DRAGO KOSTADINOVSKI and BLAGA KOSTADINOVSKI, Plaintiffs-Appellants/Cross-Appellees, v STEVEN D. HARRINGTON, M.D., and ADVANCED CARDIOTHORACIC SURGEONS, PLLC, Defendants-Appellees/Cross-Appellants.
No. 333034
STATE OF MICHIGAN COURT OF APPEALS
October 24, 2017
FOR PUBLICATION 9:05 a.m. Macomb Circuit Court LC No. 2014-002247-NH
Before: BORRELLO, P.J., and MURPHY and RONAYNE KRAUSE, JJ. MURPHY, J.
Plaintiffs Drago Kostadinovski and Blaga Kostadinovski, husband and wife, appeal as of right the trial court‘s order denying their motion to file an amended medical malpractice complaint after the court had earlier granted summary disposition in favor of defendants Steven D. Harrington, M.D. (the doctor), and Advanced Cardiothoracic Surgeons, P.L.L.C., on plaintiffs’ original complaint. Mr. Kostadinovski suffered a stroke during the course of a mitral-valve-repair (MVR) surgery performed by the doctor in December 2011. Plaintiffs timely served defendants with a notice of intent to file a claim (NOI),
I. BACKGROUND
On December 9, 2013, plaintiffs served defendants with the NOI, asserting that on December 14, 2011, the doctor had performed robotic-assisted MVR surgery on Mr. Kostadinovski and that, as subsequently determined, Mr. Kostadinovski suffered a stroke during the course of the procedure. The NOI listed six specific theories with respect to the manner in which the doctor allegedly breached the applicable standard of care relative to the surgery and preparation for the surgery, along with identifying related causation claims.1 On June 4, 2014, an expert for plaintiffs executed an affidavit of merit that listed the same six negligence theories outlined in the NOI in regard to the alleged breaches of the standard of care. On June 5, 2014, plaintiffs filed their medical malpractice complaint against defendants, along with the affidavit of merit, alleging that the doctor breached the standard of care in the six ways identified in the NOI and affidavit of merit. The causation claims were also identical in all three legal documents. In resolving this appeal, it is unnecessary for us to discuss the particular nature of these negligence and causation theories.
On March 21, 2016, defendants filed a motion for summary disposition, arguing that, as revealed during discovery, plaintiffs’ expert witnesses could not validate or support the six negligence theories set forth in the NOI, affidavit of merit, and the complaint. On that same date, March 21, 2016, plaintiffs filed a motion to amend their complaint. Plaintiffs asserted that discovery had recently been completed and that discovery showed that Mr. Kostadinovski “was in a hypotensive state during the operation and was not adequately transfused.” According to plaintiffs, this evidence was previously unknown and only came to light following the deposition of the perfusionist, the continuing deposition of the doctor, and the depositions of plaintiffs’ retained experts. Plaintiffs sought to amend the complaint to allege negligence against the doctor “for failing to adequately monitor Mr. Kostadinovski‘s hypotension during the operation and failing to transfuse the patient so as to maintain the patient‘s blood pressure.” On March 28, 2016, a hearing was held on plaintiffs’ motion to amend the complaint, and the trial court decided to take the matter under advisement. On April 25, 2016, a hearing was conducted on defendants’ motion for summary disposition, at which time plaintiffs agreed to the dismissal of their original complaint, given that their theories of negligence now lacked expert support, as did the causation claims that had been linked to the defunct negligence theories.2 Plaintiffs’ motion to amend the complaint remained pending.
On April 29, 2016, the trial court issued a written opinion and order denying plaintiffs’ motion to amend the complaint. The
The Court finds that plaintiffs’ NOI did not set forth the minimal requirements to provide notice of the claim of breach of the standard of care with regard to the failure to monitor hypotension levels during the operation and the failure to transfuse the patient as a potential cause of injury as required by
MCL 600.2912b . Accordingly, defendants were not given the opportunity to engage in any type of settlement negotiation with regard to the hypotension and transfusion claims because they were not given notice of the existence of any such claims. Even if plaintiffs had included these new allegations in their original complaint, defendants lacked the requisite notice mandated byMCL 600.2912b because they were not raised in the NOI.Plaintiffs’ failure to adhere to the statutory mandates renders the new allegations contained in the proposed amended complaint futile, as these new allegations of medical malpractice must fail as a matter of law. Therefore, plaintiffs’ motion to amend is properly denied. [Citations omitted.]
Plaintiffs appeal as of right.
II. ANALYSIS
A. STANDARDS OF REVIEW
This Court reviews for an abuse of discretion a trial court‘s ruling on a motion for leave to file an amended pleading. Franchino v Franchino, 263 Mich App 172, 189; 687 NW2d 620 (2004). “Thus, we defer to the trial court‘s judgment, and if the trial court‘s decision results in an outcome within the range of principled outcomes, it has not abused its discretion.” Wormsbacher v Phillip R Seaver Title Co, Inc, 284 Mich App 1, 8; 772 NW2d 827 (2009) (citation omitted). “A trial court . . . necessarily abuses its discretion when it makes an error of law.” People v Al-Shara, 311 Mich App 560, 566; 876 NW2d 826 (2015). We review de novo matters of statutory construction, as well as questions of law in general. Wells Fargo Bank, NA v SBC IV REO, LLC, 318 Mich App 72, 89-90; 896 NW2d 821 (2016).
B. AMENDMENT OF PLEADINGS - BASIC PRINCIPLES
A pleading may be amended once as a matter of course if done so within a limited period; otherwise, “a party may amend a pleading only by leave of the court or by written consent of the adverse party.”
With respect to the question whether an amendment of a pleading relates back to the date that the original pleading was filed,
An amendment that adds a claim or a defense relates back to the date of the original pleading if the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth, or attempted to be set forth, in the original pleading. In a medical malpractice action, an amendment of an affidavit of merit or affidavit of meritorious defense relates back to the date of the original filing of the affidavit.
In Doyle v Hutzel Hosp, 241 Mich App 206, 218-219; 615 NW2d 759 (2000), this Court analyzed
When placed in context against a backdrop providing that leave to amend pleadings must be freely granted,
MCR 2.118(A)(2) , the principle to be gleaned from these cases is the necessity for a broadly focused inquiry regarding whether the allegations in the original and amended pleadings stem from the same general “conduct, transaction, or occurrence.” The temporal setting of the allegations is not, in and of itself, the determinative or paramount factor in resolving the propriety of an amendment of the pleadings, and undue focus on temporal differences clouds the requisite broader analysis.
It does not matter whether the proposed amendment introduces new facts, a different cause of action, or a new theory, so long as the amendment springs from the same transactional setting as that pleaded originally. Id. at 215.
C. MEDICAL MALPRACTICE ACTIONS - NOTICE OF INTENT TO FILE A CLAIM
The focus of the trial court‘s ruling and the arguments of the parties concern the NOI and the fact that plaintiffs’ proposed amended complaint set forth a negligence or breach-of-care theory that was not recited in the NOI.
(1) Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.
* * *
(4) The notice given to a health professional or health facility under this section shall contain a statement of at least all of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the claimant.
(c) The manner in which it is claimed that the applicable standard of practice or care was breached by the health professional or health facility.
(d) The alleged action that should have been taken to achieve compliance with the alleged standard of practice or care.
(e) The manner in which it is alleged the breach of the standard of practice or
care was the proximate cause of the injury claimed in the notice. (f) The names of all health professionals and health facilities the claimant is notifying under this section in relation to the claim.
* * *
(6) After the initial notice is given to a health professional or health facility under this section, the tacking or addition of successive 182-day periods is not allowed, irrespective of how many additional notices are subsequently filed for that claim and irrespective of the number of health professionals or health facilities notified.
In Bush, 484 Mich at 174, our Supreme Court noted the legislative intent behind
The stated purpose of § 2912b was to provide a mechanism for promoting settlement without the need for formal litigation, reducing the cost of medical malpractice litigation, and providing compensation for meritorious medical malpractice claims that would otherwise be precluded from recovery because of litigation costs. [Citation, quotation marks, and ellipsis omitted.]
D. DISCUSSION AND HOLDING
Our analysis today entails the question whether the Bush Court‘s application of
The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.
In Gulley-Reaves v Baciewicz, 260 Mich App 478, 479-482; 679 NW2d 98 (2004), the plaintiff served an NOI on the defendants, claiming medical malpractice in the performance of a mediastinoscopy, and the plaintiff later filed a complaint against the defendants, along with two supporting affidavits of merit. The Gulley-Reaves panel summarized the defendants’ response as follows:
Defendants filed a motion for summary disposition challenging plaintiff‘s compliance with the statutory requirements for providing presuit notice of intent to file a medical-malpractice-action. Specifically, defendants asserted that the notice of intent alleged malpractice with respect to the surgical procedure only. Upon the filing of the medical-malpractice complaint, defendants learned that plaintiff was also challenging the administration of the anesthesia during the surgical procedure. The notice of intent allegedly did not comply with the statutory requirements because it did not advise of the claimed wrongdoing with regard to the anesthesia. That is, it did not allege a breach of the standard of care and proximate cause based on anesthesia given during the surgical procedure. [Id. at 482-483.3]
The
injury[,]” and because the NOI “was silent with regard to any breach of the standard of care during the administration of anesthesia.” Id. at 487. This Court held that the trial court erred in denying the defendants’ motion for summary disposition, given that the “[p]laintiff failed to provide notice of the claim of breach of the standard of care with regard to the administration of anesthesia as required by” the NOI statute. Id. at 490. The opinion did not include any discussion whatsoever of
In Bush, a case involving claims of medical malpractice arising out of surgery to repair an aortic aneurysm, the NOI, amongst other alleged defects, purportedly failed to identify the particular actions taken by physician assistants and the nursing staff that breached the standard of care, failed to state how the hiring and training practices of one of the defendants breached the standard of care, and failed to set forth some necessary theories of causation. Bush, 484 Mich at 161-162, 179-180. The Bush Court rejected the proposition that mandatory dismissal of a medical malpractice action is the sole remedy for a defective NOI or violation of
We agree with the Court of Appeals that these omissions do constitute defects in the NOI. However, we disagree with the Court of Appeals regarding the appropriate remedy. We are not persuaded that the defects . . . warrant dismissal of a claim. These types of defects fall squarely within the ambit of § 2301 and should be disregarded or cured by amendment. It would not be in the furtherance of justice to dismiss a claim where the plaintiff has made a good-faith attempt to comply with the content requirement of § 2912b. A dismissal would only be warranted if the party fails to make a good-faith attempt to comply with the content requirements. Accordingly, we hold that the alleged defects can be cured pursuant to § 2301 because the substantial rights of the parties are not affected, and “disregard” or “amendment” of the defect is in the furtherance of justice when a party has made a good-faith attempt to comply with the content provisions of § 2912b. [Id. at 180-181.]
After Bush was decided, this Court issued an opinion in Decker v Rochowiak, 287 Mich App 666; 791 NW2d 507 (2010). In Decker, the plaintiff, by his next friend, filed a medical malpractice action that was predicated on an alleged failure to properly monitor the plaintiff‘s glucose level; the plaintiff was diagnosed “with cerebral palsy from an early anoxic (lack of oxygen) brain injury.” Id. at 670-671. After serving his NOI on the defendants and filing his complaint with supporting affidavits of merit, the plaintiff sought leave to file an amended complaint in order to allege 17 specific ways in which the defendants breached the applicable standards of care. Id. at 671. This Court summarized the plaintiff‘s argument in favor of allowing the amended complaint:
Plaintiff argued that the amendment was proper because (1) discovery remained open and experts had not been deposed, (2) the amendment merely clarified allegations and issues and was
made possible after particular information was learned through the discovery process, (3) the clarifications ultimately relate back to the underlying lynch pin of this entire case which is that they did not appropriately monitor and maintain this baby‘s glucose level, and (4) defendants
would not be prejudiced by the amendment. [Id. (quotation marks and alteration brackets omitted).]
The trial court granted the request to file an amended complaint and subsequently denied various motions for summary disposition filed by the defendants, with this Court granting and consolidating multiple applications for leave to appeal pursued by the defendants. Id. at 671-674.
The defendants in Decker argued that the plaintiff‘s amended complaint had asserted new theories of medical malpractice that were not contained in the NOI; therefore, amendment of the complaint should not have been allowed or the amended complaint should have been summarily dismissed pursuant to Gulley-Reaves. Decker, 287 Mich App at 679-682. The Decker panel found that the plaintiff, while providing some details and clarification, had not actually alleged any new negligence or causation claims in the amended complaint that were not already encompassed by the claims in the NOI, so the purpose of the notice requirement was realized. Id. at 677-682. The Court observed that “[t]his is not a case where, as in Gulley-Reaves, the plaintiff set forth a totally new and different potential cause of injury in an amended complaint compared to the potential cause of injury set forth in her NOI, e.g., the manner in which a particular surgical procedure was performed compared to the manner in which anesthesia was administered during the surgery.” Id. at 680-681. This statement by the Decker panel might lead one to believe at first glance that, when a totally new breach-of-care or causation theory actually is pursued, as in the instant case, summary dismissal or disallowance of an amended complaint would be appropriate.
We conclude that Bush controls our analysis. If
Assuming that Gulley-Reaves supports defendants’ position here, it was issued prior to Bush and the Court did not entertain an argument under
speculate whether it would have applied the Bush § 2301 analysis had it determined that new claims were being raised or whether it would have applied the Gulley-Reaves opinion and dismissed the case.5 Ultimately, Decker did not address the impact of Bush and
We do find it necessary to address Driver v Naini, 490 Mich 239, 243; 802 NW2d 311 (2011), wherein our Supreme Court held “that a plaintiff is not entitled to amend an original NOI to add nonparty defendants so that the amended NOI relates back to the original filing for purposes of tolling the statute of limitations[.]” (Emphasis added.) The Driver Court rejected the plaintiff‘s argument that he should be allowed to amend his original NOI pursuant to Bush and
Bush is inapplicable to the present circumstances. At the outset we note that the holding in Bush that a defective yet timely NOI could toll the statute of limitations simply does not apply here because CCA [nonparty defendant] never received a timely, albeit defective, NOI. More importantly, and contrary to the dissent‘s analysis, the facts at issue do not trigger application of
MCL 600.2301 . . .* * *
By its plain language,
MCL 600.2301 only applies to actions or proceedings that are pending. Here, plaintiff failed to commence an action against CCA before the six-month discovery period expired, and his claim was therefore barred by the statute of limitations. An action is not pending if it cannot be commenced. In Bush, however, this Court explained that an NOI is part of a medical malpractice proceeding. The Court explained that, since an NOI must be given before a medical malpractice claim can be filed, the service of an NOI is a part of a medical malpractice proceeding. As a result,MCL 600.2301 applies to
the NOI process. Although plaintiff gave CCA an NOI, he could not file a medical malpractice claim against CCA because the six-month discovery period had already expired. Service of the NOI on CCA could not, then, have been part of any proceeding against CCA because plaintiff‘s claim was already time-barred when he sent the NOI. A proceeding cannot be pending if it was time-barred at the outset. Therefore,
MCL 600.2301 is inapplicable because there was no action or proceeding pending against CCA in this case. [Driver, 490 Mich at 253-254 (citations, quotation marks, alteration brackets, and emphasis omitted.]
The Driver Court later emphasized that the Bush opinion concerned “the content requirements of
In the instant case, the NOI was timely served on defendants, as was the complaint, an amended NOI would not entail adding a new party, and we, like the Bush Court, are concerned with the content requirements of
For purposes of guidance on remand, we provide the following direction. The trial court is to engage in an analysis under
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction. Having fully prevailed on appeal, plaintiffs are awarded taxable costs under
/s/ William B. Murphy
/s/ Stephen L. Borrello
/s/ Amy Ronayne Krause