 706-708;
Bush v
278 Mich
Opinion of the Court granting an order manded to the trial court for disposition dismissing summary motion for Appeals The Court of af- prejudice. claims without ruling plaintiffs complaint firmed the trial court’s filed, could avail him- holding timely because the 154-day waiting period self of the shortened Defen- to the NOI was deficient. response defendants’ reconsideration of Health’s motion for Spectrum dant was denied. opinion three for leave separate applications Defendants filed in this Court. This Court consolidated the appeal on the granted argument applications.4 oral appeals argument applications, After oral on the Court leave to granted appeal.5
II. STANDARD OF REVIEW presented statutory interpre- The issues are issues of law, Statutory is a interpretation question tation. which this Court reviews de novo.6 This Court also regarding de novo trial decision reviews court’s summary disposition.7 motion for
III. ANALYSIS
600.5856(c)
A. MCL
AND TOLLING
The first
issue this Court
is asked to address is
NOI act to
whether
defects identified
tolling
bar
of the statute of limitations under MCL
600.5856(c),
as amended
2004 PA
April
effective
378, 383;
In re
Bush v
Bush v
Herald Co v
Investigation
Opinion of the Court 22, analysis 2004. Our necessarily begins with a review of the language §of 5856 before and after the 2004 amendments.
The 5856(d), § relevant language the predecessor 5856(c),8 §to provided tolling if operative given “notice is in compliance with section 2912b.” added.) 5856(c) (Emphasis The relevant language of currently provides that tolling is operative “[a]t the time given notice is in compliance with the applicable under period section 2912b . . . .” (Emphasis added.) The question arises whether the amendment mandates compliance with the entirety 2912b, §of such that a defective NOI does not get the benefit of tolling, or whether the new language focuses on compliance only the applicable notice 2912b, such that a defective NOI tolls the statute of limitations as long as it is compliant with the period. question
This was seemingly answered Roberts v (Roberts I)9 Mecosta Co Gen Hosp and Boodt v Borgess Ctr,10 Med both of which held that a defect in an NOI precludes tolling of statute of limitations during 182-day waiting period. Roberts I opined that MCL 600.5856(d) and MCL 600.2912b were inextricably tied. The Court held that “the statute of limitations cannot 600.5856(d) be tolled under MCL given unless notice is in compliance with all provisions of MCL 11 600.2912b.”*
However,
holding
was foundationally premised
on the pre-amendment
language.
explained:
The Court
5856(d)
former
was renumbered
the amendment
and now
5856(c).
appears
§as
(2002).
Hosp,
Roberts v Mecosta Co Gen
466 Mich
Opinion of the Court 5856(d) clearly provides notice must he Section *9 2912b(2) 2912b, just plaintiff § § as compliant with not only the contrarily Legislature intended contends. Had the presume applicable, § to be we delivery provisions of 2912b compli- limited Legislature expressly have the would 2912b(2). However, Legislature the did only §to ance Rather, § to all of 2912b. so. it referred do unambiguous, this Court is is clear and Since the statute 5856(d) result, the § As a enforce as written. available to a tolling of the statute of limitations is met.[12] § only requirements included in 2912b are if all the I interpreted Roberts Significantly, former until 600.5856(d), not enacted as the amendment was Boodt, decided in I decided. while after Roberts was no reference to the 2004 amendment. made Rather, interpretation I it relied on Roberts in 5856(d), complaint because the presumably former amendment. Neither Boodt was filed prior at issue question I nor addressed the Roberts Boodt 5856(c) here, language the current namely, whether tolling in an NOI act as a bar to mandates that defects I and Boodt limitations. Since Roberts of the statute of no in longer of a statute that language relied on existence, interpretation the correct examining 5856(c) §with is an interrelationship and its 2912b first impression. issue of statutory is one of question this Court addresses Assuming Legislature that the has acted
construction. of statu- authority, purpose within its constitutional give to discern and effect to the tory construction is determining In the intent of Legislature.13 intent of the first look to the lan- this Court must Legislature, at 64. Id. 230, 236; Valley Ward, NW2d 119 Sun Foods Co v (1999). Bush v Opinion of the Court guage must, of the statute.14 The Court first fore- interpret language most, of a statute a manner that is the intent consistent with of the Legislature.15 “ possible, given every ‘As far as effect should be phrase, statutory clause, and word in the statute. The language grammati- must be read and understood its something context, cal it is clear unless different considering Moreover, was intended.’ when the cor- ”16 interpretation, rect must statute be read as a phrases, important, Individual words and while whole.17 legislative should be read in the context of the entire defining particular statutes, While words in scheme.18 plain meaning we must consider both the of the critical phrase placement purpose word or and its statutory scheme.19 conjunc- A statute must be read tion with other relevant statutes to ensure that the legislative *10 correctly ascertained.20
intent is The statute interpreted must be in a manner that ensures that it harmony statutory in works with the entire scheme.21 pay particular Moreover,courts must attention to statu- tory change statutory amendments, because a in lan- guage presumed legislative change is to reflect either a meaning clarify in the of the statute itself or a desire to interpretation original the correct of the statute.22 14 Id.
15 Id.
16
Co,
352, 366;
Herman v Berrien
570,
(2008),
Mich
481
750 NW2d
579
Valley,
quoting
Sun
Finally, analysis an statute’s ascertaining legislative in intent.23 important an tool 600.5856(c), first To determine the intent of MCL we version plain language. pre-amendment look at its stated: of 5856 repose are tolled:
The statutes limitations or (a) copy complaint At the time the is filed and a of the complaint on the defendant. summons and are served (b) jurisdiction At the time over the defendant is other- acquired. wise
(c) copy complaint At the time the is filed and a of the complaint good placed faith in the summons and are service, hands of an officer for immediate but in this case days longer not tolled than after the statute is complaint by copy of the summons and is received officer.
(d) If, during applicable period under section 2912b, by a claim would be barred the statute of limitations repose, longer days equal for not than a number of days applicable number of in the after the given compliance date notice is with section 2912b. [Emphasis added.] 600.5856, as amended Legislature
states: repose any The statutes limitations or are tolled following circumstances:
(a)
filed,
complaint
copy
At the time the
if a
complaint
summons and
are served on the defendant
supreme
within the time set forth in the
court rules.
*11
(b)
jurisdiction
At the time
over the defendant is other-
acquired.
wise
396, 415;
Complaint,
See In re MCI Telecom
(1999). Bush v Opinion op the Court
(c) given compliance At the time notice is with the 2912b, applicable period during under section if period by a claim would be barred the statute of limitations repose; case, longer but in this the statute tolled not is days equal days than the number of to the number of remaining applicable in the after date given. [Emphasis added.] notice is In comparing the lan- pre- post-amendment guage, it is clear that the focus of the lan- operative guage opined has been clarified. Roberts I that the focus 5856(d) §of compliance § was on 2912b in its 5856(c) In entirety. contrast, § the focus of the new unquestionably limited compliance with the “appli- cable notice period.” out,
As Roberts I pointed if the had Legislature 2912b, § intended to limit the applicability of it would have expressly compliance limited in the statute. The § 2004 amendment of 5856 does It precisely that. limits compliance to the notice period Thus, under 2912b. pursuant language to the clear of 2912b and the new 5856(c), if a plaintiff complies applicable notice period before a medical commencing malpractice action, the statute of limitations is tolled.
Defendants
disregard
ask us to
the change to the
language
§of 5856 and
change
assume that
merely inadvertent. They urge us to
interpret
amended statute in the same manner that Roberts I and
interpreted
Boodt
the pre-amendment statute. We cannot
do so. This Court cannot assume that language
chosen
the Legislature is inadvertent.24
contrary,
To the
Court must assume
express
that an
legislative change
denotes either a
in the
change
meaning of the statute
itself or a clarification of the original legislative intent
Baking,
Lawrence
170 Opinion op the Court change cannot assume of the statute.25 We language at of the new nothing means all. 5856(c), “compliance applicable § 2912b,” clearly and sets unequivocally under section comply only NOI must plaintiffs forth that applicable period. sum, analysis
In neither the Roberts I nor the Boodt analyses both were in the matter before us because applies in longer §of 5856 that is no based on a former version authority, in its has Legislature, exercising existence. The by of the statute and we must abide changed language Thus, that, hold to the clear pursuant that action. we 5856(c), § § if a files a language of 2912b a medical timely commencing malpractice NOI before action, is tolled despite the statute of Hmitations in the NOI. presence of defects B. OF A DEFECTIVE NOI CONSEQUENCE In of the fact that a defective NOI does not bar light 5856(c), of the statute of limitations under we tolling pre- must now consider what a court must do when sented with a defective NOI.26 25 451; Ettinger City Lansing, App Id. See also v 215 Mich 546 NW2d (1996), sitting Markman, 652 wherein Justice then at the Court of joined by Appeals then-Judge opined: CORRIGAN, correctly plaintiffs general proposition We note that state the changes statutory language presumably change reflect a Co, 208, 217; meaning. App v Benzie Wortelboer (1995). However, changes statutory language may NW2d 603 attempt clarify meaning provision than
reflect an
rather
392, 403;
change
Id.;
Hebert,
App
v
Mich
it.
see also Evans
(1994).
NW2d 164
opined
tolling
in the
The Boodt Court
because no
was afforded
5856(d),
pursuant
presence
of a defect
action was not
2912b(l). Boodt,
analysis
person shall facility or health professional against a health malpractice professional given the health person has unless less this section facility notice under written *13 health is commenced. days the action before than (2) required under intent to file a claim notice of The (1) profes- known the last be mailed to shall subsection the health residential address address or business sional subject of the facility is the who professional or health evidence prima facie mailing constitutes claim. Proof profes- known If no last compliance with this section. reasonably be can address or residential sional business facility the health ascertained, may be mailed to rendered. the claim was is the basis for the care that where (4) health professional or given to a health The notice of at a statement contain facility under this section shall following: least all of
(a) basis for the claim. The factual (b) alleged by practice or care applicable standard of The the claimant.
(c) applicable that the in which it is claimed The manner by the health practice or care was breached standard of facility. health professional or (d) taken to have been alleged action that should practice or alleged compliance standard achieve care. bought for cases tolling of limitations preclude of the statute does not 5856(c). malpractice is result, action a medical As a whether
under
5856(a)
presence
depend
or
on the
purposes
does not
commenced
the NOI.
of defects within
absence
(f) professionals all The names of health and health notifying facilities the claimant is under this section relation to the claim. days receipt Within after of notice under
section, professional facility the health or against health whom the claim is made shall furnish to the claimant or his or her representative response authorized a written following: contains a statement of each (a) The factual basis for the defense to the claim. (b) practice The standard of or care that the health professional facility or health applicable claims to be professional facility action and the health or health complied standard.
(c) The manner in which it claimed the health professional facility or compliance health that there was applicable practice standard of or care.
(d) professional The manner in which the health *14 facility alleged negligence health that contends the of the professional facility health proximate or health was alleged injury alleged cause of the damage. claimant’s (8) If the claimant does not receive response the written required under 154-day subsection within the period, alleging time claimant commence an action malpractice upon expiration 154-day medical of the period. 2912b(l) plain § language mandates that a
plaintiff shall not commence an action for medical malpractice without a filing timely Notably, NOI. how- ever, the regarding statute silent consequences filing a defective NOI. The statute makes no reference whatsoever to a mandatory dismissal penalty Bush Opinion op the Court begins with whether Thus, inquiry our of a defect. event § 2912b under prejudice with mandatory a dismissal of an In the absence Legislature. the intent of the itself, legislative within the statute directive express 2912b, its purpose, placement § the statute’s history of scheme, review of statutory and a the broader within instructive guides. statutes are other relevant history of the reveals legislative A review to be a defect in an NOI did not intend for Legislature on prejudice based for dismissal grounds for conclusion The clearest indication this 2912b. rejection of a manda- complete Legislature’s was the NOIs was creating The statute tory dismissal clause. January Bill as Senate 270 on originally introduced pro- what was then 28, 1993.27NOIs were codified 2912d, to proposed companion posed 2912f. Section 2912f, mandatory penalty dismissal contained a § 2912f. The bill as introduced to failure provided: subsection, in this in an Except provided as otherwise the court shall dismiss alleging malpractice, action medical required under section claim not in the notice included [Emphasis added.]
2912f. did not have penalty provision Significantly, Mandatory was not votes dismissal pass. sufficient This Court Legislature. previously has the will history may be used recognized legislative held legislative previously intent. This Court determine certain has considered Legislature “[w]here rejected language, it favor other language statutory should not be held resulting language DeGrow, Van in the Senate Senators This bill was introduced Ehlers, Wartner, Emmons, Schwarz, Gast, Cisky, Welborn, Regenmorter, Pridnia, Dunaskiss, Arthurhultz, DiNello, Koivisto, Bouchard, Geake, McManus.
174 484 Mich 156 Opinion op the Court Legislature explicitly rejected.”28 authorize what the We can draw no conclusion from the omission of the dis- § missal penalty 2912b other than it was not the intent of the a Legislature incorporate mandatory dismissal into penalty 2912b.
The stated
2912b
purpose
provide
was
“promoting
mechanism for
settlement
need
without the
for formal litigation, reducing the cost medical mal-
litigation,
compensation
and
practice
providing
meritorious medical malpractice claims that would oth-
erwise be
from
precluded
recovery because of litigation
,”29
costs.
. .
To hold that
2912b in and of itself
with prejudice
mandates dismissal
would complicate,
prolong,
significantly
and
increase
expense
liti-
28
Complaint,
Similarly,
In re MCI Telecom
Ameritech must
toll
intraLATA
There
however, nothing
statute,
on the face of this
or within the
language
Legislature,
enacted
that would hold the
Indeed,
Legislature specifically
reverse to be true.
where the
language
it,
authorizing
linkage,
rejected
considered
such a
Appeals clearly
the
inextricably
ity.
holding
Court
erred in
that the statute
dialing par-
linked intraLATA and interLATA toll
Complaint,
[In re MCI Telecom
415-416.]
Mich at
Co,
489, 492-493, 495;
See also
v
Nation WDEElectric
454 Mich
(1997);
Co,
NW2d 233
Miller v State Farm Mut
Ins
Automobile
410 Mich
538, 566;
(1981);
Adamowski,
People
422,
Further, legislative medical the broader § context within look to 2912b’s so, the To do we examine statutory scheme. malpractice medical malprac- of the as a whole. Our review statute as a designed it was indicates that legislation tice on requirements scheme, imposing equivalent balanced to required are and defendants. Both plaintiffs both file process comparable NOI the participate comparable affi- required to file Both are documents.30 Both are and answers.31 complaints to accompany davits witness expert qualifica- to the same meet and balanced comparable In these light of tions.32 compa- likewise be penalties the should requirements, only penalty provision It that the significant rable. is shortening § of the very minor: included 2912b In the days.33 light waiting period by defendant’s defendant, it be inconsistent for a would penalty minor to legislative in the scheme approach the balanced on Legislature impose intended assume the dismissal with penalty possible: the harshest prejudice.34
30 See MCL 600.2912b. 31 MCL and MCL 600.2912e. See 600.2912d
32MCL 600.2169. 600.2912b(8). rejection penalty Legislature’s the clear of dismissal as Given 5856(d), 2912b, question § whether § and its we amendment 5856(d) tolling preclude Legislature of the statute ever intended timing presence in the of defects in an NOI. limitations chosen, amendment, legislative history support language and the change to be a clarification of intended conclusion being representative original rather it of a intent of the statute than Accordingly, question change original intent. we whether from correctly decided, they as failed to consider I and were Roberts Boodt However, legislative history legislative and the involved. scheme entire Mich 156 Opinion op Court legislative intent,
In we determining should also statutory consider other relevant To provisions. (RJA) end, we consider the Revised Judicature Act if appropriate see other remedies exist that are consis- purpose tent the intended 2912b. We long have recognized provide that the RJA does a mechanism to cure certain defects in MCL pleadings within 600.2301. We note that the language goes beyond of 2301 concept limited of “pleadings” amendment and al- for curing any lows of certain defects in “process, proceeding.” pleading or
MCL 600.2301 states:
*17
any
in
proceeding
pending,
court which
or
action
is
power
any process,
has
pleading
proceeding
amend
or
in
proceeding,
substance,
such action or
either in form or
for
justice,
furtherance of
just,
any
on such terms as are
at
judgment
time
every
before
rendered therein. The court at
stage
disregard
of the action
proceeding
any
or
shall
error
or defect
in the proceedings which do not affect
rights
parties.
substantial
Service of
clearly
an NOI is
of a
part
malprac-
medical
“process”
tice
or
in Michigan.35
“proceeding”
Section
2912b mandates
“an
alleging
action
medical mal-
practice” Michigan
“shall not commence .
.. unless
person
has given
professional
the health
or health
,”36
facility written
.
notice . .
Since an NOI must be
given before a medical
claim
malpractice
filed,
can be
the service
an
is a
part
of NOI
a medical malpractice
filing
2004,
because the
NOI
in this case occurred after
this issue is
us,
deciding
not before
and we will
present
refrain from
issue in
case.
35
(After Remand),
See
v
Hosp
Roberts Mecosta
Gen
Co
(2004) (Roberts II) (“[W]e
691; 684
acknowledge
711
NW2d
provided
stage
notice of
is
malpractice
intent
at the earliest
of a medical
proceeding.”)
(emphasis added); Boodt,
Opinion of the Court are just.”39 early Given that NOIs served at an such stage in the are be proceedings, so-called “defects” to expected. The statute contemplates that medical may have records been turned over before NOI is to mailed the defendant.40 who Defendants receive these are sophisticated notices health professionals background extensive medical In- training. deed, these same defendants are allowed act to as their reviewing experts. own A defendant has enough who expertise medical to in his or her own opine defense certainly has to ability understand the nature being claims asserted him or against her even in the presence defects the NOI. Accordingly, we conclude right no substantial of a provider health care implicated. Further, hold we that the prong second test, requires which that the cure be in the further- justice, ance of is satisfied when a party makes a good-faith attempt comply with the content require- § Thus, ments of only 2912b. a plaintiff when has not 2912b(4) made good-faith § attempt comply with should a trial court consider an dismissal of action without prejudice.
We must now turn to the instant NOI to determine the nature of the defect whether The invoked. NOI is pages long. Plaintiff made a good-faith to address attempt each of the subsections 2912b(4). enumerated in held, The of Appeals Court agree, and we that the majority vast NOI 2912b(4).41 was in compliance with The Court of Appeals held that NOI defective with respect to
39 MCL 600.2301. 600.2912b(5) provides exchange of medical records. regard against court found no defects the claims individually doctors, liability against named the vicarious claims West Michigan Surgeons, liability Cardiovascular and the vicarious claims against Spectrum Shabahang. Health for Heiser and *19 Bush v op Opinion the Court Car- Michigan West defendant against made the claims and training supervi- for liability for direct diovascular direct claims for respect sion, and also with nurses for its Health Spectrum against asserted liability defects, these analyzing In assistants. physician’s and stated: Appeals of the Court adequately address the notice does Plaintiffs Michigan] Cardio- applicable [West to care of standard liability theory for failure direct under a
vascular
merely provides that
or hire. The
properly train
hired com-
should have
Michigan] Cardiovascular
[West
them. But the
properly trained
members and
petent staff
determining
for
standard
identifies no relevant
can
training
persons. Nor
properly
staff
competency or
the other sections
gleaned from
the standard be
Michigan]
[West
state how
plaintiff failed to
notice:
training practices violated
hiring and
Cardiovascular’s
hiring practices or
standard,
to state which
failed
that
training
and failed to
employed,
it should have
methods
proximately caused
practices
improper
how those
state
reason,
the extent that
injuries. For this
Bush’s
theories, the trial court
these
rest on
plaintiff’s claims
summary disposition in favor
granted
should have
Michigan] Cardiovascular.
[West
alleges
part
errors on
Although plaintiffs notice
physician
nursing
assis
staff and
Spectrum Health’s
separate
tants,
purport to state
does not
the notice
physician assistants.
and
care for the nurses
standard of
the notice
by the fact that
compounded
problem is
This
by the
specific
taken
actions
not delineate
does
purportedly
nursing
physician
assistants
staff
Rather, plaintiff’s notice
care.
the standard
breached
performed
have
the staff should
asserts that
generally
en
assessing,
reporting and
charting,
monitoring,
chal
patient
otherwise
advocacy
gaged Finally, the notice does
physicians.
lenged
the actions
identified breaches
which the
manner in
not state the
C. MCL given Appeals Next, held the Court Shabahang’s response defec- NOI was requirements MCL did not because it meet tive plaintiff 600.2912b(7), question arises whether 182-day period full before to wait the was filing malpractice he action, or whether his medical 154-day period. avail himself the shortened could by examining analysis again begins text Our 600.2912b(7).45 that defen- statute is clear The response provide with a written dant must provision days receipt This NOI. within mandatory. response must a statement of include defense, care factual for the the standard of basis professional applies, the claims manner that the health *21 professional the in which it is claimed that health complied care, in the of and the manner with standard alleged professional the the contends that which health negligence proximate the not the cause of was injuries. plaintiff the If the does not receive written 600.2912b(7) response required MCL within the under 154-daywaiting period, plaintiff may file after the suit expired.46 waiting period 154-day has any provides shall be made “on such MCL 600.2301 that amendment justice just.” light provision, this terms as are We note that in would original any having relate back to the time served amendment pleadings mailed, accord with the treatment afforded to when NOI was 2.118(D). amended under MCR III(B) opinion part this for the full text. See 600.2912b(8) provides: “If the does not receive the claimant response required subsection within written under Mich 156 op Opinion the Court Shabahang’s
According Appeals, Court re- was sponse defective did not with the statute. comply Despite response, Shabahang argues plaintiff still required 182-day was to wait the full waiting before filing plaintiff suit because received a response Plaintiff, hand, argues the NOI. on the other that because requirements 2912b(7), did meet the it proper was to commence his suit upon expiration of 600.2912b(8). the 154-day period, as allowed under MCL Shabahang unilaterally counters that could not determine that the response inadequate, was contending a judge adjudicate must plaintiff may issue before file the complaint early.
Once we turn again to the standards set forth § 2301 for guidance. Section 2301 similarly allows for “amendment” or “disregard” of defects in responses to NOIs, as long as cure is justice furtherance of and does not affect the rights substantial of the parties. Significantly, must good-faith defendants make a at- tempt to with requirements the content of the statute to avail themselves 2301.
Shabahang’s one-page response to the NOI
utterly
lacking
a good-faith attempt
comply.
The entire
portion
substantive
of Shabahang’s response stated:
1. FACTUALBASIS FOR DEFENSE TO CT.ATM
case,
The medical
together
records involved in this
deposition testimony,
primary
will form the
defense
Briefly,
this case.
Dr.
contends that he
154-day
period,
alleging
time
the claimant
an
commence
action
malpractice upon
expiration
154-day period.”
medical
holding today
We note that our
does not
conflict
Omelenchuk v
*22
City Warren,
567, 575;
(holding
Opinion op the Court Gary The evaluated, Bush. assessed and treated properly Shabahang were within standard of Dr. well actions care. 2. STANDARD OF PARE AND COMPLIANCE Shabahang required Dr. to do care The standard of records, which things in the medical demonstrated times, testimony. augmented by deposition At all he further in his care and treat- within the standards care acted Gary Bush. ment
3. MANNER OF COMPLIANCE Shabahang Dr. § 2 manner in which See The above. is outlined in complied applicable standard of care augmented by records, and will be further the medical deposition testimony. sworn PROXIMATE CAUSE
4. Shabahang his did position Dr. actions It is degree probability of medical not within a reasonable alleged by Gary any way complications contribute in position Dr. Additionally, it is the Bush. any Gary Bush was not in
the current medical condition of of Dr. Shabah- way caused contributed the activities ang. general a state- required to make
Shabahang was 2912b(7). He failed to contained in ment of factors nothing more than Shabahang’s response do so. Indeed, Shabahang wrongdoing. any blanket denial of his the content of the himself does not defend efforts or Rather, defen- response arguments this Court. his response takes the the content position dant of the NOI disagree. purpose is irrelevant. We cost-saving method to waiting period provide is to *23 156 Mich Opinion of the Court If resolve meritorious claims. a defendant does wish to use process, plaintiff the is to entitled accelerate filing complaint. the the A can defendant either plaintiff advise the of the decision to waive47 or the may all, defendant do nothing trig- at either which the gers waiting However, shortened period. we cannot a so flagrantly allow defendant to disregard process and fail make a good-faith attempt comply, yet to to still advantage take full waiting period. As Shabahang did not make a good-faith attempt comply to 2912b(7), he cannot avail himself of either 2301 or 182-day the full waiting period. fully
This result is consistent with the NOI statutory scheme. It makes little sense to a continue settlement period when one has party indicated that he or she has no interest in settlement. When a defendant has made little or no attempt statute, to will we not afford the same if benefits as he or she had made an attempt comply. to
Finally, defendant asserts that plaintiff does not have right unilaterally to a make determination on validity a response. We agree with the Court of Appeals that a plaintiff who unilaterally makes such decision does so at his or her own If peril. a court ultimately determines that the response is not defec- tive, plaintiffs complaint may be deemed untimely. However, given involved, limited time period it virtually would be impossible for a to adjudicate Court timely this issue on a By basis. the time the parties could hearing schedule a issue, brief the the short- ened time by § afforded 2912b be lost. would Therefore, we agree the Court Appeals that a plaintiff to choose make his own determination 600.2912b(9). See MCL Bush Dissenting by Opinion J. Markman, at but he does so response, of a sufficiency
regarding later determine having risk of court We conclude adequate. indeed response was defendant’s 2912b(7) file a complaint allows a NOI is defective. if early response the defendant’s IV CONCLUSION 600.5856(c), as pursuant hold that We 22, 2004, PA effective when April amended tolled of limitations is timely, statute an NOI *24 Moreover, in of light therein. defects contained despite 5856(c), hold that the of we legislative clarification by allowing of statute is better served the NOI purpose light §of to addressed in defects in NOIs for “disregard” “any “amendment” or of permits which rights the substantial or defect” where error cure is in the affected, long as as the are not parties just. A cure and on terms that are justice furtherance of a makes a justice party in the when furtherance require- to with the content good-faith attempt § we hold that a Finally, ments 2912b. provided 154-day waiting period of the advantage
take a make good- § 2912b defendant fails to a where in compli- NOI reply plaintiffs faith to attempt statutory requirements. ance with the content Court Appeals part, therefore affirm the We trial for and remand court part, reverse opinion. with this proceedings further consistent JJ., Kelly, C.J., Cavanagh, Weaver, and con- and J. Hathaway, curred disagree I (dissenting). J. Because
MARKMAN, notice-tolling provision interpretation majority’s interpretation of 600.5856, as as with its in MCL well 484 MICH156 Dissenting by Opinion J. Markman, regarding permissible a 600.2912b defendant’s to a I response sue, intent respectfully dissent.
I. FACTS AND HISTORY Plaintiff surgery August 7, 2003, underwent on an aneurysm aortic replacement. and heart valve Plaintiff alleges during the surgery defendant Behrooz-Bruce Shabahang, M.D., “cut aneurysm causing into the aortic and Heiser, M.D., laceration” defendant John Charles “improperly clamped causing [a] vessel vascular damage.” George Defendants Sugiyama, M.D., T. M. Ashraf Mansour, M.D., “were repair called the vein and artery.” Plaintiff alleges injuries caused surgery him have caused to become “unable to live without supervision assistance.” August 5, 2005,
On days two two-year before the period of limitations expired, plaintiff served defen- dants, including Spectrum Health Butterworth Cam- (the pus facility where the surgery took place), West (the Michigan Surgeons Cardiovascular entity to which Shabahang and belonged), Heiser and Vascular (the Associates, entity EC. to which Sugiyama and *25 Mansour belonged), with notices of intent file suit. Shabahang responded plaintiffs notice, as did Mansour, Sugiyama, Associates, Vascular but Heiser, Spectrum Health, and Michigan West Cardio- did 27, 2006, vascular not. On January days 175 after serving notice, filed plaintiff complaint his against all defendants. trial granted
The court summary disposition in favor of Mansour, Sugiyama, and Vascular Associates because plaintiffs did not include a standard care for 187 Bush Dissenting Opinion by J. Markman, reason, the trial For that same and Mansour.1 Sugiyama in favor of disposition partial summary granted court Sugi- liability based on alleged Health for its Spectrum trial malpractice.2 The alleged and Mansour’s yama’s however, court, summary disposition did not grant was complaint that the Shabahang, argued who favor of filed prematurely. appeal Appeals initially Court of denied leave
The (2006); Court, 477 but, remand Mich 934 by after (2006), affirming an opinion Mich 935 issued 477 regarding decision trial court’s respects most 278 Shabahang, Bush v sufficiency plaintiffs notice. (2008). 703; Court of App Mich NW2d however, held that the notice was defective Appeals, Health and liability against Spectrum the direct claims Surgeons, were Michigan Cardiovascular which West hire and train alleged properly on their failure to based claims, the remanded respect to those Court staff. With concluding that prejudice, for dismissal without tolled the defective of limitations had been statute periods and that limitations “applicable summary grants until entry remain tolled respect timing Id. at disposition.” 727. With plaintiffs court held that complaint, filed, timely although Judge was complaint FITZGERALD held to wait plaintiff would have Id. the suit. days giving commencing after notice before EJ., concurring part at 727-729 (FITZGERALD, dissenting part). appeal did not this decision and thus it is not before Plaintiff Court. granted summary disposition Spectrum also in favor The court Spectrum physician’s negligence based on Health’s Health on claims conforming file a affidavit of merit because failed to assistants claims.
with those
188
This Court consolidated these cases and initially
oral argument
heard
on defendants’ applications for
(1)
to appeal regarding:
leave
whether
the Court of
Appeals’ remand for dismissal without prejudice was
inconsistent with Boodt v
Med
481
Borgess
Ctr,
Mich
(2)
558;
(2008);
(1)
plaintiffs
whether the
defective notice
as
of intent
Michigan
defendants
Surgeons
West
Cardiovascular
Spectrum
Health tolled the
pursuant
limitations
600.5856(c),
by
MCL
as
87,
amended
2004 PA
effective
22, 2004;
April
Shabahang’s
whether defendant
response
intent,
defective
notice of
600.2912b(7),
presumed
was
such
valid
182-day period
filing
to wait
full
before
(2008).]
malpractice
his medical
[482
action.
Mich 1105
STANDARD
II.
OF REVIEW
This Court
questions
reviews
regarding summary
disposition “de novo to determine if moving party
entitled to
as a
judgment
matter of law.” Maiden v
Rozwood,
(1999).
109,
118;
Mich
III. TOLLING STATUTE
A. ANALYSIS A claim for malpractice medical must brought years within two from the alleged malpractice time the Bush Opinion Dissenting Markman, J. Mich Hosp Corp, v Oakwood Solowy place. takes (1997). however, claimant, A *27 843 214, 219; 561 NW2d by complying period limitations toll this can 5856(c) tolling allows Specifically, 600.5856.4 MCL malprac a medical commencing interlude to during the limita of § 2912b if the statute by action tice Ab period.5 that during expire otherwise tions would after two however, an action commenced tolling, sent 600.5838a(2). for Accordingly, MCL “barred.” years is summary disposition, to survive claims tolled, because been must have limitations of statute years and more than two complaint his filed alleged malpractice. date of the from the months five 600.5856(c) provides: MCL any repose are tolled or of limitations The statutes following circumstances: (c) given compliance with is At the time notice 2912b, during if period notice under section applicable by the of limitations be barred statute period a claim would longer case, tolled not the statute is repose; in this or but days days equal to the number than the number 3 provides malpractice claims limitations for medical The statute of damages bring action to recover person or maintain an a “shall not is commenced property the action injuries persons unless... or for (6). 600.5805(1) years].” [2 MCL within brought by during a claim can be Tolling which extends the time limitations. temporarily suspending the statute of 600.2912b(l) states: section, person provided a shall Except in this as otherwise against malpractice alleging medical an action not commence person facility has unless the professional health health or facility written notice professional or health given the health days the action is before not less than 182 this section under commenced. 484 MICH156 Dissenting Opinion by Markman, J. remaining applicable period in the notice after date given.[ notice is Previously provision this read: repose or tolled:
The statutes limitations are (d) If, during applicable period notice under section 2912b, claima would be barred the statute of limitations repose, longer days equal than number of days applicable number after the given compliance date with section 2912b. 600.5856(d).[7] [MCL
In
Roberts Mecosta Co Gen
Hosp,
64-66;
(2002) (Roberts I),
NW2d
held
Court
in order to toll
pursuant
pre-amendment
provi-
*28
sion, plaintiffs
notice must
with
MCL
600.2912b(4).8
question
The.instant
is whether under
the post-amendment provision,
the notice must also
(4).
§
comply with
2912b
The majority holds that under
6 Generally,
notice-tolling provision.
this is known as the
7
following: (a) factual The basis claim. for the (b) applicable practice alleged by The standard or care claimant. (c) applicable The manner in it which is claimed that practice profes- standard of or care was breached the health facility. sional or health (d) alleged The should action that have been taken achieve compliance alleged practice with the standard of care. Bush v Opinion by Dissenting Markman, J. notice, a defective notice-tolling provision amended nonethe- 2912b(4), will satisfy § does not i.e., one that and agree I do not limitations. toll the statute less still provision notice-tolling instead believe 2912b(4) in is compliant a notice requires effectively toll. order statute is to in obligation interpreting
The Court’s
expressed
intent as
Legislature’s
effect to
“give
Park,
Allen
City
Pohutski v
the statute.”
the words of
(2002). “[Language
683;
675,
641 NW2d
465 Mich
in a
be read
alone,
thus it cannot
does not stand
read in context
and must be
Instead, ‘it exists
vacuum.
v Guard
Timmis & Co
act....”’
G C
the entire
(2003).
416, 421;
Mich
662 NW2d
Co, 468
ian Alarm
or share
subject
the same
that address
“Statutes
read
and must be
materia
pari
are
purpose
common
Legislature’s
fully
reveal
as a whole”
together
599, 621; 739 NW2d
People Harper,
intent.
Co, 55
v Prentiss Lumber
(2007);
also Turnbull
see
(1884).
notice-tolling
The
387, 394;
Furthermore, allowing notice-tolling provision to be triggered notice makes little sense defective considering provision only “if applies during [the notice applicable period] a claim would barred 600.5856(c). by the statute of limitations.” MCL One fairly say cannot that a claim would be barred “during” the notice when the period period has not begun due to failure file a sufficient notice. Further, tolling period is equal to the “number of days remaining in the applicable period after the 600.5856(c). given.” date notice is Because a defective notice does create an applicable notice § 2912b(l), days under the number of remaining Thus, that period cannot be determined. if a defective notice is toll, allowed notice-tolling provision *30 Bush v Dissenting by Opinion J. Markman, determining tolling the for guidance no provide would notice-tolling the by manner which only The period. interpret is to meaningful effect given can be provision contemplated specifically the notice requiring it as notice 2912b(4), period the applicable which creates refers. Accord- tolling provision repeatedly which a defective I believe that contrary majority, ingly, under of limitations cannot toll the statute 5856(c). it did because Here, notice was defective plaintiffs the standard of any regarding statement not contain against West liability direct alleging care for claims Health. Plain- Spectrum Michigan Cardiovascular regarding the any include statement tiffs failure to alleged and Mansour’s Sugiyama’s of care for standard for vicari- makes the notice defective also malpractice Health based against Spectrum claims liability ous notice was Because upon malpractice. their of limitations regard, in this the statute defective 5856(c). Moreover, §by was not tolled those claims tolled, and of limitations was not because the statute than two was filed more plaintiffs complaint because claims are these years alleged malpractice, after the prejudice. and should be dismissed with time-barred B. RESPONSE TO THE MAJORITY is at odds with its own majority’s interpretation in a interpreted must be assertion that statute “[t]he harmony that it works manner that ensures By focusing only Ante at 167. statutory scheme.” entire notice-tolling provi- in the language on the amended clause, implica- majority disregards first sion’s Ante at of the remaining provision. of the portion tions of the light analysis incomplete an 169-170. Such remaining portion correlation that direct Mich 156 Dissenting Opinion J. Markman, provision period. has with 2912b its notice Al- though legislative may only amendment have al- §of 5856(c), tered whole parts scheme nonetheless Legisla- must be considered in order to determine the ture’s intent. The numerous references 5856(c) period necessarily §in mean that 2912b(l) by § established must have come into being *31 for any effect, those references to be place given first only and this can take when place complies 2912b(4) §with supplied. has been The majority, how- ever, interprets notice-tolling in a provision manner logical that bears no relationship with the statute that requires place. Thus, that notice be in the given first adopting interpretation rather than an that “works in scheme,” harmony statutory the entire major- ity adopts interpretation instead an raises an insoluble tolling tension between the provision only notice statute that by years will be resolved litigation, which is the perhaps point whole of the majority’s exercise. clearly
This tension arises form most of MCL 600.2301, majority which the employs sustain its that a conclusion defective notice can toll statute of limitations, because a court can thereby “disregard any error or defect” in the notice. MCL 600.2301 provides: any proceeding
The court in which or pending, action power any process, has to amend pleading proceeding or proceeding, substance, such action or either in form or justice, just, the furtherance of any on such terms as are at judgment every time before court rendered therein. The at stage proceeding any action or disregard shall error proceedings or defect in the which do not affect rights parties. [Emphasis substantial added.] Without to any language reference from the tolling or statutes, the majority that a “good- ascertains Bush Dissenting Opinion by Markman, J. faith attempt the content requirements 5856(c), § of 2912b” tolling allows under ante at any because defect “should be or disregarded cured amendment,” ante at 180. Boodt,
As this Court
explained
Although disagree all respects almost majority’s analysis regarding amended notice- I tolling provision, note in particular the following difficulties this analysis: majority The states it that “cannot assume that language by chosen Legislature is inadvertent” or 484 MICH156 Dissenting Opinion Markman, J. “change nothing at all.” Ante at 169-170.
that a
means
Why exactly
“interpreting]
is
the amended statute
pre-amendment
the same manner
. .. the
statute”
[as]
Ante at 169.
this Court “cannot do”?
something
must
interpreting
The
statute
beginning point
its
v Oakwood Healthcare
always
language.
Wickens
(2001).
53, 60;
Mich
Even after
Sys, 465
NW2d
amendment,
control,
an
the statute must continue to
light
it constitutes
law of this state. In
because
any
amendment must exact
majority’s position
change meaning,
Legisla-
some
what choice does the
if it
ture have
wishes to make minor amendments
clarify a certain
of a statute consistent with the
portion
majority’s
The
interpretation?
position
espe-
Court’s
is
here,
cially
Legislature,
dubious when the
as it did
changes
part
makes minor
to one
of a statute at the
it
major changes
part.9
same time that makes
to another
many
perhaps
it
While
most instances
undoubt-
edly
intent,
amendment,
legislative
enacting
is
an
law,
are,
change existing
undoubtedly,
there
as
other in-
stances, particularly
uncertainty
meaning
if
exists as to the
statute,
adopted
purpose
of a
when amendments are
for the
making plain
legislative
intent
been
what
had
all
major change
made to MCL 600.5856 was the amendment to the
provision
begins tolling
complaint
provision
is
That
when
filed.
repose
“[t]he
[a]t
states that
tolled
now
statutes of limitation or
are
. . .
complaint
filed,
copy
complaint
time
if a
of the summons and
supreme
are served on the defendant within the time set forth in the
600.5856(a). Previously,
court rules.” MCL
the statute of limitations was
“
complaint
copy
[a]t
tolled
the time the
is filed and a
of the summons and
complaint
completely
are served on the defendant.” The amendment also
(c),
previous
tolling
complaint
deleted
subsection
which allowed
when the
“placed in
was filed and
the hands of an officer for immediate service.”
Legislature’s
returning complaint tolling
This reflects the
focus on
Homes,
way previously
Gladych
Family
Inc,
operated,
it
which
v New
594;
(2003),
pre
Mich
(2) The majority creates a new standard for deter- mining 2912b(4) whether a notice complies §with by 484 MICH Opinion Dissenting Markman, J. *34 expertise enough has medical “Adefendant who
stating: has the certainly in or her own defense opine to his as- being the nature of claims to understand ability of defects presence him her even in the against serted subjective This new standard in Ante at 178. the NOI.” only expertise” “medical is on the defendant’s based statute, is inconsistent but it also divorced from in Roberts v Mecosta current standard set forth 701; Remand), (After Co Hosp Gen (2004) (Roberts IT): claimant is re- “[T]he NW2d 711 to the details that are quired provide responsive to . . . and that are as by the statute sought information notice early as is consistent with particularized The original.) stage proceedings.” (Emphasis of the of a standard that thereby clumsily disposes majority statutory all the plaintiff requires plaintiff in favor of one requirements only extent the court to follow the law can fill the expertise” a defendant’s “medical believes ex- noncompliance, all without gaps why even the new standard plaining perfunctorily actually Legis- consistent the law enacted lature, wishes opposed majority as statute had adopted. been
(3)
majority’s
process
plain-
The
amendment
allows
days
giving
his action 182
after
defec-
tiff to commence
2912b(l)
§
the fact that
disallows a
despite
tive notice
given
suit unless he has
plaintiff
commencing
from
words,
In
notice under this section.”
other
“written
2912b(l)
§
to enable a
majority has rewritten
giving
after
defective
days
to commence his suit
“good-faith attempt
if it manifests the plaintiffs
notice
2912b(4).”
I,
at
Ante
178. Cf. Roberts
comply with
fulfill the
(holding
“plaintiff
erts
and Boodt
correctly
were
decided” based on its
*35
interpretation of the
notice-tolling
amended
provision,
34,
ante at
n
175
even
acknowledging
after
that those
cases “relied
language
on
of a statute
longer
that is no
in existence,” ante at 166. The majority’s disagreement
with Boodt seems to be based largely on its misunder-
standing of that decision. Boodt held that a plaintiffs
complaint does not toll the statute of limitations pur-
5856(a)
§
suant to
after defective notice has been given,
2912b(l)
§
because
disallows a plaintiff from commenc-
ing an action unless the plaintiff
given
has
“written
notice under this
Boodt,
section.”
tolling presence was afforded “the notice-tolling provision, and thus ant” to the commenced under action was 2912b(l).” Thus, notice-tolling was § Ante at 170 n 26. Boodt, yet inexplicably the majority never an issue notice-tolling interpretation provi- finds that its I, into As for Roberts question. sion throws Boodt in that majority any possible never errors explains say than to that it rather than “opined,” decision other 5856(d) “held,” § on compliance that “the focus of entirety.” majority Ante at 169. The with 2912b its I validity diminish the of Roberts attempts thus an characterizing simply expression this decision as among many, actually one rather than possible opinion any manner to demon- analyzing law coherent I incorrect.11 why Although strate Roberts majority disagrees makes clear that it with the results Boodt, reached in I and it does not deign Roberts the law does not those results. explain why support By finding regarding 2912b “is silent a defective NOI” and “makes no consequences filing mandatory penalty reference whatsoever to a dismissal defect,” an irrel- majority the event of raises mandatory evant dismissal concerning issue “whether under the intent prejudice 2912b was However, Ante at has Legislature.” 172-173. Court “man- requires never held that a defective notice alone in- datory prejudice.” By phrasing dismissal with its *36 11 pre-amendment I that The Court’s decision Roberts notice- tolling compliant provision required notice with 2912b to toll was justices, currently majority supported by including all seven three in the I, 67; J., question Mich at at 72 who now it. See Roberts 466 id. (Kelly, (“[T]o 600.5856(d) dissenting) begin tolling of the MCL statute limitations, plaintiff fully comply requirements must with the of MCL 600.2912b.”). v Bush 201 Dissenting Opinion by Markman, J. does, majority as it quiry obviously misapprehends procedure by claims were which dis- missed.
First, the majority
interplay
overlooks the
between
statute of
notice-tolling provi-
limitations
two-year
The Legislature clearly
sion.
created a
limita-
actions,
period
malpractice
tions
for medical
and then
clearly stated that an action cannot be commenced after
It
period
has
also
created a
expired.
clearly
tolling
provision that allows the limitations
to be sus-
if a
pended
gives
claimant
to 2912b. If
pursuant
is
given,
not
then
not
If
tolling
triggered.
tolling is not
and the
triggered
statute of limitations
the latter
expires,
operates
the same manner that it
in every
does
other action: it
from being
bars claims
expiration.
commenced after its
Second, even if a defective notice does not toll the
limitations,
statute of
this Court has never held that the
requires
defect
with
“mandatory dismissal
prejudice.”
added).12
Ante at 173 (emphasis
fact,
In
current caselaw
supports the exact opposite proposition, namely that a
plaintiff filing a defective notice
avoid
can
dismissal
prejudice
by simply correcting the notice so that it
2912b(4)
complies
§with
before the statute of limita-
tions has
In
expired.
PC,
v
Mayberry
Orthopedics,
Gen
1, 3;
474 Mich
(2005),
NW2d
this Court held that
sue,
“a second notice of intent
sent with fewer than
days remaining
period,
in the
can ini-
limitations
5856(d)
tolling
tiate
under
as long as the first notice of
Thus,
intent to sue did
initiate
tolling.”
such
under
appropriate remedy
This Court has held that “dismissal is an
noncompliance
provisions.”
City Hosp
with the notice
Burton Reed
(2005).
Corp,
753;
NW2d 424
Whether
dismissal is
prejudice depends
“still
on whether
can
applicable statute of limitations.” Id.
*37
these advantage take of the a second notice to filing from notice-tolling provision. because there were
Here, tolling rather than not in days remaining period, the limitations more than 182 notice, days filed the last 182 of the within it did not toll because was period, limitations defective. in only days had two which to correct Although plaintiff time, defects, had he done so within that the statute the have would have been tolled and he could of limitations 182-day waiting after the timely commenced his action filed, Thus, notice is any time defective period. has the to revise the notice plaintiff always opportunity (4), expiration § 2912b at least until the with limitations, and the defect alone does of the statute of prejudice. not mandate dismissal with to the fact that a for regard provision Without “mandatory prejudice” unnecessary dismissal statute by § 2912b due to the dismissal necessitated limitations, majority proceeds misguided, with its fruitless, Legislature from the search direction requires “mandatory that a defective notice dismissal finds no prejudice.” Unsurprisingly, majority mandate, Legisla- rather concludes that such but rejected “mandatory ture dismissal” based on its provision legis- of a of the initial notice interpretation Ante at 173. Legislature adopted. lation that the never considering Although Legislature “actions statutory language provisions various alternatives language actually on the enacted” settling before history, In re legitimate legislative constitute a form of 5;n Question, 468 Mich 659 NW2d Certified 597 (2003), majority’s exemplifies use of it here well approach. inherent in such To reason- shortcomings rejected language, intent from ably legislative discern Bush v Opinion Dissenting Mabkman, J. whole, as a be considered should rejected provision by only does majority as partially than rather The full the provision. sentence of at the first looking stated: provision subsection, in an provided in this
Except as otherwise *38 the court shall dismiss malpractice, alleging medical action required under section in the notice not included a claim results apply to a claim that does not 2912f. This subsection during gathered information previously unknown from discovery. the unrelated to matter, entirely seems initial this
As an
granted.
dismissal is
under which
limitations
statute of
provision
an unrelated
rejection
Legislature’s
The
a
meaning of
to alter the clear
be used
hardly
can
conclude
reasonable to
far more
statute. It seems
favor
provision
rejected
Legislature
similar treatment
2912b(3),
for
provides
which
Rather
claims.13
undiscovered
matter:
subject
same
rationale
Legislature’s
this to be
considering
than
con-
majority
initial provision,
rejecting
for
the omis-
from
“can draw no conclusion
cludes that it
Legisla-
not the intent of
than it was
sion . . . other
into
penalty
dismissal
mandatory
incorporate
ture to
this same
observers of
at 174. Most other
§ 2912b.” Ante
difficulty
much
be
history would without
legislative
conclusion,”
almost
and would
“another
able to draw
majority. How
reality than the
be far closer to
certainly
concern-
conclusion
majority draw an informed
can the
never enacted
history
provision
from a
legislative
ing
600.2912b(3)
claim not
provides
for a
a shortened notice
identify,
could not
only
plaintiff “did not
if the
in the initial notice
facility to
professional or health
reasonably
a health
have identified
against
filing
complaint
the other
before
notice must be sent”
which
parties.
without that has considering even been actually enacted and substituted the never-enacted provision? majority “[t]o concludes that hold that
§ 2912b in and of itself mandates with preju- dismissal dice . . . would inconsistent with” 2912b’s “stated purpose . . ‘promoting of. settlementAnte at (citation omitted). However, 174-175 majority does how explain allowing a defective notice substitute “ 2912b(4) for the notice required by any way ‘pro- ” at motes] settlement.’ Ante 174. The likelihood of certainly settlement almost increases amount parties information that have regarding the subject of settlement. can the majority’s How interpre- conceivably tation encourage settlement when it com- pels defendants to proceed on the of incomplete basis information?
IV WAITING PERIOD major The second long issue concerns a plaintiff *39 how must giving wait after notice before his filing complaint. statutory relevant provisions state:
(1) Except provided section, as otherwise in this a person alleging shall not an commence action medical malpractice against professional a facility health or health person given unless the has the professional health or facility health written notice under this section not less days than 182 before the action commenced.
(7) days receipt Within after of notice under this section, professional facility against the health or health whom the claim is made shall furnish to the claimant or his representative response or her authorized a written that following: contains a statement of each of the (a) The factual the basis for defense to the claim. Bush v by Opinion Dissenting Makkman, J. (b) the health practice or care that of The standard the applicable facility claims to professional or health facility or health professional the health and that action that standard. complied with (c) by health it is claimed in which The manner compliance facility there was that or health
professional practice or care. applicable standard (d) or professional the health in which The manner negligence of the alleged facility that the contends health proximate facility was not or health professional health damage. injury alleged alleged of the claimant’s cause (8) response the written does not receive If the claimant 154-day required within required under subsection alleging may commence an action period, time the claimant 154-day expiration of the malpractice upon the medical 600.2912b.] period. [MCL notice, Shabahang responded, receiving plaintiffs
After satisfy requirements did not response but his 2912b(7).14 his action then commenced Plaintiff majority I agree notice. giving after days regard- determination make a tentative a can plaintiff pursuant response defendant’s sufficiency of a ing Appeals the Court 2912b(7), agree and I also §to sufficiency challenge did not need plaintiff pur- his filing complaint response before Shabahang’s established waiting period the shortened suant 2912b(8). if he “does days after 154 A can file his suit plaintiff subsec- under response the written not receive (7)” notice. days giving after within tion 600.2912b(8). must response Importantly, (7),” which under subsection “required is that receive “shall furnish” defendant clearly states require satisfy clearly the substantive Shabahang’s response did not unresponsive completely to those 2912b(7), it was because ments *40 at 182-183. requirements. See ante MlCH156 Opinion by Dissenting Markman, J.
response
specific
Thus,
“that contains”
statements.
notice,
a
requirements
plaintiffs
similar
2912b(7)
§
burden
the
places
pro-
the
on
defendant
to
a written response
requisite
vide
includes the
II,
686;
I,
statements. See
Mich at
Roberts
Roberts
Rather than adopting straightforward under- 2912b(8), standing of feels need majority additionally read into the entirely law an concocted gratuitous “good faith” standard determining whether the response is, defendant’s is sufficient. That than assessing rather the defendant’s response, it to the comparing requirements statute, plaintiff must consider now whether defendant’s re- 15 plaintiff peril. A makes such determination at his own If a court later response defective, determines was not then the complaint subject days. to dismissal because did not he wait the full 182 *41 Bush v Dissenting Opinion by J. Markman, to “good-faith attempt comply a sponse constituted at of ...Ante 182. the content the statute requirements law, majority interposes rule of the place In the a clear a plaintiff, standard which who vague by an obscure and than to know what is nothing desires more probably must now the statutorily party, of each assess course, supplies the majority, mindset of defendant. standard, to its new which guidance satisfy no for how because, if a particular plaintiffs, a conundrum for poses in “good a was made response court determines that faith,” that trial court should allow majority the holds the response. to his Ante at 182. This means defendant amend the if relied on assessment that plaintiff that the his own defective, 182-day period the response was filed before retrospec- amendment could expired, had defendant’s however, untimely. Doubtlessly, make tively complaint the later “correct” some majority problem the will disregard- a that is by equally decision new word formula contrast, I would By ful of the of the statute. language may avail of the simply hold that a himself 154-day filing response if the does option defendant’s 2912b(7), without comply requirements has a to the defendant has or not made regard whether provision. faith” “good effort
V CONCLUSION the summary, my majority opinion In concerns with (1) the ignores great language it the are: bulk notice-tolling interpreting provision; provision (2) statutory scheme within which ignores larger it (3) located; creates a it notice-tolling provision must be whereby legislative new “rule” amendments of the amended statute interpreted meaning alter otherwise; suggests if the statute’s clear language even (4) notice’s determining it creates a new standard for 484 Mich by Dissenting Opinion Makkman, J.
sufficiency actual relationship that bears no 2912b(4), in § set forth requirements Legislature in the also no process giving consideration to (5) II; gratuitously standard set forth in it Roberts I and questions validity of Roberts Boodt even though they interpreted different version notice-tolling provision bearing that has no on the (6) case; interpreted instant it has an of one amendment completely meaning statute to alter the of another statute; legislation it allows proposed was never trump meaning enacted to of legislation that was *42 enacted; actually it reads into a words statute are not there faith” concocting “good require- 2912b(7). §in ment
I only dissent and would hold that tolling can be 5856(c) effected pursuant by a plaintiffs notice of complies intent requirements with the 2912b(4). Accordingly, preju- dismissal should with with regard Michigan dice to West Cardiovascular and Health, Spectrum because notice did not toll the statute of limitations those claims and his complaint filed after the limitations had Further, I expired. would hold that days commence an action if giving after response defendant’s not require- does comply (7), ments of 2912b rather than introducing a new “good requirement faith” in assessing such response. Shabahang’s Because did response 2912b(7), §of requirements plaintiff properly com- menced his days action 175 after giving notice.
Corrigan JJ., Young, Markman, concurred with J.