Potter v. McLeary

v McLEARY POTTER 7). (Calendar July 4, 2009 Decided No. Argued March No. 136336. Docket 31, 2009. the Washtenaw brought action in a medical Brian Potter M.D., McLeary, The and others. C. Richard Court Circuit PC., Radiology, Valley Huron of intent to sue plaintiff sent a notice statutory period M.D., days Murry, eight Kristyn before H. separate of intent to St. expired, a notice and sent limitations of Physicians Arbor, Emergency Medical Hospital Mercy Ann Joseph period Domeier, D.O., days of before the PC., Group, Robert However, of merit expired. the affidavits limitations statutorily complaint did not contain plaintiff his filed with conforming cause, affi- proximate and no required statement on expired. period The the limitations before davits were submitted J., for Shelton, motions court, the defendants’ E. denied Donald appealed. The of Court summary disposition, and the defendants Appeals, appeals. The of Appeals Court consolidated Wilder, reversed, concluding (Davis, J., dissenting), PJ., J. and Zahra, preju- dismissed with complaint should have been complaint did to the of merit attached the affidavits dice because App requirements MCL 600.2912d. not conform to the appeal, (2007). Court, granting leave to Supreme in lieu of The judgment Appeals that stated portion of the Court reversed the specified prejudice, complaint be dismissed with should prejudice, and remanded be without that the dismissal should remaining Appeals of the for consideration matter to the Court remand, the same Court of On Mich 915 issues. 480 unanimously of merit panel that an affidavit Appeals held running valid, of the limita- tolls the presumptively and therefore successfully complaint, it until period filed with the tions when remedy proceeding. proper challenged judicial affording prejudice, challenge is dismissal without successful period to file of limitations remains in the plaintiff time whatever Specifically, the conforming of merit. complaint affidavits with Murry sent to Dr. Appeals the notice of intent held that Court of claim and put of the nature her on notice was sufficient allegedly breached the manner in which she properly set forth the to avoid have taken actions she should of care and what standard 484 Mich 397 properly the breach. The further that the Court held trial court summary disposition denied on the basis of the notices of intent to except ValleyRadiology, respect all the defendants Huron summary disposition granted which should have been without prejudice cure the allow intent stating specific applicable Valley the standard of care to Huron (2008). Radiology. App Supreme granted Court appeal, application the for leave to limited to the issue Valley Radiology facility agency a whether Huron is health to 600.2912b(l). plaintiff provide a which must notice under MCL (2008). application Mich The defendants’ for leave to abeyance appeal pending was held in on the decision the first (2008). application. argument, 756 NW2d 85 After oral the Su- preme parties supplemental Court the directed to submit briefs whether, addressing Valley Radiology if notice to Huron was not required, statute of limitations was nonetheless 600.5856(d). subject statutory tolling under former MCL Mich 922 Kelly opinionby joined by In an Hathaway, Justice ChiefJustice Supreme and Justices CAVANAGH Weaver, Court held'. plaintiff provide timely A profes- must a notice a of intent to corporation commencing malpractice sional before a medical ac- against professional corporation tion when the claims are liability on based vicarious for the actions of a licensed health care provider rendering professional who is services. The notice of fully compliant plain language intent filed in this case with the 600.2912b(4), require legal of MCL which does not relationships parties only between the be identified. If the claim professional against corporation asserted a is on based vicarious liability, require MCL 600.2912b does not a to set forth legal liability doctrine vicarious the notice of intent. In 450.225, light professional corporation only of MCL a can render professional through provider. services licensed health its care professional corpora- Where the notice intent names both the provider, fully compliant tion and the the notice intent if it necessary forth all sets the factual and medical information professional corporation inform the of the nature of the claim being against physician-provider. plain- asserted Because the requirements, tiffs of intent meets these dismissal warranted. corporations 1. Professional are created the Professional Corporations Act, provides seq., Service MCL 450.221 et which professional corporation, separate legal entity awhile does professional own; only not render services on its it can render professional through employees agents services its who are Accordingly, services. legally to render those authorized licensed or rendering professional services involv- corporation professional as the provider are treated care ing and the health health care entity. same corpo- professional against a a claim 2. To determine whether ordinary negli- malpractice than rather in medical ration sounds first, must occur the claim two-pronged must be met: gence, a test and, second, claim relationship professional the course of a judgment realm of outside the pose questions medical must Further, only experience. those health knowledge and common designated MCL 600.5838a within providers and facilities care malpractice. of MCL 600.5838a may The amendment he sued legislative corporations evinces a clear professional include among corporations the entities professional intent to include may malpractice asserted. action be which a bring claim a medical intent 3. A notice of statutorily required to liability alleging only is not vicarious liability theory or to legal of vicarious specifically set forth relationship employment defendant’s a statement of the include gave the suit. professional actions rise to health whose with the professional corporation render can Because providers, through licensed health care care its health services purpose effectively for the of vicarious parties the same actor are therefore, to claims; need for a claimant liability there is no of intent for both in the notice the same information include parties. concurring, separately address to wrote Chief Justice Kelly, majority’s regarding lack of the comments Justice Markman’s why explain the respect decisis and to the doctrine of stare ignoring precedent incorrect. is that the Court has been accusation appeal abeyance in holding application for leave to Order denied, Appeals appeal vacated, application of for leave to Court reversed, proceedings. judgment for further and case remanded dissenting part, concurring part in and in Justice Corrigan, majority Appeals the agreed of that the and the Court with Murry. She dissented sufficient as to plaintiffs notice of intent was Valley Radiology was majority’s holding Huron from the joined part I with and a intent. She concurred entitled to notice of Radiology Valley opinion, agreeing that Huron Young’s of Justice facility to a health entitled nor is neither a health Valley Radiology Huron Because notice under MCL 600.2912b. intent, plaintiff was not entitled a notice of the was not entitled to III(C) part of Justice tolling. stated in She the concerns shared Young’s regarding conclusion opinion Justice Markman’s 484 Mich 397 defendant, if a intent notice of is sufficient as to one the agreed of is statute limitations tolled as to all defendants. She with plaintiffs complaint Justice Markman’s result that the was un- timely accordingly against filed hold and would that the action Valley Radiology Huron was the barred statute of limitations. III(D) part opinion also with She concurred of Justice Markman’s concerning plaintiff retroactively a whether can the amend notice majority’s holding intent. of She dissented from the that the plaintiffs Valley of intent notice was sufficient as to Huron Radiology sufficiency and would reach the of the notice issue at III(E) part all for the set forth reasons in of Justice Markman’s partial dissent, fully and concurrence with which she concurred joined. Young, concurring part dissenting part, Justice in in holding majority opinion concurred in the that Huron ValleyRadiology not is entitled to dismissal. He from dissented majority’s holding plaintiff profes- that a is a to serve 333.20106(1) corporation not sional enumerated MCL with a notice of intent commence a action under 600.2912b, entity because such an is a neither “health professional” facility” nor a “health under MCL 600.2912b. He additionally would hold that the of on the statute limitations claim Valley Radiology pursuant Huron tolled was to MCL 600.5856(d) plaintiff provided because the notice intent in compliance with the MCL 600.2912b for a claim would have during period. been barred notice He dissented from majority’s analysis regarding plaintiffs whether notice of requires plaintiff intent was deficient because MCL 600.2912b provide which, claim, a statement of the factual for the basis if the liability, alleging claim one vicarious must include statement regarding principal-agent relationship on the claim which based. Because the did not include a statement of the relationship Valley Radiology of Huron to the other individual defendants, plaintiffs intent notice of was defective. part concurring dissenting Justice part, Markman, agreed majority Valley Radiology with the that Huron was intent, portion entitled to a and would affirm Appeals opinion plaintiffs Court that held that the notice of regard Murry. intent sufficient He also would affirm portion Appeals of the Court of that held that the Valley regard Radiology notice was insufficient with to Huron did because notice not contain a statement of the practice alleged regard standard of or care the claimant with entity, including an indication whether the v 600.2912b(4)(b) liability, alleging and direct or vicarious as MCL Remand), Hosp (After Mich 679 Co Gen Roberts Mecosta 600.5856(d) (2004), Roberts require. In accordance with MCL and (2002), Hosp, 466 he would reverse the v Mecosta Co Gen Mich 57 Appeals opinion portion of that held that the defective the Court of and dismiss tolled the statute of limitations would intent Valley Radiology prejudice. The against with the action Huron necessary majority conclusion no dismissal is reached its it, addressing violating properly before this case issues not rules, relying on dubious distinctions to avoid Court’s own internal statutory provi- completely rewriting precedent, the relevant sions. — — — Malpractice Intent to Pile a Claim Notice of

1. Actions Medical Corporations. Professional rendering professional professional corporation health care ser- A entity provider treated as the vices and the health care are same bring providing a a claim for purpose notice of intent 600.2912b). (MCL seq., malpractice medical 450.221 et — — Corporations. Malpractice 2. Actions Medical Professional professional corporation mal- A claim sounds medical ordinary negligence practice if the claim occurs when rather than through professional corporation rendering li- services officer, employee, agent or as set forth censed authorized 450.225, judg- poses questions of and if the claim medical knowledge experience. ment outside the realm common Agencies — — — Malpractice 3. Actions Medical Health Facilities Health Professionals. Care Only providers designated those care and facilities in the health statutory malprac- provision that the accrual of addresses medical (MCL 600.5838a). may malpractice tice be sued for medical claims — — — Malpractice 4. Actions Medical Intent to Pile a Notice of Claim Liability. Vicarious bring alleges claim that A notice of intent to liability legal specifically set need not forth vicarious theory liability or the defen- of vicarious include a statement of employment relationship dant’s health (MCL 600.2912b). gave whose rise to the actions suit Granzotto, Granzotto), J. (by Mark P.C. Mark Brian Martin Bartnick for Potter. 484 Mich 397 Opinion of the Court Associates,

Chapman (by P.C. Ronald W. Chap Radiology, Richtarcik), Valley man and Brian K. for Huron ., Kristyn Murry, M.D. P.C Amicus Curiae: Corbet, Shaw, Essad,

Tanoury, Nauts & (by P.L.L.C. Garbarino) M. Linda for Cardiovascular Clinical Asso ciates, EC.

HATHAWAY, At J. issue before Court proper is the interpretation statutory provision a requiring (NOI) of intent malpractice to sue in medical actions.1 This profes- case raises issue whether a (EC) corporation sional must be provided an NOI before commencement of the medical action. It also raises issue of what be statements must set in an satisfy forth NOI to of MCL requirements 600.2912b(4) when claim made being against the EC on solely based a EC’s liability vicarious for its physician. hold,

We on the basis the plain language of the statutes, alleged relevant that when claims against EC predicated liability are on its vicarious for a licensed health care provider rendering professional services, an provided. NOI must be provision, The NOI MCL 600.2912b, clearly states that a plaintiff provide must all professionals health and health facilities an NOI before commencing a medical malpractice action. 600.5838a delineates those health care providers and against facilities which claims of medical malpractice may be asserted.2 Claims asserted against providers and facilities not delineated in 5838a sound in ordinary

1 MCL 600.2912b. Corp, Kumar v Raksha 177; 750 NW2d 121 Opinion the Court to PCs refers specifically § 5838a Because negligence.3 PC sounds against a section, a claim definitional in its asserted the claim only when but malpractice, services rendering professional PC is for against circumstances, a Under these 450.225. in MCL defined Huron The claim an NOI.4 provided PC must be liability on vicarious PC., is one based Radiology, Valley health care of its licensed services Potter was hence, Brian provider-employee; action is one NOI as the timely provide malpractice. in medical sounding case was filed in this

Moreover, that the NOI we hold 2912b(4), §of language the plain fully compliant First, require- there is no its contents. governs which 2912b(4) relationships legal to set forth §in ment rather, plain language parties; named between 2912b(4)(f) to be naming party each only requires against only claim asserted where the Secondly, sued. hence no other liability, and for vicarious PC is one PC, there against asserted being of care is standard mandates that § 2912b that within requirement is no claimant liabil- doctrine of vicarious legal set forth the in the NOI. ity one for vicarious in this case was

The claim at issue 450.225, PC can only. light In liability health its licensed through services render the PC and names both Where NOI provider. care it long as as sets fully compliant the NOI provider, necessary medical information factual and forth all the 172. See id. at against a involves the actions of Conversely, PC when a claim asserted rendering professional employee agent unlicensed or not who is an 450.225, requirement he the NOI would in as delineated MCL services ordinary negligence unnecessary, sound because such a claim would malpractice. than medical rather Opinion of the Court

to inform of the being the PC the nature claim asserted Because physician-provider. NOI met requirements, fully compliant these it was there is no need to dismiss this on the action basis of the NOI. We of Appeals judg- therefore reverse the Court ment and remand case to the trial court for further proceedings consistent with this opinion.

I. AND FACTS PROCEDURAL HISTORY This is a action an involving alleged misreading of an byMRI H. Kristyn Murry, M.D., on June 2001. This misreading allegedly caused a in a needed delay emergency surgical proce- dure on plaintiffs spine. This delay perma- resulted nent damage nerve his spine impairs ability function, including causing difficulty with such things walking and urinating. At the time of the alleged malpractice, Murry employed by Huron Valley Radiology. procedural history of this is complicated case

lengthy. This case has been pending our appellate system years for over four as the courts have conducted an exhaustive review content Potter’s affidavit of merit and NOI. Appeals his The Court of has issued two opinions, reviewing and we are this case for the second time.5 The most recent of Appeals Court opinion summarized long journey through our appellate system and the reasoning rulings: behind the appeals,

In these appealed consolidated defendants granted leave orders in this medical action denying summary disposition their pursuant motions 2.116(C)(7). Previously, MCR majority of this Court 5 McLeary, (2008); Potter McLeary, v 482 Mich 1004 v Potter 480 Mich (2007); McLeary, 279; (2008); App 915 Potter v 278 Mich 748 NW2d 599 (2007). McLeary, App 222; Potter v 600 NW2d V MüLEARY POTTER Opinion the Court of dis- complaint should be reversed, holding plaintiffs of affidavits the attached prejudice because missed with of MCL requirements to the conform did not merit 222; App 732 NW2d McLeary, Mich 600.2912d. Supreme appeal, our granting leave In lieu of “dis- judgment this Court’s portion of reversed the Court the dis- prejudice, because complaint with missing the See prejudice ....” without have been missal should (2007) Supreme original). Our (emphasis in Mich 915 of the for consideration this Court remanded to Court now affirm previously. We remaining not addressed issues remand. part, and part, reverse malprac- alleged opinion, the previous noted in our As 7, period of limitations place on June 2001. took tice years from the date two malpractice cases is 600.5805(6). Presuming notice of MCL claim accrued. limita- sufficient, running period intent was days from the date for 182 have been tolled tions would 600.2912b(l). intent was sent A notice of the notice. Kristyn EC., H. Valley Radiology, Huron to defendants days 30, 2003, leaving eight remain- M.D., May Murry, on A notice of expired. period of limitations ing before Mercy Hospital Joseph St. to defendants intent was sent D.O., Emergency Physi- Domeier, Arbor, Robert Ann days 13, 2003, leaving 25 EC., May Group, on Medical cians notices tolled expired. The period of limitations before the periods, which recommenced running limitations 13, 2003, respec- 30, 2003, on November on November 2003, 8, period expired on December tively. The limitations No- complaint was filed on Plaintiffs defendants. for all 4, 2003. vember prior decision dispute in our

There was no serious they fatally defective because of merit were the affidavits alleged related physicians’ failures how the failed to state they contain the injuries, did not alleged so See MCL proximate cause. statement filed conforming of merit were affidavits No 600.2912d. previously majority of this Court 2003. A December filed an affida therefore not plaintiff had determined that Health all, v Munson pursuant to Geralds of merit at vit 406 484 Mich 397 Opinion of the Court care, 240; App (2003), 259 673 792 Mich NW2d 566, 574; Goldberg, App Mouradian v Mich 664 NW2d (2003), plaintiffs complaint so should be dismissed prejudice. with This Court therefore it deemed unneces sary challenges to address defendants’ to notices of intent. previous decision, Supreme

After this Court’s our Court having overruled misapplied Geralds Mouradian as Pollak, 547, 553; the case of Scarsella v 461 Mich (2000). Rim, 581, 583-584; v Kirkaldy NW2d 711 Supreme explained 734 NW2d 201 Our that Court medical-malpractice Scarsella had held that “a com plaint filed without an affidavit of merit” was ineffective running and would toll the of limitations period. (emphasis original). Id. in It at further ex plained wrongly that Geralds and Mouradian had extended medical-malpractice holding complaints that were actually merit, filed with but affidavits where those requirements affidavits of merit failed to conform to the Kirkaldy, supra Supreme 600.2912d. at Our 584-585. Court presumptively concluded an affidavit of merit is valid—and therefore the running tolls of a limitations period complaint successfully when filed with a —until challenged judicial “Thus, proceeding. in a Id. at 585-586. if deficient, defendant believes that an affidavit challenge affidavit,” proper must and the remedy challenge for a successful is dismissal without prejudice, affording “whatever time remains period complaint limitations” file a awith conforming 586. affidavit. Id. at Supreme

Our partial Court’s reversal this case Kirkaldy. based on its decision in applied As to the case bar, plaintiffs complaint, merit, filed with the affidavits running period. tolled the of the limitations we Because conclude those affidavits of merit did not conform requirements 600.2912b, proper remedy of MCL plaintiffs complaint for the trial court dismiss without prejudice. may complaint file Plaintiff then a new conforming remaining affidavits of merit within the time period. the limitations Opinion Court previously, we must declined to do so

Because we Valley Radiology’s Murry’s Huron defendants address to sufficiency the notices of intent sent challenges to the of Radiology argue that Murry Valley first and Huron them. properly the standard does not state the notice 600.2912b(4)(b). We required as practice or care of of notice paragraph The agree, part. in second of care: following the standard sets forth Murry required standard of care Drs. “The and/or correctly McLeary [Gary] Augustyn C.] to [Richard and/or read, to the emer- interpret report and the correct results Notwithstanding gency room under the circumstances. care, Murry Augustyn of standard Drs. that and/or and/or interpret images and properly to the MRI failed phy- convey emergency to the room accurate information charge night.” patient of that sician the any completely fails to make The standard care Valley Radiology. Our to defendant Huron reference plaintiff obli explained has is not Supreme Court care, completely correct gated provide to standard good-faith aver “plaintiff to make but the particularized standard each of of some ment Rob named the notices.” professionals facilities Remand), (After Mich Hosp Co erts v Mecosta Gen (2004) (emphasis original). 679, 694; 684 NW2d 711 alleged tautology here is more than the The standard Roberts, adequate regard it with rejected in we find Murry. specific stan Plaintiff articulated a to defendant Murry correctly read, interpret, and must dard the specific MRI test. This is to report the results of the from plaintiff received requirements of service Murry on put Murry. It was sufficient defendant claim, failure to of the nature of the which was notice Therefore, identify plaintiff’s injury. report properly 600.2912b(4)(b) requirements with of MCL it met the Murry. However, satisfy all regard to cannot regard statutory requirements Valley Radiology. Huron Mich Opinion of the Court challenges

Because other the notices of are no intent raised, Therefore, we will consider them further. properly summary disposition court trial denied on basis of the notices of intent to all than defendants other Valley Radiology. regard Valley Huron With to Huron Radiology, Supreme we believe that our Court’s treatment should, actually of deficient—but filed—affidavits of merit by analogy, applied again actually be to deficient—but intent, Kirkaldy, supra filed—notices of as well. See 586. presumed Notices intent are proper, be valid and so they support filing complaint of a after the notice run, period successfully has until unless and the notice is challenged. remedy applied to be if a notice is success- fully challenged is prejudice, affording dismissal without opportunity deficiency to cure the within remaining time period within the limitations there- tofore tolled the now-invalidated notice or the subse- quent filing the complaint. summary

We hold disposition as follows: granted is prejudice ValleyRadiology without to Huron on the of basis intent, summary the notice disposition of is to all denied intent, other defendants on the of basis the notices of summary disposition granted prejudice is without to all the defendants on basis the of affidavits of The merit. applicable periods entry limitations remain tolled until of grants summary disposition. the of remand We for further proceedings opinion.[6] consistent with this 20, 2008, On March an plaintiff filed application for to appeal leave this asking grant Court to leave to consider whether his complied NOI with the content requirements 1, 2008, of On 2912b. October granted leave; however, Court the issue was limited to the threshold question of whether it was necessary to provide an to a NOI PC. That order provided: Court,

On application order of the the appeal for leave to 20, 2008, judgment the March Appeals the Court of is 6 Potter, App at 281-286. Opinion Court of the and, to the issue whether granted, it is limited

considered EC., facility Radiology, is “health Valley defendant Huron required notice provide is agency” to which 333.20106(1).[7] 600.2912b(l). See MCL MCL under order, the addressed parties grant the limited Despite in it defective of the NOI and whether the content advancing argument while briefing and in oral their oral the argument, After positions.8 respective their parties by asking order grant expanded Court of the additional issue on the file briefs supplemental limitations: of the statute of tolling 4,2009, heard on March argument having been Oral supplemental briefs address parties directed to submit are corpora whether, defendant ing the issue if a to be entity an to whom is not tion 600.2912b, statute provided under MCL limitations, 600.5805(6), subject was nonetheless MCL 600.5856(d).[9] tolling provided statutory in former holding that As resolved the threshold issue we have Valley Radiology, Huron NOI to provide Potter must an underlying of whether also issue we must resolve analysis to conclude the is defective in order this NOI it has take note the fact that particular this case. We 7 Potter, Mich at 1004. sufficiency Valley Radiology Huron addressed the Defendant extensively appeal. forth on This brief sets NOI issue its brief presented sufficiency questions to decide. for us issue one of and articulates forth the entire content the NOI brief also sets cases The brief cites statutes and the NOI defective. view Moreover, relief, position. prayer asks support in its for its plaintiffs application leave remaining us issues to decide application remaining questions appeal. One of the two Further, plaintiff appeal for is whether the NOI was defective. leave to argument. The briefs sufficiently at oral addressed this issue argument transcript can be viewed and oral <http://www.courts.michigan.gov/supremecourt/Clerk/03-09/136336/ 136336-Index.html>. 9 (2009). Murry, v 483 Mich 922

410 484 397 MICH Opinion of the Court been eight years over since the malpractice occurred and six nearly years subject since the was NOI mailed to Further, defendants. it has years been over since 5x/2 filed, complaint years was with the last having four been appeal devoted issues relating to the affidavit of merit and the NOI. The parties are still waiting to have a court address merits of the case. Given briefing that we have had all argument on issues, can necessary we decide in opinion this both whether the must provide a PC an NOI before commencing an action as well as whether the subject NOI compliant 2912b.

II. STANDARD OF REVIEW presented The issues are issues of statutory interpre tation. Statutory interpretation law, is a question of which Court reviews de novo.10 This Court also reviews de novo a trial court’s regarding decision 11 motion summary disposition.

III. ANALYSIS Interpretation of the NOI provision presents ques tions of statutory construction. Assuming that Legislature has acted within its constitutional author ity, the purpose of statutory construction is to discern give effect to the intent of the In Legislature.12 determining the Legislature, intent of the this Court must first look to the language the statute.13 The must, Court first foremost, interpret the language Investigation In re Lansing, March 1999 Riots East 463 Mich (2000). 383; 617 NW2d 310 Bay City, (2000). Herald Co 111, 117; 463 Mich 614 NW2d 873 Ward, Valley Sun Foods Co v 230, 236; NW2d 13 Id. 411 v Opinion the Court is consistent with manner in a of a statute “ effect far as possible, ‘As intent of Legislature.14 in the clause, and word every phrase, given should be and must be read language statutory The statute. context, it is clear unless grammatical in understood its ”15 Moreover, was intended.’ something different the statute interpretation, the correct considering when and words a Individual read as must be whole.16 read in the context should be important, phrases, while defining particular In legislative the entire scheme.17 plain consider both the statutes, in must words we its as well as phrase of the critical word meaning A statutory in the purpose placement scheme.18 conjunction with other relevant must be read statute correctly intent is legislative that the statutes to ensure be Finally, interpreted the statute must ascertained.19 in harmony that it works a manner that ensures statutory scheme.20 the entire BY OF SERVICES PROVIDED

A. THE NATURE A PROFESSIONAL CORPORATION provide must address whether Before we PC, necessary legal to review the to a it is an NOI understand the nature of of a PC and structure corporation professional Since provides. services it creature, to the Professional Service statutory we look 14 Id. at 135. 15 Co, (2008), 352, 366; 579 Herman v Berrien 481 Mich 750 NW2d Valley, supra Sun

quoting at 237. 16 Valley, supra at 237. Sun 17 Herman, supra at 366. States, 137, 145; 501; Id., Bailey 116 S Ct United quoting 516 US (1995). 133 L Ed 2d 472 General, 227, 233; Wayne Co v Auditor 229 NW Id. at 234. 484 Mich 397 op Opinion the Court Act, guidance. MCL 450.221 et

Corporation seq., provision act provides, pertinent relevant of that part: incorporated corporation organized

A under this act professional render shall not services within this state except through officers, employees, agents its who are duly legally licensed otherwise authorized render the employee services within this state. The term secretaries, technicians, bookkeepers, does include not and usually ordinarily other who not assistants are consid- professional ered custom practice rendering to be public to the legal services for which a other license or required. (emphasis [MCL authorization is 450.225 added).] provision PC, This clear that a while sepa- makes a entity, rate legal professional does not render services own; rather, on only professional its it can render through services employees agents its or who are li- legally censed professional authorized to render the services. This language legislative stands as a recogni- tion when a professional services, PC renders it is inexorably linked to the licensed health care provider. For all practical the PC and purposes, the health care provider are treated as the same entity profes- when sional services are Moreover, involved.21 PC can per- a types form other of services or take other actions through unlicensed employees agents, but such ac- tions would not professional constitute services under This of types act. delineation empha- services is sized sentence, not the first it is reasserted in 450.225, second sentence of MCL which states that employee secretaries, “[t]he term does not include technicians, and bookkeepers, other who assistants are usually and ordinarily considered custom and (ED Golds, Mich, 1973), Supp See Peters 366 F which held that person purposes as a PC is treated of 5838a. POTTER V MCLEARY

Opinion op the Court public to the rendering services professional to be practice is re- authorization legal a license or other for which types in two different Thus, engage a PC can quired.” and those that services those that are actions: for either of vicariously hable not. the PC is are While 450.226,22 this of actions types pursuant these whether determining pertinent distinction cause apply particular statutes malpractice of action. THE NOI REQUIREMENT CORPORATIONS AND

B. PROFESSIONAL We now examine whether a medical commencing a PC before an NOI to

provide examining analysis by start our action. We itself. Section 2912b the NOI language provision part: states relevant

22 MCL 450.226 provides: interpreted to

Nothing in this act shall be contained abolish, modify, limit the law now in repeal, restrict or professional relation- in this to the effect state furnishing person ship liabilities between the receiving pro- person such professional services and the professional for and to the standards fessional service shareholder, Any officer, agent employee of a or conduct. per- corporation organized under this act shall remain any negligent sonally fully accountable for and liable and him, by wrongful by committed or or acts or misconduct control, supervision and any person under his direct rendering professional service on behalf while person professional such corporation to the for whom being corporation shall be rendered. The services were any negligent up property of its liable to the full value any of its wrongful or misconduct committed or acts they officers, shareholders, employees agents or while rendering corporation in the engaged behalf of the are on professional services. Opinion of the Court (1) section, provided Except otherwise in this person alleging an shall not commence action medical against professional facility malpractice a health or health person given professional unless the has the health facility under not health written notice this section less days [Empha- than 182 before the action is commenced. added.] sis first

The sentence in section critical provides guidance. The statute expressly requirement limits the alleging of an NOI to an action malpractice: medical person “[A] shall not commence an action alleging Thus, medical malpractice. step . . .” the first in the analysis is to determine whether the action sounds malpractice ordinary medical negligence. Only those sounding actions in medical are malpractice governed by the mandates of this statute. recently

This Court reiterated method which ordinary claims of medical malpractice negligence Kuznar, distinguished. are In this Court was asked to determine whether a claim a pharmacy for the actions its non-licensed technicians in medi- sounded cal or in malpractice ordinary negligence. In holding that the claims negligence, Kuznar ordinary sounded in reiterated the longstanding rule that claims sound in when a two-pronged test is First, met. the claim must occur in the course of a and, second, claim relationship must pose realm questions judgment of medical outside knowledge experience. common prong If either met, in ordinary action sounds negligence rather than medical malpractice.23 regard With to Kuznar stated: prong, first dispute prong There is no that the second of the Kuznar test has been indisputably presents questions met in this case. claim of medical

judgment knowledge experience. outside realm of common Opinion op the Court entity person an relationship exists if a or professional A subject to a malpractice was committing medical capable of health-care ser- duty to render contractual law, only physi- Under the common plaintiff. vices to medical potentially liable for surgeons were cians 600.5838a(l), Legislature in MCL malpractice. But medical could be liable for scope of those who expanded the claims provided It malpractice. entity is or who holds person or who brought against “a

be profes- health care to be a licensed or herself out himself employee or facility agency, or an sional, or licensed health facility agency ....” or health agent of a licensed pharmacy is whether in this case primary issue by MCL are covered pharmacy technician 600.5838a(l).[24] health care only those

Kuznar correctly opined § could within 5838a designated and facilities providers Therefore, those only providers malpractice. be sued for the profes- § can meet by 5838a and facilities covered Kuz- Accordingly, the test. relationship prong sional 5838a(l) if to determine §of nar reviewed language 5838a(l)(a) entity. Section designated pharmacy “a agency” facility health defines a “licensed 17 of the under article facility agency licensed health Public Acts of code, Act 368 of the health No. public to 333.22260 of 333.20101 being sections Compiled Laws.” Michigan 5838a(l)(a) its application limits

Because under ar- agencies licensed health facilities and those Kuznar Code, next turned Health ticle 17 of the Public 333.20106(1) to determine its attention designated the list of was within pharmacy whether 333.20106(1) facil- that “health provides entities. MCL agency” means: ity or

24 Kuznar, supra at 177. 484 Mich 397 Opinion of the Court

(a) operation, transport opera- An ambulance aircraft tion, nontransport prehospital support operation, life or response medical service. first

(b) laboratory. A clinical

(c) county facility. A medical care (d) freestanding surgical outpatient facility. A (e) organization. A health maintenance (f) aged. A home for

(g) hospital. A

(h) nursing A home.

(i) hospice. A

(j) hospice A residence. (k) (a) (h) facility agency A or listed in subdivisions university, college, located in a or other educational insti- tution.

Kuznar concluded because not pharmacies were list, included within this against claims asserted them Rather, did not in malpractice.25 sound medical claims asserted pharmacy sounded ordinary and, negligence, accordingly, the medical mal- practice did simply statutes not It is apply. this same statutory provision and analysis has led to the question we now address. Because this of same list 333.20106(1) health § facilities contained in does not PCs, include question arises whether PCs are ex- empt from of any of requirements the medical malpractice statutory scheme. We conclude that it is satisfying prong requires We note that the first Kuznar more than mere provided inclusion within the Public Health lists. Code The service service, professional must requires also be the determination of which analysis. example, hospitals list, further For while are included in the hospital janitors employees, dietary aides, all provide such as professional However, § services. inclusion either within 5838a or the necessary predicate Public sounding Health Code lists is a to an action malpractice. Opinion the Court 333.20106(1) in this §in refer to the list unnecessary 600.5838a, as language plain instance because 1994, includes expressly April effective amended definitional section. within its corporations amended, pertinent 5838a(l), provides Section part: act, the medical purposes of this a claim based on

For who holds entity who is or person or profes- health care to be a licensed or out himself sional, herself employee or agency,or an or facility health licensed engaging facility agency who is agent or of a licensed health treatment, assisting in medical care and in or otherwise professional, li- care not the licensed health whether or employee agent facility agency, or their health censed profession in a sole practice the health engaged of professional corporation, or partnership, proprietorship, entity, the time of the act or business accrues at other malprac- of medical that is the basis for claim omission or other- tice, regardless plaintiff time the discovers of the knowledge As used in this subsection: has of the claim. wise (a) facility agency” means a health health or “Licensed public facility agency licensed under article 17 or 1978, being code, Acts of Act No. 368 of the Public health Michigan Compiled to 333.22260 of the sections 333.20101 Laws.

(b) an indi- professional” care means “Licensed health public registered under article 15 vidual licensed or of 1978, code, being the Public Acts health Act No. 368 of Michigan Compiled 333.16101 to 333.18838 sections. Laws, practice or her health engaged in the his partnership, profes- proprietorship, a sole profession in However, entity. li- corporation, or other business sional professional not include a sanitar- health care does censed [Emphasis added.] or a veterinarian. ian as part § was enacted amendment of 5838a This provision that created the NOI of bills package the same 484 MICH397 Opinion of the Court in April 1994.26 § The amended 5838a refers to pro- fessional corporations twice. amendment, Before this § 5838a made no reference whatsoever profes- sional corporations.27 This specific addition of profes- sional corporations §to 5838a was a clear by statement the Legislature that it intended a PC to be an entity against which a medical malpractice action could be Further, asserted. placement of the reference to 5838a(l)(b) professional corporations § within (defining heath care professionals), rather than within 5838a(l)(a) § (defining health facilities), stands as a recognition of the nature of services as delineated in the Professional Corporation Service Act, MCL 450.225. When a PC professional renders services, it is rendering those through services the licensed health pro-vider care and the two are treated though they are one entity. § Section 5838a and 78, 2912b were both amended 1993 PA April

effective 1994. 5838a(l) provided: The former A claim based on person is, the medical of a who or be, who holds himself or herself out to a licensed health care professional, facility agency, employee licensed health or or agent facility of a agency licensed health engaging or who is assisting otherwise treatment, any medical care and professional, other health care whether or not licensed state, accrues at the time of the act or omission which is the malpractice, basis for the claim regardless of medical of the time knowledge discovers or otherwise has of the claim.

As used in this subsection: (a) facility agency” “Licensed health facility means a health agency public code, licensed under article 17 of the health Act No. 368 1978, being of the Public Acts of sections 333.20101 to 333.22181 of Michigan Compiled Laws. Ob) professional” “Licensed health care an means individual public code, licensed under article 15 of the health Act No. 368 of 1978, being the Public Acts of sections 333.16101 to 333.18838 of Michigan Compiled professional Laws. Licensed health care does not include a sanitarian or a veterinarian. Opinion of the Court § Finally, recognizes pro- 5838a that some services professional vided a PC are services while others provided professional are not. Where the services are provider, services rendered a licensed health care any challenging being negli- claim those services as gent malpractice, sound in medical and the statutes governing malpractice apply. Where the ser- provided by professional vices a PC are not services as 450.225, defined in MCL subject the claim would be malpractice requirements to the medical be- ordinary negligence. cause those in claims sound To negate Legis- hold otherwise would the intent of the ignore proper statutory lature and rules of con- require any struction, which one statute be read conjunction with other relevant statutes to ensure legislative being correctly intent is ascertained. Accordingly, prong case, the instant the first the Kuznar test is met because a PC is a covered entity provided under 5838a and the services were prong services. The second of the Kuznar dispute test is also met because there is no that the posed questions judgment claims asserted of medical knowledge experi- outside the realm of common Consequently, prongs ence. because both of the Kuz- nar test met, have been we conclude that this is a malpractice. claim that sounds medical Because §2912b(l) clearly requires provide a claimant to timely commencing NOI before a medical plaintiff provide action, this PC with timely NOI. C. THE CONTENT REQUIREMENTS OF MCL 600.2912b provide Valley Because did an NOI to Huron Radiology, the next issue is whether the NOI was 484 Mich 397 op Opinion the Court this issue an ex- requires

defective. The resolution of § The requirements content of 2912b. amination of the that the instant NOI contained Appeals Court of ruled defect, of the action thereby necessitating dismissal The defect in the NOI can prejudice. purported without to set forth a summarized as the failure of be Murry employee in the NOI that Dr. was the statement and that this PC was vicari- Valley Radiology of Huron We ously employee-doctor. liable for the actions of its trial court and the take note of the fact that both the fully held that the NOI Appeals compliant Court of 2912b(4) § in all requirements with the content under respects regarding Murry, holding Dr. with which we Also, fully agree. pursued we note that the claim Valley Radiology Huron was one for vicarious against liability Murry, fully for the actions of Dr. and the NOI Dr. Valley Radiology Murry informed Huron Thus, Dr. are being Murry. claim asserted we § 2912b to determine if there is a compelled review forth the statutory specifically legal mandate to set NOI, in the relationship parties between these two a statutory whether there is mandate to set forth that liability the claim asserted is one for no vicarious when being other claims are asserted. Our once inquiry again necessarily begins language with an examination of the §of 2912b. question

The first we examine is whether 2912b legal employment be- requires relationships in an parties tween the be set forth NOI. We hold that The content for an requirements answer no. NOI 2912b(4): are set forth subsection professional given The notice to a health or health facility under this section shall contain a statement of at following: least all of the

(a) The factual basis for claim. Opinion of the Court (b) applicable The practice alleged by standard of or care the claimant.

(c) The manner in which it is claimed that the practice standard of or care was breached the health facility. or health (d) alleged action that should have been taken to compliance achieve alleged with the practice standard of or care.

(e) The alleged manner in which it is the breach of the practice standard proximate or care was the cause of the injury claimed in the notice.

(f) The names of all professionals health and health notifying facilities the claimant is under this in section relation to the claim.

We find no language this subsection requires a claimant to set forth the nature of the relationship between parties to be sued. To the contrary, subsec- f tion clearly states that all that need be done regard is to identify the names of the health profes- sional and facility being notified. We cannot add a requirement that is not contained in the plain statute’s language. Moreover, we cannot assume that defendants were unable to comprehend the nature of the relation- ship between them without having claimant advise them in writing that such a relationship exists. Cer- tainly they are fully aware of the legal relationship between them.28 More importantly, however, there sim- ply requirement no in the statute that a claimant 28 Moreover, illogical it would be to assume that a claimant knows precise legal relationship provider may between defendants. The employment have either an relationship actual they with the PC or may complex independent have a arrangement. contractor While the vicariously PC can be 450.226, liable for the acts of either under MCL logically imposes requirement the statute allege no on the claimant precise relationship. nature of the 484 Mich Opinion of the Court legal employment the defendants of their

advise Accordingly, Potter’s NOI was not defec- relationship.29 regard. tive in this 2912b(4) §

Our is whether contains query next that the claimant set forth the requirement specifically NOI, when legal theory liability of vicarious within again claim asserted. We liability vicarious is the hold is an no. There is unequivocal answer 2912b(4) language in the that states that a nothing theory must of vicarious legal claimant set forth liability. requirement Nor can we add such a requirement statute. The statute is focused on a recipient the claimants advise the of the factual and If being medical basis of the claim asserted.30 no other PC, claim is asserted then there is no 29However, assuming argument even the sake that there was a statute, requirement legal relationships forth set the NOI meets merely that burden. Plaintiffs NOI does more than name the entities to sued; Valley Radiology be the NOI names Huron as well as the three physicians employees agents, individual and “their actual or osten sible, phrase repeated throughout thereof.” This three times the NOI. language provide ValleyRadiology This is more than sufficient to Huron establishing legal relationships with notice of the facts the at such an early stage proceeding. the 30Any argument necessary plead supporting that it is facts vicarious liability phrase liability” part parcel to state the “vicarious as misplaced the “factual basis of the claim” is and misreads the NOI 2912b(4) requirement statute. does contain such a and we Section not requirement purposeful. If must assume that the absence of the the Legislature requirement, easily wanted such a it could have included it. 2912b(4)(a) phrased legal § It could have “the factual basis for the liability liability.” claim and whether the claim is for direct or vicarious Legislature itBut did not do so. The could also have inserted additional mandates, requiring “provider such as the claimant to forth that set the practice Michigan” provider is licensed to medicine in or “the is licensed However, specificprovision public again, under a health code.” Legislature statutory guidance, not Absent chose to do so. we cannot upon judicial impose requirements additional claimants. The better practice adding requirements is to refrain from to a statute that are not language. contained within its Opinion of the Court possibility regarding confusion the nature of the being claim asserted If against it. the claimant wishes to make some other claim against PC, then the claim- ant would be required to set forth that additional claim 2912b(4)(b) order satisfy “applicable stan- dard of requirement. care” But if only claim as- serted against the PC is one for liability, vicarious “applicable standard of care” requirement is met be- cause there one standard of care: the standard of care for the provider. There is no separate standard of care for the PC. analysis This not only holds true to the statutory language, but also fully recognizes that agent and principal share a singular identity for pur- poses of performing professional services, pursuant the statute governing professional corporations.31 Ac- cordingly, where the NOI adequately sets forth the claim agent or employee, the claimant need not repeat information, the same or state the words liability” “vicarious NOI, because the statute does require the claimant to do so.

Moreover, we find Valley Huron Radiology’s asser- tions especially troubling openly because it admits knowing and understanding that it vicariously liable for the actions of its Dr. employee, Murry. In other words, while admitting that employs it Dr. Murry, Huron Valley Radiology simultaneously asks that we dismiss case for plaintiffs failure to tell it that it employs Murry. Dr. query We purpose what such a statement would serve. Valley Huron Radiology’s proposition exalts form over substance in an intolerable manner. More importantly, however, because there is no requirement in the statute to state legal term liability” “vicarious NOI, within the we will not hold 31 MCL 450.225. 484 MICH 397

424 Opinion the Court nor will we write such requirement, to this plaintiff into the statute.32 requirement consistent with this Court’s holding This is also of vi- forming the foundation longstanding principles his or her keep A master is bound to liability. carious bounds, and is proper responsible their servants within their contemplates “The that if he or she does not. law at acts, constructively present and that he is acts are his ”33 held that a “is long principal all. This Court has them identity a practical liable because the law creates only that he is held to have done [agents], with his men so longstanding legal This doc- they what have done.”34 previously in MCL 450.225. As dis- trine is embodied cussed, that a PC can recognizes statute its licensed health through render services Accordingly, regard to vicarious providers. care 32 ruling that this in Roberts v Mecosta Co We do not believe Court’s (Roberts 679; (2004), Hosp II), dispositive. Mich Gen 684 NW2d plaintiff asserted Roberts II discussed a similar issue that arose when regarding in a that left confusion whether the claims claims manner liability, liability, direct vicarious or both. The Court asserted were for stated: complaint Although appears it from that she is claiming hospital professional corporation are vicari- that the ously negligence agents, their the notices of intent hable for alleged negligence against

implied these de- direct granting privi- negligently hiring negligently fendants for leges staff II, supra 693.] [Roberts to the individual defendants. question correctly II was decided because it adds We whether Roberts statute; namely, requirement language in the not found However, “particularized.” opined II that because statements be Roberts regard to whether the claim was for direct or there was confusion with liability, the PC was unable to understand the nature of vicarious us, potential being asserted. In the case before no such claims exists, and, accordingly, distinguishable. II is confusion Roberts (1871). Webster, 298, 23 Mich Smith Co, Sparrow-Kroll Lumber Id. at 300. See also Ducre v 52; 133 NW 938 Opinion of the Court claims, liability the parties are in actor, fact the same and therefore, there is no need for a claimant duplicate the same information in the NOI for both parties. If the information contained within the NOI is sufficient with regard agent, it is sufficient with regard to the principal, because they share a practical identity for purposes of that claim.

In sum, the issue is whether Huron Valley Radiology could reasonably be held to comprehend the nature of the claims being asserted against it. The provided NOI the necessary information for both the PC and the doctor to have such an understanding. The only claim asserted against Huron Valley Radiology was for the actions of Murry, Dr. and those actions were fully and adequately set forth in the NOI. Nothing more is required. We conclude that the NOI in this case was not defective and dismissal of the action is not warranted.

IV CONCLUSION We hold that a plaintiff provide must a timely NOI to a PC before commencing a medical malpractice action when the claims alleged against the PC are predicated on its vicarious liability for a licensed health care provider who is rendering professional services. Be- cause the claim against Valley Huron Radiology is based on liability vicarious for the professional services of its employee, a licensed health care provider, plaintiff was provide a timely NOI as the action is one sounding in medical malpractice.

Moreover, we conclude that the NOI filed in this case fully compliant plain language § 2912b(4), governs which First, its contents. there is no 2912b(4) requirement §in to set forth the legal rela- tionships between named parties; rather, the plain 2912b(4)(f) language §of only requires naming each Mich Opinion by Concurring Kelly, C.J. only claim as- Secondly, where be sued. party to liability, and for vicarious a PC is one against serted asserted being of care is no standard hence other within 2912b PC, requirement is no there legal forth the that a claimant set that mandates in the NOI. liability doctrine of vicarious one for vicarious at issue in this case was The claim 450.225, a PC can In of MCL liability only. light its licensed health through services render the PC and Where the NOI names both provider. care fully long so as it sets provider, compliant the NOI is and medical information neces- forth all of the factual being the nature of the claim sary to inform the PC of this the Because physician-provider. asserted and fully compliant it is requirements, NOI meets these the this action on the basis of there is no need to dismiss NOI. judgment Court Appeals therefore reverse the of

We trial further the case to the court for and remand Furthermore, opinion. consistent with this proceedings abeying application the for leave we vacate the order (Docket Nos. 136338 and McLeary in Potter v appeal 136339) in deny application light opin- and the ion. JJ,

Kelly, C.J., Cavanagh Weaver, and con- and J. Hathaway, curred with sign I (concurring). fully agree C.J.

KELLY, in I write for the sole majority opinion this case. to Justice MARKMAN’s comments purpose responding respect for the doctrine of stare attacking majority’s dissent, partial partial decisis. In his concurrence a claim that he and Justices repeats Justice MARKMAN numerous times published Young CORRIGAN have 427 v Opinion by Concurring Kelly, C. J. The claim same of citations.2 string this term1 with the in majority their who colleagues comprise is that A review ignoring precedent. this case have been illustrate that the in citation serves to string cases simply is false. claim v claims that in Vanslembrouck Justice MARKMAN 4 ignored Hosps. v Lakeland Vega the Court

Halperin,3 However, Vega from distinguishable Vanslembrouck 600.5851(1) is a Vega determined that MCL because held that saving provision, whereas Vanslembrouck 600.5851(7) Thus, a statute limitations. these effect of different statu altogether cases examined the tory provisions. in v

Justice MARKMAN also claims that Hardacre failed follow the Court Saginaw Vascular Services,5 However, Hardacre, v Med Ctr.6 Borgess Boodt appeal allegations denied leave to because Court find an action did not of intent to Hardacre, need to with Boodt. In burden comply of the standard of care was minimal.7 explication 1 300, See, Corp, 391-392; e.g., Magna v 484 Mich 773 NW2d Petersen (2009) (Markman, J., Auth, dissenting); Wayne Airport v Co 564 Chambers (2009) 1081, 1082 J., dissenting); v Mich Scott Farm State (Corrigan, (2009) 1032, J., Co, dissenting); Auto Ins Mut 483 Mich (Corrigan, (2009) J., Beasley Michigan, v Mich dissent- (Corrigan, (2009) Holbrook, J., dissenting). ing); Juarez (Markman, Young Scott, joined dissenting Chambers, Justice statements Beasley, and Juarez. 2 Post at 478 n 23. 3 (2009). Halperin, 483 Vanslembrouck v Mich 965 4 Inc, 243; Vega Hosps Joseph, 479 Mich 736 v Lakeland Niles-St (2007). NW2d 561 5 (2009). Services, Saginaw Hardacre v Vascular 483 Mich 918 6 (2008). Borgess Ctr, 558; 44 Boodt v Med 481 Mich 751 NW2d 7 Remand), 679, Hosp (After 470 Mich See Roberts v Mecosta Co Gen (2004). 12; 694 n 684 711 NW2d 484

428 MICH397 Opinion by Concurring Kelly, C.J. did ignore Nor the Court with which it precedents in v disagrees Sazima Bar & Restaurant.8 Shepherd Justice MARKMAN claims that the Court failed to follow v Chrysler However, Blue Arrow Lines.9 Transport Sa- exceptions zima involved “going to the and coming” rule set forth in Camburn v Northwest School Dist.10 Thus, the Court not bound Chrysler. was

Justice MARKMAN next ignored claims the Court Smith v Khouri11 it when decided Juarez v Holbrook12 However, Juarez, it undisputed was the trial court performed analysis a reasonableness in calculat- ing proper attorney Therefore, fee award. remand light of Smith unnecessary.

In Beasley Michigan,13 v the Court considered the 600.6431(3). statutory notice of MCL provision Thus, contrary claim, to Justice Markman’s the Court was not bound v Rowland Washtenaw Co Rd Comm.14Row

land interpreted provision of MCL 600.1404(1); thus, the cases involved different statutory provisions altogether.

Likewise, Justice MARKMAN incorrect claiming that the Court failed enforce Thornton v Allstate Ins Co15 and Putkamer v Transamerica Ins Corp of 8 Restaurant, (2009). Shepherd Sazima v &Bar 483 Mich 924 9 Chrysler Lines, Transport v Blue Arrow 606; 295 Mich 295 NW 331 (1940). 10 (After Remand), Camburn v Northwest School Dist 459 Mich (1999). 478; 592 NW2d 46 11 Khouri, (2008). Smith v 519; 481 Mich 751 NW2d 472 12 Juarez, supra. 13 Beasley Michigan, (2009). v Mich 1025 Comm, Rowland Co Rd 197; Washtenaw 477 Mich 731 NW2d 41 (2007). Co, 643; Thornton v Allstate Ins NW2d Potter v by

Opinion Corrigan, J. In Co.17 Auto Ins Farm Mut v State in Scott America16 analysis thorough undertook Scott, Appeals Court of applied prece- and jurisprudence no-fault the relevant nearly years. understood it has been dent as in Rowland to abide did not fail the Court Finally, inter Chambers Auth.18 Airport Co Wayne Chambers MCL interpreted 691.1406, Rowland while MCL preted 691.1404(1). different statu dealt with Thus, the cases to extend was not bound the Court and tory provisions in issue Chambers. statute at to the Rowland has been that the Court accusation summary, In been justices Had other incorrect. is ignoring precedent complained the decisions in some of majority in the existing prece- extended have about, they might well refusal of those law. But the area of the to a new dent quite precedent to so extend in this case majority it. This apply part refusal on their from a different CORRIGAN, MARKMAN, and Justices a distinction concede. do well to YOUNGwould dissenting

CORRIGAN, (concurring part J. and the Court majority I with agree part). (NOI) was of intent notice Appeals I Murry. respect- Kristyn Dr. defendant as to sufficient holding however, majority’s dissent, from fully (Huron), was EC. Valley Radiology, Huron part Instead, join I concur with an NOI. entitled to partial concurrence partial I of Justice YOUNG’s regard to whether dissent with NOI to commence with an defendant Huron

serve I MCL 600.2912b. action under 626; America, Corp Transamerica Ins Putkamer v NW2d 683 17Scott, supra at 1032.

18 Chambers, supra. 484 Mich 397 Opinion by Corrigan, J.

fully agree Justice that Huron is neither a YOUNG “health professional” facility” nor “health entitled to Legislature, under 600.2912b. Whether the design, oversight professional corpora- excluded statutory tions such as Huron from the definition of facility “health in agency” 333.20106(1), MCL it is Legislature, Court, for the and not this to decide. NOI, Huron Because was not entitled to an plaintiff I tolling. was not entitled to share Justice MARKMAN’s III(C) concerns as in part partial discussed his concurrence dissent partial regarding Justice I analysis tolling YOUNG’s of the Specifically, issue. disagree that as long as an NOI is sufficient as to one defendant, the statute of limitations is tolled as to all I agree defendants. with Justice MARKMAN’sconclusion that plaintiffs complaint here untimely filed. Ac- cordingly, I would hold against that the action Huron was barred I the statute of Moreover, limitations. III(D) also concur with part of Justice MARKMAN’s opinion concerning plaintiff whether can retroactively NOI. amend an I

Additionally, dissent from majority’s holding that plaintiffs NOI as to Huron was sufficient. As an matter, initial I would not reach sufficiency of the III(E) issue all for reasons in set forth part of Justice MARKMAN’s partial and dissent, concurrence I with fully join. which concur and I concur also with issue, Justice MARKMAN’s of this post discussion at 455 n 1. Because the grant Court’s limited order did not parties instruct to brief this issue and because both litigants should public rely be able on our orders, I not Queen would resolve issues in this Hearts fashion.1 (New Carroll, Alice’s Adventures In Wonderland See Lewis York: (“ Signet 2000), Classic, ‘No, p ch no!’ said the Queen. ‘Sentence ”).

first —verdict afterwards.’ Opinion Young, J. dissenting part). part (concurring J. YOUNG, opinion, majority in the result I concur Radiology, defendant, Valley Huron holds which to dismissal. (Huron), is not entitled EC. holding majority’s from

I dissent respectfully to serve required is plaintiff 333.20106(1) with in MCL not enumerated corporation malpractice a medical commence of intent a notice (“the (NOI) NOI stat- MCL 600.2912b under action ute”). profes- “health neither a defendant Such a statute; NOI under the facility” “health nor a sional” defendant give thus, a plaintiff commenc- before the NOI statute notice under written additionally I action. would ing a Huron was claim hold that 600.5856(d) because pursuant tolled the NOI statute compliance an NOI provided during have been barred would “a claim” that period. analysis majority’s from the I further dissent The NOI statute deficient. NOI was plaintiffs whether “[t]he a statement provide that the requires factual necessary predi- A the claim.”1 basis for factual an there is liability claim is cate for a vicarious (or relation- principal-agent) other employer-employee rela- Huron’s of defendant a statement but such ship, found is not individual defendants to the other tionship NOI is defective. NOI; thus, plaintiffs plaintiffs demonstrates, it is itself opinion the majority As Court for this acceptable increasingly swiftly becoming statutory meaningful precise or attempting a to avoid pro- broad vagaries and imprecise in favor of analysis by those only analyses are favored Such nouncements. 1 600.2912b(4)(a). MCL

432 484 Mich 397 Opinion Young, J. who a and particular expli- seek result cannot find an cable for The justification majority’s analysis it. threat- statutory ens to render the notice procedure nugatory undermines, overrules, and if not prece- this Court’s dent.2 I believe that this Court’s decisions should be grounded in precise rigorous analysis and of the rel- statutory evant text this Court should avoid creating among “inconsistencies its and... cases re- duce confusion jurisprudence by [the Court’s] over- ruling conflicting decisions.”3 I

Accordingly, would reverse the Appeals Court of hold that defendant is not entitled to due dismissal plaintiffs defective NOI. HURON,

I. PLAINTIFF WAS NOT TO SERVE DEFENDANT REQUIRED CORPORATION, A PROFESSIONAL WITH NOI. AN The Court of held Appeals that plaintiff served de- Huron, fendant with a corporation, de- fective NOI that entitled Huron to dismissal. How- ever, “health professional” and facility” “health are statute, entitled notice under the NOI MCL Thus, 600.2912b.4 a threshold issue is whether defen- dant Huron is a “health “health professional” or facil- not, ity.” If defect in NOI rendered moot and does not entitle defendant to dismissal. Hosp (After Remand), v Mecosta Roberts Co Gen See 679; 470 Mich (2004) (Roberts II). 684 NW2d 711 Ass’n, v Auto 19; Devillers Club Ins n 702 NW2d 600.2912b(l) provides: Except provided section, person as otherwise in this shall alleging an a health commence action

professional facility or health person given unless the has facility health or health written notice under this days not less than section 182 before the action is commenced. [Emphasis added.] 433 v Opinion by Young, J. in this persuasively argued has Because pro- “health defendant Huron is neither a Court that to notice facility” a entitled nor “health fessional” statute, I would hold that the NOI under inconsequen- Huron was NOI as defendant defective tial.5 5 malpractice This is applies medical actions. statute The NOI action, malpractice

clearly but not for the reasons stated a medical subject malpractice liability a because majority. medical Huron is malpractice agent its sued in medical principal the medical sued for malpractice. alleged step determining plaintiff has whether a first when being brought malpractice [the claim] is is to consider “whether medical Bryant who, entity that, capable malpractice.” against or an someone Centre, Inc, 411, 420; Nursing NW2d 864 Oakpointe 471 Mich 684 v Villa statute, (2004). consistently explained the accrual has This Court may 600.5838a, define, expands, be sued but rather who does 420-421; Bryant, supra v Raksha malpractice. Kuznar for medical (2008). 169, 177; Here, plaintiff raises a Corp, 121 481 Mich 750 NW2d liability, against liability, Huron. not direct claim of vicarious 1, 11; of Hosp Managers, Mich NW2d 356 See Cox v Flint Bd prin- consistently recognized against a Michigan have courts actions liability theory cipal malpractice when the under a vicarious in medical agent was principal was not in the accrual statute but identified See, malpractice liability. e.g., subject v Parchment Francisco (1979) (vicarious liability Clinic, PC, 325; 407 Mich 285 NW2d 39 Med malpractice professional corporation of a against for medical action general practitioner surgeon of MCL amendment before 78); 1994, adding “professional corporation” 1993 PA 600.5838a (1985) Co, App 481; Meyer Drug Rexall 141 Mich 367 NW2d Becker v (vicarious liability against pharmacy, action which is not identified statute, phar- Kuznar, supra, for medical of a that accrual Stores, 250; Inc, macist); Apex Drug App NW2d v 201 Mich Simmons (1993) (same). liability Conversely, held that vicarious claims Court has agent ordinary negligence corporate because the entities were stated in Joseph’s malpractice. See hable in medical Kambas St could not be (1979) (decided 256; Detroit, Mercy Hosp 205 NW2d 431 facility to a health the accrual statute did not refer “licensed when holding hospital, “[t]he agency” or otherwise include 484 Mich 397 by Opinion Young, J. This has previously Court defined the term “health facility” in the NOI through statute reference to the ,6 (PHC) Health Code Public which defines “health facility or agency” as: hospital’s liability, being predicated upon theory herein the superior, respondeat having subject nurses determined that are not year malpractice limitations, to the two statute we conclude that the year injuries arising three statute of limitations is from

negligent equally applicable employer act of a nurse and is to defendant herein”); Kuznar, hospital supra (holding at 172 that because the employee malpractice, liability could be not liable in medical “vicarious employee’s alleged negligence] pharmacy [the [which is not 5838a(l)] may proceed three-year referenced also under statute ordinary negligence”). Thus, principal of limitations for when the is not statute, liability identified in the accrual a vicarious claim not auto- matically ordinary negligence Rather, an claim. the nature of the claim depends agent malpractice. on whether the is sued medical against agent The nature the claim defines the vicarious liability agent malpractice, claim. If the is sued medical the vicarious liability against principal malpractice. claim is in medical This does principal professional.” malee the a “licensed health care 600.5838a(l)(b). principal It makes the liable for the acts of a “licensed professional.” care health Here, agents, Kristyn Murry defendant Huron’s Dr. defendants McLeary, radiologists subject Richard malpractice Dr. are to medical liability. dispute plaintiffs There is no claim sounds in medical Bryant, 422; malpractice. supra Accordingly, See 414 n ante at 23. liability against vicarious claim defendant Huron is a medical malpractice claim. Warren, City 11; See Omelenchuk 461 Mich 571 n 609 NW2d Gilbert, 451, 459; See also Bates v 736 NW2d 566 (2007) (using profession” the definition of “health in the PHC define expert testimony that term in MCL in medical 600.2169— actions). Omelenchuk, plaintiffs’ In decedent suffered a heart attack and city department alleging sued the defendant and fire medical malpractice. plaintiffs’ complaint timely At issue was whether periods filed in accordance with the various notice in the NOI statute. A applied plaintiffs’ threshold issue was NOI whether the statute to the claims the defendants. This Court held the NOI statute applied facility’ ‘[h]ealth because the PHC “defines include an ‘ambu- V MCLEARY POTTER Young, J. Opinion opera- transport (a) operation, aircraft An ambulance operation, or support prehospital life tion, nontransport response service. medical first

(b) laboratory. A clinical

(c) facility. county care A facility. (d) surgical outpatient freestanding A (e) organization. maintenance A health (f) aged. A home for

(g) hospital. A

(h) nursing home. A

(i) hospice. A

(j) hospice residence. A (h) (a)

(k) facility agency listed subdivisions A or institution. college, educational university, or other located in a ] [7 incorpo- could be facilities listed the health Several of how- Significantly, corporations. rated as professional corpo- Huron, although a ever, defendant Thus, facility. health ration, not a listed is facility.” not a “health Huron is “Pro professional.” “health not define

The PHC does member of as “a however, commonly defined fessional,” is 8 professions.” learned one of the [especially] profession, a vocation, “a as profession” defines “health The PHC by an employment performed or calling, occupation, registration license or to a acting pursuant individual opera- city an ambulance Warren has operation’. [and t]he .. lance Omelenchuk, supra n 11. at 571 tion.” 7 333.20106(1). MCL 8 Random, Dictionary 8.3a College See MCL House Webster’s according (“All and understood phrases be construed shall words and ..”). usage language . approved .

the common 484 Mich 397 Opinion Young, J. Thus,

issued only under this article.”9 an “individual” practice can a “health profession.” Because PHC “individual” “a defines natural person,”10 natural can person professional,” be “health defendant Huron is therefore not “health profes- sional.”

Instead of these applying interpretations consistent majority with our precedent, relies on definition professional” of “licensed health care accrual statute, MCL “an 600.5838a: individual licensed or registered under 15 of the public article health code .. . 333.16105(2) added). (emphasis MCL 333.1105(1). 333.16101(2), provides MCL See MCL which that the 333.16105(2). seq. MCL definitions in 333.1101 et are to MCL 600.5838a(l), part, pertinent provides: purposes act, malprac- For of this a claim based on the medical entity person tice or of a who is or who holds or himself herself out professional, facility be a licensed health care licensed health or agency, employee agent facility an or or of a licensed health or agency engaging assisting iswho in or otherwise in medical care treatment, profes- whether or not the licensed care health sional, facility agency, employee agent licensed health or their engaged practice profession in the health in a sole

proprietorship, partnership, professional corporation, or other entity, time business accrues at the of the act or omission malpractice, for the regardless basis claim of medical knowledge time the discovers or otherwise has of the used in claim. As this subsection: (a) agency” facility facility “Licensed health health means a agency public code, licensed under article 17 of the health Act 1978, being No. of the Public Acts of sections 333.20101 to Michigan Compiled of the 333.22260 Laws. (b) professional” “Licensed health care an means individual registered code, public licensed or under 15 of article health 1978, being Act of the No. 368 Public Acts of sections 333.16101 to Michigan Compiled Laws, engaged of the 333.18838 and in the practice profession proprietorship, of his or her health in a sole partnership, professional corporation, entity. or other business However, professional licensed health care does not include a or a sanitarian veterinarian. MCLEARY POTTER V Opinion by Young, J. health profes- of his or her practice in the engaged partnership, professional in a sole proprietorship, sion stated, As entity.”12 or other business corporation, not an “individual.” corporation is professional disregards simply Interestingly, majority definition of interpretation recent very Court’s in the accrual stat- professional” care “licensed health Kuznar, sought pharmacy In the defendant ute. of limitations for medi- period of the shortened

benefit subject that argued it was malpractice cal it a “licensed liability because was accrual statute. under the professional” health care year, unanimously rejected argument last Just we position is flaw defendant’s explained “[t]he Health Code defines ‘individual’ the Public ”13 majority’s argument ‘a The person.’ mean natural re- unanimously that we suffers the same flaw here “a A is not natural corporation jected. professional Furthermore, corporation is professional person.” the public under article 15 of registered “licensed or acknowledge The cannot majority health code.” changing it or overruling of Kuznar without existence It chosen ignore rationale here. has therefore its Kuznar. analysis superficial. majority The majority’s discovered term

merely “profes- announces that it and, therefore, a in a statute corporation” related sional In notice. serious is entitled to corporation construction, and so does statutory context matters grammar. care statute, profes-

In the “licensed health accrual “an indi- by modifying subject, sional” defined 600.5838a(l)(b). MCL 333.1105(1). Kuznar, 179, quoting supra at Mich 397 Opinion Young, J. vidual,” “engaged with the clause in the practice his or her health in a profession proprietorship, part- sole nership, professional corporation, or other business entity.” Thus, instead that providing professional a “licensed health corporation professional,” is care provides practice statute that of a health in a profession professional corporation is one simply way for “an requirements individual” meet to be a “licensed care professional.” health (1)

The context of subsection of the accrual statute betrays majority’s also It position. provides, that pertinent part, malpractice person

a claim based on the medical of a ... professional,.. is ... who a licensed health care . whether professional... engaged or not the licensed care health is practice profession in the proprietor- health in a sole ship, partnership, professional corporation, or other busi- entity, ness accrues at time of the act or omission malpractice is basis for claim of medical [MCL .... 600.5838a(l).] Thus, the reference to a professional corporation makes clear that practice a professional corporation does not affect when medical claim accrues.

Moreover, the majority’s interpretation repudiated statutory the rule of interpretation that prohibits rendering statutory terms surplusage or nugatory.14 majority all proclaims practical “[f]or pur- poses, the PC and the health care provider are treated entity professional as the same when are in- services pronouncement volved.”15 designed ignore This reality and the actual text of the statute. Wayne Co, See Odom v 459, 471; (2008), 482 Mich 760 NW2d 217 Co, Michigan Regents, Herald Inc v Eastern citing Univ Bd

463, 470; 719 NW2d 15 Ante at 412. Opinion by Young, J. its To conclusion arrive corporation statute, the ma- included in the NOI is principles jority its obli- conflates common-law accurately gation It this there- statute. construe proposition emphasizes of the unremarkable fore liability corporation can that a vicarious common-law agents,16 ignores through but its officers and act corpora- equally proposition that a the unremarkable analysis legal entity.17The in this flaw tion is distinct liability imports of it common-law theories is that statutory entities enumeration of covered defeat the professional corporation.18The does not include a that Legislature any entity and exclude is free include By statutory procedure it desires. the from liability importing of into this theories extra-textual majority statutory procedural requirement, de- option Legislature prives and renders sur- Legislature plusage portions enacted. of the statute majority holds that a stated, As professional” corporation the term a “health because is corporation” appears “professional in the accrual stat- 16 568; Sales, 562, 284 Mich 280 NW See v Millenbach Motor Mossman (1938), 174, 191; Garey Corp, 271 citing v 279 Mich NW 723 50 Kelvinator 17 (1950) 175, Sanford, 191; 515 See v 327 Mich 41 NW2d Bourne (“[A entity separate corporation] distinct is an and from artificial stock.”), citing College Dartmouth individual Trustees holders its (4 Wheat) 518; (1819); Woodward, v 4 L Ed 629 Wells Firestone 17 US (1984) (“We 650; Co, & NW2d 670 Tire Rubber Michigan recognize principle separate general that in entities will respected.”). be post at 458. Further Justice makes the same error. See Markman tolling more, my analysis and the is neither inconsistent with Kuznar emphasize internally post See at 459 n 5.1 statute nor inconsistent. Here, liability liability procedure matters. Huron’s is are distinct pertinent by opinion. provided law. note 5 of common See procedure provided is statute. Mich Opinion Young, J.

ute definition “licensed health care provider.” That definition, however, any also includes “other business entity.” By majority’s logic, any “other business entity” If professional.” true, is a “health that were facility” then terms “health in the NOI statute ¿he facility “licensed health agency” accrual statute would be surplusage. example, needless For hospital PHC listed definition used define “health facility” “licensed health care facility or A agency.”19 hospital bemay and, such, incorporated any Thus, “other entity.” business under the majori- ty’s analysis, hospital is, “for all practical purposes,” a professional.” “licensed health care The same is true for all other entities listed in the PHC definition of “li- facility agency.”20 censed health Because it renders the term facility” “health in the NOI statute needless surplusage, the majority’s interpretation is errone- ous.

Because defendant Huron is neither a “health facil- ity” nor a professional,” “health I would hold that required was not to serve it with an NOI before commencing a medical malpractice action against it.21 Thus, plaintiffs claim against defendant Huron was not subject to dismissal for a defective NOI. 333.20106(l)(g); Omelenchuk, 11; supra Kuznar, See MCL at 571 n supra at 177-179. 333.20106(1). See MCL my analysis Justice Makkman contends that is inconsistent with I and certainly Roberts Roberts II. Post at 459 n 5. Justice Markman is thoughtful opinion, are, practical aware no matter how we aas matter, incapable resolving potential every conceivably issue could parties arise in a case. Neither the nor this Court raised the issue professional corporation required whether the there was to receive an prefer my analysis NOI in Roberts I Roberts II. I to base on issues that we did address rather than consider from inferences issues that we did not and were not asked to address. Opinion Young, J. AGAINST PLAINTIFF’S CLAIM OF LIMITATIONS FOR THE STATUTE II. 600.5856(d). TOLLED UNDER MCL DEFENDANT HURON WAS briefing on supplemental This Court ordered is not corporation “whether, if a defendant provided to be entity an to whom of limita- 600.2912b, the statute applicable under MCL 600.5805(6), subject tions, was nonetheless MCL MCL tolling former statutory provided 600.5856(d).”22 limitations was not If statute of (d) statute, tolling of the under former subsection tolled against defendant 600.5856, then claim plaintiffs expired of limitations period filed after the Huron was entitled to dismissal Huron would be and defendant statute of I persuaded am prejudice. Huron claim limitations (d). former subsection tolled under provided:23 here The statute tolling repose are tolled: of limitations or statutes (a) complaint copy the time is filed At are on the defendant. complaint summons and served (b) jurisdiction the defendant is other- the time over At acquired. wise

(c) complaint copy of the time the is filed and a At the good placed in complaint are summons and faith service, in this case officer for immediate but hands of an longer days after the not tolled than the statute is is received copy complaint of the summons officer.

(d) If, during period under section applicable notice 2912b, by the statute of limita- would be barred a claim days equal longer number of repose, for not than a tions 483 Mich 922 PA effective tolling amended April 22, statute was 2004. 484 MICH Opinion by Young, J. days applicable period the number of notice after given

the date in compliance with section 2912b. [Emphasis added.] (d) argues

Plaintiff that because subsection uses “a,” indefinite article not “the,” the definite article it is and, specific therefore, not claim tolls all in the claims complaint. argues Defendant tolling only applies for “a claim” to which “the applicable notice period under section applies. 2912b”

I believe that the dispositive question is “what is being tolled?” The first sentence of the tolling statute states “[t]he statutes of limitations are repose plural tolled.” The form suggests that more than one statute of can subsection, limitations be tolled by each (d). including subsection

By nature, their each of the other tolling provisions, 5856(a) (c), through all apply to claims in a complaint, just Thus, individual claims. form plural in the prefatory clause is consistent with those provisions they because could multiple involve statutes of limita- tions.

Based on the prefatory there provision, strong is a textual argument (d), that under subsection “[t]he statutes of limitations . . . are tolled” for all claims a complaint when “during notice period claim, 2912b, under section would be barred statute of or repose.” Thus, limitations for example, complaint alleging malpractice negli- claim and a claim, (d) if gence requirements of subsection are met, the “statutes of . . . limitations are tolled” both I claims. believe superior that this is the argu- textual ment.

Although prefatory specify clause does not which statutes of tolled, limitations are there no textual 443 by Opinion Young, J. claim.24 Subsec- single to a restricting tolling for basis (d) during barred “a claim” to be only requires tion compliance given to be and notice period statute; provides clause prefatory the NOI as a result.25 are tolled multiple statutes 24 suggest that my analysis. I do misconstrues Justice Markman 469. always Post at is tolled. of limitations than one statute more claim, only limitations statute of Certainly, one then one if there is suggest all defendants that “all claims do I is tolled. Nor single single defendant. by NOI as to a Michigan” a sufficient are tolled omitted). aside, there Hyperbole I believe that (emphasis n 16 Post at 472 (d) tolling treating statute of the simply for subsection is no textual basis (a) (c) tolling The through statute. of than subsection different distinction; capable providing a basis for Legislature perfectly of such is (c) hy tolling as amended my statute of subsection see discussion PA 87 below. 2004 25 intent must “the notice of agree I with Justice Markman 2912b(4) by ‘each as to of the statements contain all ” 470, quoting notice.’ Post at particular named in the [defendant] statutorily prohibited II, supra a is at 692. Because Roberts giving first commencing malpractice action without a medical from statute, appropriate dismissal is required under the NOI the notice 600.2912b(l); give See MCL plaintiff fails to such notice. a when 745, 753; NW2d City Hosp Corp, Mich Burton v Reed (2005) remedy noncom appropriate for (holding is an that “dismissal statute). Thus, contrary provisions” the NOI pliance with the notice deprive my analysis defen would concern to Justice Markman’s provide, statutory designed procedure is the notice that dants provide with a 473-474, a defendant post failure to dismissal, tolling not that defendant still entitles sufficient NOI withstanding. unwary plain- “trap suggests that I create a Justice Markman Admittedly, plaintiff unable to re-file will be n 19. tiffs.” Post at 474 required. How- specifically, an NOI is those for which some claims— above, corporation not a ever, that is as I discussed notice; thus, NOI is facility” a defective is not entitled to “health Moreover, if that claim a defendant. inconsequential for such (d) tolling dismissed, statute tolling subsection afforded the notice plaintiff will not need to wait because the not rendered moot my interpre- complaint. reason that It is for this period re-file his conflict with MCL an irreconcilable not create tation does 600.2912b(6). Mich 397 Opinion Young, J. I tolling provision note that current is more 600.5856(c) precise on issue. MCL provides: repose any statutes limitations are tolled in following circumstances: (c) given compliance the time At notice is with the applicable period 2912b, during notice if under section that period by a claim would be barred the of statute limitations repose; case, longer but in this the statute is tolled not days equal days than the number of to the number of remaining period in the the date after given. [Emphasis added.] notice is by As highlighted text, indicated the significant the (c) distinction between current and subsection former (d) subsection is that the current provision restates (“the statute”), what specifies tolled which tolling is limited to one only statute while the former provision remained by unlimited the prefatory clause (“[t]he statutes”). (c) Thus, current is ex- subsection pressly specific claim and tolls “the statute” the previously referenced claim that would be barred.26 correctly my analysis Justice Markman states under of who must (c) my interpretation receive an NOI of current subsection tolling statute, plaintiff malpractice “the have to would file his medical against professional corporation action the filed a before he against physician, period action the if the of limitations expired days would have within 182 after the his served notice of physician.” Although procedure intent on n Post at 14. this seems unusual, authority question we are without the wisdom of the Legislature perceived problems. Cases, “fix” See State Tax Law (“[W]e (1884) 350, 360; supervisory power Mich 20 NW 493 have no respect legislation;... law-making power responsible is not to the judiciary acts, ..., impolitic for the wisdom of its however unwise or appear, they may legislature their acts as must stand law unless the has ....”). plainly overstepped authority Moreover,aplain its constitutional prohibited tiff bringing against principal is not from an action naming agent, Curry, 214, 223; without v Krolik 111 NW Opinion Young, J. to co- Here, NOI was sufficient plaintiffs (d) Murry.27 applied plaintiffs Subsection hmitations Murry period because the claim if the statute during period the notice expired would have Thus, given not tolled. “notice [was] of limitations was 2912b” for “a claim” that “would with section compliance limitations,” “[t]he statute of so [have been] barred I Accordingly, [were] of hmitations ... tolled.” statutes defen- and hold that Appeals would reverse Court to dismissal. dant Huron was entitled III. PLAINTIFF’S NOI WAS DEFICIENT. III(E) regard- MARKMAN’s dissent28 join part

I Justice an to address and resolve ing majority’s decision not to parties specifically that the directed issue were of an majority deprived parties address. The has of the suffi- argue to brief and merits opportunity such, the action ciency majority’s NOI. As follow our orders at suggests parties grant should should peril. their No serious court function fashion.

Although perti- not before Court nor properly analysis, analysis I my majority’s nent to address deficient that NOI because it will plaintiffs affect how lower courts evaluate an NOI. I believe likely majority’s NOI was deficient and the a shallow over the analysis gloss is no more than statutory text. Ctr, 294; (1907); 280, Al-Shimmari Med v Detroit 477 Mich 731 761 (2007); 2d, p 699, fully expect Agency, § Am 29 3 Jur and I

NW2d consolidated, 2.505(A)(2), see if the that such actions would be MCR agent proceeds against procedure. after the notice action 27 (On Remand), 279; App See 748 NW2d 599 28 post post join at 455 Specifically, at and nn & 23.1 also 476-478 Mich 397 Opinion by Young, J. stated, plaintiff As an must serve NOI before commencing a medical action (4) facility professional.29 health health In subsection statute, Legislature NOI has enumerated six specific topics must address in his NOI: given

The professional a health or health facility under this section shall a statement contain of at following: least all of the

(a) The basis for factual the claim.

(b) applicable practice alleged by The standard of or care the claimant.

(c) The manner which it is claimed that the practice standard of or care was breached the health facility. or health (d) alleged action that have been should taken to compliance alleged achieve with the practice standard of care.

(e) The manner in it alleged which is the breach of the practice standard proximate or care was the cause of the injury claimed in the notice.

(f) The of all professionals names health and health notifying facilities the claimant is under this section in relation to the claim. 2912b(l) (4)

“Subsections clearly place the burden of complying notice of requirements intent on the plaintiff.”30 II,

In Roberts this Court established the standard for whether an complied NOI with the statutory require- (4) ments of subsection of the NOI statute: “the claim- ant good-faith make averments provide details that are responsive to the information 600.2912b(l). I, supra Roberts 66. 447 Opinion Young, J. particularized that are as statute and by sought proceedings.”31 early stages is consistent is deficient. this standard not meet that does An NOI (a) provide requires plaintiff Subsection Here, claim.” for the factual basis “[t]he statement vicariously Huron that defendant alleged has plaintiff Dr. Murry, defendants agents, the acts of its liable Thus, “the Gary Augustyn. and Dr. McLeary, D. Richard predi- factual An essential liability. is vicarious claim” claim is that liability vicarious for plaintiffs cate employ- Huron’s defendants were individual suggest plaintiff does in the notice Nowhere ees. (or rela- principal-agent other

any employer-employee Because the defendants.32 existed between tionship) claim,” he for the factual basis “[t]he omitted plaintiff and, therefore, II standard meet the Roberts failed to the NOI is deficient. language [sub- there is “no holds that majority

The (4) a claimant to requires statute] the NOI section between the relationship the nature of set forth conclusion, support To its to be sued.”33 parties is found requirement that no such majority states (f).34 sufficient true, but no more That subsection is found requirement no such stating than (e). offers no discussion majority subsection (a) the claim” —and factual basis for “[t]he subsection — part is not relationship why principal-agent 31 II, supra at 701. Roberts II, required to “the claimant is not stated in Roberts As this Court required of All that was Id. at 691. her notice with omniscience.” craft relationship that served as good-faith averment of 701; II, claim, supra at liability Roberts for his vicarious factual basis employment relationship precise required to know the claimant was not 422 n 29. See ante at the defendants. between 33Ante at 421. at 421. Ante Mich by Opinion Young, J. the plaintiffs liability factual basis of vicarious claim. “necessary The that it is not to majority proclaims plead stated, here, facts supporting liability.”35 vicarious As liability. Thus, majority “the claim” is vicarious the has proudly necessary announced that it is not to state the likely factual basis for the claim.36This is a most relief to and plaintiffs anyone a shock to the Legislature who read the has NOI statute since it was enacted. The majority analysis cannot the text square its with of the statute, relevant so it not attempt folly. does such majority The its buttresses conclusion with its as subjective sessment defendant Huron’s knowledge: they “Certainly fully are aware of the legal relationship between them.”37 The on majority’s reliance the knowl edge of this defendant not a relevant assessment of Legislature required what the has to plaintiff provide in its NOI. plaintiff at 422 n 30.1 Ante do not contend that the must “state the ” phrase liability.’ legal theory. ‘vicarious Ante at 422 n is a 30. That Rather, plaintiff must “[t]he state factual basis the claim.” 600.2912b(4)(a). (4) majority The asserts that subsection the of NOI statute does not require plaintiff supporting liability to state facts a vicarious claim majority managed conjure way up because the has (4) Legislature phrased “could have” subsection of NOI statute. Ante Legislature required at 422 place judiciary n 30. The is not enacting Rather, policy obligation checkmate when its choices. it is our give Legislature... by “to discern and effect to intent of the examining language [because the] itself statute words of a provide Valley statute ‘the most reliable evidence of its intent....’” Sun Ward, 236; (1999), quoting

Foods Co v 596 NW2d 119 Turkette, 576, 593; 2524; v United States L US 101 S Ct 69 Ed 2d 246 majority meaning The offers no discussion of the of the words (a). actually majority why enacted subsection Nor does the state an part agent-principal relationship “[t]he is not factual basis” for liability majority vicarious claim. its desired reaches result using faulty analysis consequences and does so mindless of the of its rule flat. 37Ante at 421. Opinion Young, J. such a construction rejected previously Court This (4) reason: for an obvious statute of the NOI subsection com- procedure statutory it render would statute, in and unam- plain The NOI nugatory.38 pletely plaintiff on the terms, the burden biguous places that “con- this section”39 notice under “written provide Thus, the topics. specific of six a statement”40 taints] “fill in the defendant Legislature has Undeterred, replaces majority the blanks.” requirement with its own standards legislative complies in which the slope a slippery creates “I to the declaring went by simply statute NOI the ma- Under something happened.”41 bad doctor to fill in is on the defendant analysis, the burden jority’s NOI infor- missing but the remainder of the mation. significance comprehend

The fails to majority the case do not resolve its decision. Our decisions filed in rather, subsequently all cases us, but before issues; are to obligated similar we Michigan raising is in a manner that that all cases are resolved ensure statute.42 the text of the consistent with that never Consider, a defendant example, corporate for any of the other individual or worked with employed 38 II, supra 14. at 696 n See Roberts 39 600.2912b(l), person provides “a shall not that See MCL -which malpractice against a alleging health an action commence given facility person the health professional unless the has or health facility under this section not less health written notice days 182 before the action is commenced.” than 40 600.2912b(4). 41 II, supra n 15. Roberts at 697 42 Ass’n, 55, 66; 784 476 Mich 718 NW2d Cameron v Auto Club Ins See Cranch) (1 177; Madison, 137, (2006), Marbury 2 L Ed 60 citing v 5 US (1803) proposition to that “ours is declare what for the fundamental is, ought it to be.” law not what Mich 397 450 484 Opinion Young, J.

defendants listed —one that is named the NOI mistake an through or error. How does NOI fails to allege any relationship corporate between the defen- dant and the individual defendants inform that defen- dant factual for of the basis the claim it? The analysis to majority’s deprive threatens a named defen- procedure dant of the notice the statutory is provide. to designed a justification particular might

The knowledge statutorily have about data the to obligated supply just fancy way majority very least, subvert statute it does not like. At the is not majority pretending any longer enforce the plain language of the statute. NOI majority’s lack implications of concern for the its discussion is illustrated its treatment of Roberts majority II. The purports day leave for another whether II question correctly Roberts decided.43 quickly becoming practice Ante at 424 n 32. It is a new favored majority flag past challenges decisions of the decade and invite to those 156, 175 34; Shabahang, Bush v decisions. See 484 Mich n 772 NW2d 272 practice majority’s previous It is difficult to reconcile with the fidelity See, e.g., Gardner, People to stare claims decisis. v 482 Mich (2008) (“Our 87; J., dissenting) NW2d decision about (Kelly, guided by whether an earlier case must overruled be should be more than incorrectly decided.”); City notion that case was Pohutski Allen (2002) Park, 675, 712; J., dissenting) NW2d (Kelly, (“[I]f Court, believing reading past each successive its is correct and wrong, rejects readings precedent, year then the law will fluctuate from year, rendering jurisprudence unstable.”); dangerously Devillers, our (“Under (Weaver, J., supra dissenting) decisis, at 620 the doctrine of stare necessary judicial points it is to follow earlier decisions when same again litigation.”); Comm, arise Rowland v Washtenaw Co Rd (2007) (“Under 197, 278; J., dissenting) Mich 731 NW2d 41 (Cavanagh, decisis, deliberately principles stare doctrine of of law examined and by competent jurisdiction precedent decided a court of become and should circumstances, lightly departed. not be Absent rarest we should precedent.”); remain faithful established v Opinion by Young, J. Nevertheless, [Hu- it that “the issue is whether states comprehend be held to the nature reasonably could ron] asserted it.”44That standard being of the claims the Roberts II standard set out above. distinctly Indeed, the standard articu- that standard is similar to lated the dissent in Roberts II: “The statement must notice of a claim suffi- simply provide potential defendants to ascertain the potential cient to allow and enter into settlement discus- basis for the claim is inconsistent again, sions.”45 Once such view text. statutory disturbing This continues a trend which the ma- jority indirection, impression

overrules or at least leaves the so, thereby sowing doing it is the seeds of confusion making it difficult for the citizens of this state to comprehend requires. precisely what our caselaw This predecessors’ appears to be an unfortunate return to our past practice “frequently pa[ying] little attention to the (2003) Hawkins, 488, 517-518; People v 668 NW2d 602 (“ J., dissenting) precedents ‘We have overruled when the (Cavanagh, intervening developments of the law has “removed or weakened the underpinnings prior decision, conceptual from the or where the later law competing legal has rendered the decision irreconcilable with doctrines or policies.” changes compelling bearing Absent those evidence on intent, Congress’ original system our our demands we adhere to ”), prior interpretations quoting of statutes.’ Patterson McLean Credit (1989) (citations Union, 164, 173; 2363; S 105 L Ed 491 US 109 Ct 2d 132 omitted). Attacks, Berg, Hathaway Michigan Lawyers See also Todd C. Weekly, 27, 2008, quoted: Hathaway October in which Justice was “I Something drastically wrong believe in stare decisis. must be for the overrule.”; Lawyers’ Judge court to Election Guide: Diane Marie Hatha Lawyers Weekly, 30, 2006, way, Michigan October in which Justice position running Appeals, then for a on the Court of Hathaway, quoted: many appellate being by judicial decisions are decided “Too overturning precedent.” are activists who 44Ante at 425. J., II, supra dissenting). at 713-714 Roberts (Kelly, MICH397 Opinion Markman, J. among declin[ing] inconsistencies its cases and to reduce jurisprudence by overruling [the confusion in Court’s] conflicting decisions.”[46]

IV CONCLUSION I do not believe that defendant Huron is “health professional” facility” or “health entitled to notice and, therefore, under the NOI statute plaintiff was not required to serve defendant Huron an I with NOI. also that plaintiffs believe claim defendant Huron (d) tolled pursuant to subsection of the tolling Accordingly, statute. I would Ap- reverse Court of peals hold that defendant Huron entitled is not plaintiffs dismissal because of defective NOI. (concurring J. part dissenting in MAEKMAN, part). agree I with majority notice of intent was sufficient regard Kristyn with to defendant Murry and Valley that defendant Huron Radiology, EC. (HVR) was to a However, entitled notice of intent. I disagree that the notice of intent was sufficient with regard to HVR. The notice of intent did not contain a statement of “[t]he standard practice care alleged regard HVR, the claimant” with as is 600.2912b(4)(b). required by MCL As this Court ex- plained Roberts v Mecosta Co (After Gen Re- Hosp (2004) mand), 679, 693-694; 470 Mich 684 NW2d 711 (Roberts IT), a notice of intent must include a “particu- larized standard for each of the professionals and facili- notices,” ties named necessarily which must indicate “whether alleging [is] [the] defen- vicariously dants were or directly [the liable to plain- Beasley (2009) Michigan, v J., 483 Mich (Corrigan, Devillers, supra at 571 n 19. dissenting), quoting v Opinion by J. Markman, Because the notice of intent here did not include tiff].” statement, clearly such a it was defective regard HVR. held in Hosp,

We Roberts Mecosta Co Gen (2002) (Roberts 57; I), 642 NW2d 663 that a defective notice of intent does not toll the statute of limitations. in period Because the of limitations a medical malprac- years, 600.5805(6), tice action is two and because alleged malpractice 7, this case occurred on June 2001, and complaint 4, was not filed until November 2003, filed, the complaint untimely was and thus the action HVR is barred the statute of limita- tions. I would affirm portions of the Court of Appeals opinion that held that the notice of intent was sufficient Murry as to defendant and insufficient as to HVR, but portions reverse the of that opin- ion that held that the defective notice of intent tolled and, thus, statute of limitations that a dismissal prejudice appropriate. without The action against HVR should be dismissed with prejudice.

I. FACTS AND HISTORY The alleged 7, occurred on June 2001. Plaintiff alleges that Murry, radiologist working HVR, “failed to properly interpret and report back the true and correct results of the MRI....” He further alleges “[t]hat as a result delay surgical of the. . . [intervention, he] has suffered permanent neurologic injury 30, May deficit.” On just eight days before the expiration two-year period of limita- tions, plaintiff Murry served defendants and HVR with 4, 2003, a notice of intent to file suit. On November plaintiff filed his medical malpractice complaint against defendants. 484 MICH397

Opinion J. Markman, sum- The trial court denied defendants’ motion for reversed, Appeals The Court of con- mary disposition. affidavits of merit were cluding that because defective, complaint preju- had to be dismissed with 222; McLeary, App dice. Potter v 274 Mich 732 NW2d (2007). portion This Court reversed “the Appeals dismissing of the Court of the com- judgment prejudice, because the dismissal should have plaint prejudice been without as to the affidavit of merit (2007) McLeary, (empha- issue.” Potter v 480 Mich 915 original). sis We remanded to Court of remaining of defendants’ Appeals for consideration remand, Appeals issues. On the Court of held plaintiffs notice of intent was sufficient as to defendant However, Murry, but insufficient as to defendant HVR. the Court of held that the defective notice of Appeals limitations, intent tolled the statute of and thus dis- prejudice McLeary, missed without as to HVR. Potter v 279; 748 NW2d 599 App 136336, In plaintiff appealed portion Docket No. of the Court of decision that held that Appeals HVR, notice of intent defective as to and in Docket was 136339, Nos. 136338 and defendants appealed por- Appeals tion of the Court of decision that held that the defective notice of intent the statute limita- tolled tions, and, thus, that a prejudice dismissal without was appropriate, portion that held that the notice of intent sufficient as to defendant In Docket Murry. was 136336, granted No. we “limited plaintiffs application Valley Radiology, the issue whether defendant Huron EC., agency’ is a ‘health facility to which 600.2912b(l).” provide notice under MCL (2008). In 482 Mich 1004 Docket Nos. 136338 and 136339, we held defendants’ for leave to application abeyance the decision in Docket No. appeal pending v Opinion by Markman, J. (2008).1 136336. Subsequently, 756 NW2d 85 in Docket 136336, No. parties we directed the to file supplemental “whether, if addressing briefs a defendant professional corporation entity is not an to whom notice is required to 600.2912b, be provided under MCL statute limitations, 600.5805(6), MCL nonetheless subject 600.5856(d).” to statutory tolling provided in former MCL Mich II. STANDARDof review “Questions statutory interpretation questions are of law that this Court reviews de novo.” People 1 Despite abeyance, despite parties this the fact that the have not given opportunity argue been an to brief or the issues raised in defendants’ (Docket application appeal 136339), even, for leave to Nos. 136338 and given grant order, plaintiffs applica Court’s limited the issue raised in (the appeal sufficiency tion for HVR), leave to ofthe notice ofintent as to majority plaintiffs application addresses the issue raised and one of the (the application sufficiency issues raised in defendants’ of the notice of Murry), intent as denying and then announces that it is now defendants’ application. Only majority opinion because the addresses these issues in its today Contrary majority’s contention, do I also address these. to the ante at 409, parties argued sufficiency neither one of the of the notice of intent granted plaintiffs application in their briefs filed after this Court limited to issue, only plaintiff briefly a different sufficiency raised the issue arguments; say anything regarding oral defendants did not at all the issue (which expected given granted was to be that this Court had not leave on issue). “[djefendant majority The [HVR] contends that addressed the sufficiency extensively appeal.” of the NOI issue in its brief on Ante at 409 However, page states, n 8. one of defendant’s brief “This brief concerns the singular Appellee, HVR, pre-suit issue of whether is entitled to 600.2912b(l).” pursuant regarding mention thereafter sufficiency “procedural history” issue is in the section which defendant summary disposition. describes its bases for its motion for There is no sufficiency “Argument” discussion of the issue in defendant’s section of its Finally, contrary majority’s contention, brief. to the ante at 409 n prayer remaining defendant’s “askQ relief does not us to decide the plaintiffs application Instead, issues in appeal.” for leave to expressly “Plaintiff-Appellant’s Application Appeal states that For Leave To should be denied.” MICH

Opinion J. Markman, (2009). 1, 7; A trial 483 Mich 762 NW2d Swafford, summary regarding a motion for court’s determination disposition Wayne Co, de Odom v is also reviewed novo. 459, 466; 482 Mich 760 NW2d

III. ANALYSIS INTENT A. NOTICE OF agree majority I that HVR was entitled to majority concludes that HVR a notice of intent. a notice intent because “the action was entitled to sounding malpractice.” is one in medical Ante at 403. Although agree I the action here is “one sound- ing malpractice,” step in medical this is the first analysis whether a notice of to determine required. intent was 600.2912b(l) provides: section, person

Except provided as otherwise in this alleging an action shall not commence medical professional facility a health or health unless person given facility has the health or health days not less than 182 written notice under section before the action is commenced. 2912b(l) only applies alleging an “action

Because majority malpractice,” is correct that medical step analysis” “the first in the is to determine “alleging malprac- whether the action is one undisputed tice.” Ante at 414. It is action “allege[s] action, an because it an issue here such (1) pro- the course of a action occurred within (2) relationship poses questions fessional judgment outside the realm of common medical knowledge experience.” Corp, Kuznar v Raksha (2008), citing 169, 176-177; 750 NW2d 121 v Opinion by J. Markman, Ctr, Bryant Inc, v Villa Oakpointe Nursing Mich (2004).2 411, 422; 684 NW2d 864 However, despite majority’s recognition initial that whether this action is one “alleging medical mal- practice” only is the “first in the in step analysis” determining whether a notice of intent required, ante 414, majority does not address the second 2912b(l) Rather, step. it “[b]ecause § concludes that clearly requires a claimant to provide timely a NOI before a commencing action, medical malpractice plain- tiff was required provide this [professional corpora- NOI.” Ante at 419. timely However, tion] with a 2912b(l) (a) § requires a notice of only intent if: (b) medical malpractice”; “alleging action is one is a “health professional facility.” or health Despite this clear language, the majority does not address whether HVR is a “health professional or health facility.”3

Nevertheless, I believe that HVR is a “health profes sional” for the purposes of 2912b. I reach this conclu sion on the basis seeking hold HVR vicariously liable for employee’s its alleged malpractice and such employee unquestionably a “health profes sional.” In Cox v Flint Bd of Hosp Managers, 1, 11; (2002), 651 NW2d 356 explained this Court case, provided In unquestionably the instant the services were professional i.e., professional, services rendered a licensed health care radiologist, allege and thus the claims at issue here an action that relationship. agree occurred the course of a I with Justice Young “subject malpractice liability that HVR is to medical because a principal agent sued for the medical of its is sued in medical malpractice.” Ante at 433 n 5. 3 agree 440, 437, I Young, majority with Justice ante at that the errs in concluding simply that HVR is entitled to a notice of intent because “professional corporation” words can be found in I MCL 600.5838a. also him, agree facility” with ante at that HVR is not a “health because laboratory, hospital, home, nursing any type it is not a clinical other 333.20106(1). facility listed MCL 484 Mich 397 Opinion by Markman, J. principle liability,

under the of vicarious “the principal ‘is a practical liable because law creates iden- (Citation omitted.) tity [agents] with his Subse- (On quently, Remand), Nippa Hosp Gen Botsford 387, 391-392; (2003), 257 Mich App 668 NW2d 628 on remand in light from this Court for reconsideration Cox, Appeals explained: the Court of practical purposes hospital

For all stands in the (the doctors). agents of its shoes Thus, opine regard liability, we to vicarious medical-malpractice physician law to a is also applicable physician’s hospital.... procedural to the All requirements hospital are to the in the same [they to] manner and form as are the doctor .... This is so practical identity because the a law creates between a principal agent.... and an liability imposes legal

. . . Vicarious a fiction on defen hospital providing principal only dant that is liable practical identity because law creates a with its agents .... The sharing a single identity law treats the ... ^[4] principal and the agent Because, with regard liability, to vicarious “[t]he law treats the and the principal agent as a sharing single identity,” because, in case, the instant plaintiff is seeking vicariously to hold HVR liable for its employee’s alleged malpractice, and because such is un employee a questionably professional” “health entitled to a notice intent, the law treats HVR being as also a “health professional” entitled a Therefore, to notice of intent.4 Appeals After the Court of rendered its decision on remand from this Court, appeal. this Court denied leave to 469 Mich 1005 Young against Justice that concludes the action is a HVR medical malpractice plaintiff seeking vicariously action because is to hold HVR employees professional, hable for the actions of one of its who is a health liability determining but then overlooks vicarious in terms of whether malpractice HVR is entitled to a notice of intent. Because a medical Opinion Maekman, J. to a notice of intent provide to was plaintiff malpractice action commencing medical before HVR § 2912b. in accordance with

B. SUFFICIENCY 2912b(l) “a above, provides, person § discussed As alleging malprac- action medical not commence an shall facility or health a health tice “ entity person brought against ‘a who or holds be or is who action can professional, licensed care licensed or herself to be a health himself out facility facility agency, employee agent of a licensed health or or an or health assisting agency’ engaging care and is in or otherwise who 177, 600.5838a(l), treatment,” part Kuznar, quoting Mich at 5838a(l) Young’s § position Kuznar is inconsistent with either Justice Young Kuznar, is, internally pursuant That Justice it is inconsistent. professional” “health in order to conclude that HVR is a must determine however, action; malpractice he if were to determine that this is medical purposes concluding HVR professional” that HVR is a “health for malpractice, then also for he could not determine can be sued medical purposes concluding professional” for that HVR HVR is not a “health simply ways. It be both If HVR is entitled to a notice of intent. cannot not liability, subject a medical action on the basis vicarious liability. of intent the basis of vicarious HVR is entitled a notice on Young’s contention, Contrary concluding that HVR is to Justice ante seeking plaintiff professional” purposes of because a “health 2912b vicariously employees for the of one of its who is hold HVR liable actions unquestionably professional,” Kuznar’s “health is not inconsistent with pharmacy that case was a “health conclusion the defendant professional” seeking in Kuznar the to hold because vicariously employees pharmacy of its liable for actions of one who is, professional.” unquestionably not Kuznar involve a “health That did not here, dealing in which the kind of case that we are seeking vicariously for the of its to hold liable actions Indeed, professional.” employee, unquestionably Justice who “health See, Young’s prior example, position is Roberts inconsistent with caselaw. II, 693, I, at in which this Court held 466 Mich at and Roberts Mich (in by thoughtful opinions Young) that because the authored Justice corporation, professional notice of was defective intent as to Why it matter notice of was not tolled. would that the the statute limitations professional corporation professional if a of intent was defective as to place? in the corporation is never entitled to a notice of intent first 484 MICH397 OpinionbyMarkman,J. person given professional unless the has the health facility health written notice under this section not less (Em- days than 182 before action is commenced.” added.) 600.2912b(4) phasis provides: given professional The notice to a health or health facility under this section shall contain a statement atof following: least all of the

(a) The factual basis for the claim. (b) applicable practice The standard alleged or care of the claimant.

(c)The manner in which it is claimed that the practice standard or care was breached the health facility. or health (d) alleged action that should have been taken compliance achieve alleged practice with the standard of care. (e) The alleged manner in which it is the breach practice proximate standard of or care was the cause of the

injury claimed in the notice. (f) professionals The names of all health and health notifying facilities the claimant is under this section in [Emphasis relation to the claim. added.] II, In Roberts 700-701, this Court ex- plained: 600.2912b(4), Under MCL a medical claim- required

ant is provide potential defendants with notice statutorily includes “statement” of each of the categories Although enumerated of information. it is rea- expect sonable particulars that some of the supplied by information the claimant will evolve as discov- ery litigation proceed, the claimant is ... provide responsive details that are to the information sought by the particularized statute and that are as isas early stage consistent with the proceed- ings. .. This is . not an onerous all task: the claimant must specify do is what it is that claiming she is under each Opinion Markman, J. (4). Although § there is categories in the 2912b enumerated must set in which a claimant no method or format one must, information, that information the forth nevertheless, in an specifically identified ascertainable be original.] [Emphasis in the notice. manner within the malprac- a medical II, brought the plaintiff In Roberts corpora- hospital, professional tice action assistant, and an obstetrician, a tion, physician’s an Court held the room This emergency physician. of care that specific must “aver the standard plaintiff applicable particular be to each claiming she is to is facility that named the notice.” Id. or professional notice original). in the Because the of (emphasis at 692 plaintiff alleg- to indicate whether “fail[ed] intent and ing hospital professional [the that these defendants her,” vicariously directly liable corporation] were “a stan- allege the notice of intent failed facili- to the defendant specifically applicable dard reason, II For Roberts held ties . ...” Id. 693. to the notice intent was insufficient as cor- hospital defendant poration. case, similarly held Appeals

In the instant the Court of as to HVK notice of intent was insufficient practice did not state the standard because it (b).61 2912b(4) through agree. § required by is or care as completely fails to indicate what notice of intent appli- or care believes practice plaintiff standard satisfy Murry argues that the of intent does not Defendant (d). 2912b(4)(b) agree through Although requirements § I forth in set majority that notice of is sufficient as to defendant with the intent Murry, say agree majority’s analysis because it I cannot that I satisfy my judgment, does provides In notice of intent none. 2912b(4)(b) states, required Dr.[] “The it standard care because Murry... correctly read, interpret report the correct results addition, emergency the notice of intent under the circumstances.” In room (d) 2912b(4)(c) Murry satisfy § it states that defendant does because Mich Opinion Markman, J. HVR,

cable to defendant and it does indicate alleging whether that defendant HVR is directly vicariously Indeed, liable to him. held,

Court of Appeals “[t]he standard of care com- pletely any fails to make reference Huron to defendant Valley Radiology.” Potter, fact, at In App 284. the notice of intent as a whole only references HVR the twice: once on first where it lists page the health professionals care and entities to whom the notice of intent again intended to and then apply, on the last page, where it lists the health care professionals entities being notified of action. the Because the notice of intent does contain statement indicating what standard of practice or care is allegedly applicable to HVR, (4) required § as is I (b), agree 2912b with the Court of Appeals that notice the of intent is insufficient toas defendant HVR. Although the majority “question[s] whether Roberts correctly decided,”

II was n 32, ante at 424 it does not expressly overrule II Roberts it because concludes that this decision is not “dispositive.” It is not dispositive, properly interpret "failed images convey to MRI the accurate emergency physicians charge information to patient the room night.” that 7 Specifically, majority “question[s] the whether Roberts II cor was rectly requirement it language decidedbecause adds a not found in the ” statute; namely, ‘particularized.’ the that be statements 424 n Ante at 2912b(l) Despite requires clearly § 32. the fact then that a notice of 2912b(4) defendant, intent to clearly § be sent to each requires statements, majority notice of intent contain apparently certain prefer would to conclude that the notice of intent is not contain each of example, these statements as to each For defendant. majority apparently plaintiff would if hold that sues both a nurse and physician malpractice, long for their own direct as as the notice of required “applicable practice intent contains the standard of care or nurse, statement” as to the the notice would be sufficient as physician Fortunately, majority as well. leaves this issue for another day, hopefully one that will not arrive soon. Opinion J. Markman, opined II that because “Roberts majority, says regard confusion with whether because there was liability, the [profes- direct or vicarious claim was for understand the na- corporation] was unable to sional but, asserted,” “[i]n the case being ture of claims us, . . . potential for confusion exists before no such held; First, II n 32. is not what Roberts Ante rather, 693, 702, Mich at held, it because include a of intent did not statement these “indicating] plaintiff alleging whether her,” vicariously directly liable to or defendants were obligation fulfill under did not her “plaintiff II, a Second, . “potential . . .” Roberts 2912b 424 n exist here because confusion,” ante at does either could sued on the basis of direct HVR be both, and the notice intent does liability, vicarious basis intended to sue not indicate on which HVR.

Furthermore, a situation that Roberts II involved implied intent have that the may the notice of which directly the defendants seeking was hold plaintiff liable, plaintiff that the was complaint implied while the liable, vicariously the defendants seeking hold implied case can be from nothing the instant whereas direct or regarding of intent vicarious plaintiffs notice to hold HVR vicari- liability, complaint while the seeks liable, any signifi- without ously utterly is a distinction the notice cance in case. The issue here is whether Being professional as to intent was sufficient HVR. of the basis either could be sued on of HVR corporation, Cox, See Mich liability. direct or vicarious liability 1) hospital may directly be liable “[a] that stating through negligence super- malpractice, claims of as selection and reten- physicians of staff well vision 2) staff, vicariously the of medical or liable for tion 600.2912b(4)(b) requires of negligence agents.” its “[t]he to contain a statement of the notice of intent [July- MICH Opinion by Markman, J. practice standard of or care alleged by the Obviously, claimant.” the “applicable prac- standard of tice care” depend would on whether the claimant is professional the on suing corporation of basis direct liability or liability. Accordingly, vicarious a notice of must intent indicate whether the claimant suing is professional corporation on the basis of liability, direct liability, vicarious both. majority

The holds that liability “when vicarious is asserted,” claim it unnecessary “specifi- is cally legal set forth theory of liability vicarious within the However, [notice intent].” Ante at 422. if intent does not indicate that the plaintiff is planning on suing corpora- tion on the basis liability, vicarious how will the defendant know that liability “vicarious the only claim asserted”? The majority fails to recognize point whole of the exercise of a notice of intent is to apprise defendant of the claims plaintiff plans bring a complaint Here, is filed. because before the notice of intent was silent the subject, on HVR did not know until plaintiff filed complaint plaintiff his suing was on the basis of vicarious liability. is, That HVR did not know what of practice “standard or care” plaintiff was alleging that HVR plaintiff breached until filed complaint against his HVR. This is clearly most 2912b(4)(b).8 §of violation majority concludes that HVR’s claim that notice of intent was defective it because did not indicate whether planning suing on on liability HVR the basis of direct or vicarious “troubling” “openly knowing because understanding HVR admits vicariously employee, Murry.” that it is for the liable its Dr. actions

Ante “troubling” majority at 423. What I to be find instead is the that (a) ignores significant knowing the distinction between and understand ing corporation a may vicariously that held be liable for the (b) employees; knowing of understanding actions its that planning bringing is against profes- someone on a of cause action the v by Opinion Markman, J. to Contrary the issue. majority misunderstands The contention, 425, is whether at the issue ante its the comprehend reasonably be held “could HVR Instead, being against asserted it.” of the claims nature 446-447, is the issue explains, ante at as Justice YOUNG “ that intent details (provide[s] the notice of whether stat sought by information the to the responsive are 446-447, II, 470 Roberts quoting ....’” Ante at ute original). specifi the More (emphasis Mich at 701 the notice of intent issue here is whether cally, the of standard “[t]he a statement of contains claimant,” the as is practice alleged or care 2912b(4)(b). Mich Ctr, Med Borgess § Boodt (2008) the 560-561; (“Although 558, 751 NW2d may conceivably apprised notice intent have instant of gravamen nature and the [defendant] standard; statutory is not the allegations, this more.”). 2912b(4)[b] the something § Because requires a state intent at issue here did not contain notice of care” practice standard of ment of the “applicable HVR, comply the intent did not regard with notice of 2912b(4)(b). § with vicariously corporation corporation for the hold that liable sional majority erroneously equates knowledge employees. of its actions potential liability knowledge of an imminent lawsuit. with Although parties nor courts neither the the lower addressed majority “require!] issue, § does not a claimant concludes 2912b parties relationship to be sued.” forth nature of the between set majority, agree at 421 n that the 421. While I ante Ante at i.e., “precise relationship,” allege need not nature notice employment relationship [profes is an with the whether there “actual arrangement,” complex independent corporation] contractor sional or... a 2912b(4)(a) require majority recognize notice of fails to does ” case, the “factual for the claim. In this to contain statement of basis intent multiple multiple professional corporations, physicians, sued %t, plaintiff’s hospital. of intent includes “factual basis nowhere is, does indicate That notice of intent not even the claim” HVR. Murry being sued is because HVR where that the reason HVR malpractice. alleged Because working during the time Mich 397 Opinion by Markman, J. c. TOLLING The of in period limitations 600.5805(6). years. cases is MCL two At the time the case, in complaint 600.5856, was filed this MCL pertinent part, provided: repose

The statutes of limitations or are tolled: (d) If, during applicable period the notice under section 2912b, claim be the would barred statute limitations repose, longer equal for days than a number of to the days period number in the notice after the given compliance date with section 2912b. [Emphasis added.][10] 2912b(4)(a) § requires notice of intent to include the “factual basis claim,” and the notice of intent here at issue did not include the fact Murry working alleged malpractice, at HVR at the time of the which, indeed, important is one of the most facts in a case in which liability, agree claim on is based vicarious also with Justice ante Young, I 447, 2912b(4)(a): satisfy § notice of fails intent Contrary 29, majority, summarily naming to the ante at 422 n “Huron Valley Radiology physicians well as three individual and ‘their ” employees agents, ostensible, actual or thereof in the notice of intent does not what indicate the “factual for the I basis claim” is. Because satisfy requirements believe that the notice of intent does not set 2912b(4)(a) (b), §in forth there need is no to address whether requirements (4), notice of § intent satisfies the other of 2912b 2912b(4)(a) only respond § reason that I even address is to to the 2912b(4) majority’s § “require!] incorrect conclusion that does not relationship parties claimant to set forth the nature of the between the

be sued.” Ante at 421. Legislature However, plain § has since amended 5856. because (on 2003) complaint 4, tiffs was filed November before effective date 22, (April 2004), this amendment it no has effect on the instant case. 87, 1(1) (“[T]his enacting amendatory applies See 2004 PA section act act.”). amendatory civil actions filed on or after the date of effective 5856, § Shabahang, For discussion of the amended version of see Bush v 156, 189-193; (Markman, J., dissenting). 772 NW2d 272 Opinion Markman, J. “the held that 59, this Court I, 466 Mich at In Roberts under be tolled limitations cannot statute of all 600.5856(d) compliance given unless notice 7, 466 As Roberts of MCL 600.2912b.”11 the provisions 5856(d) clearly provides “Section explained, Mich at “As a .. . .” with 2912b compliant must be that notice limitations is avail- result, tolling of the statute included requirements if all the a plaintiff able to 2912b(4) that the states §in 2912b are met.” Section at least all a statement of “shall contain notice of intent added.) The term (Emphasis . . .” following. discretion- rather than mandatory, a “denote[s] “shall” “all” at The term I, 466 Mich 65. ary action.” Roberts of the statements every and one that each exemplifies (f) 2912b(4)(a) contained through must be by § required of intent Therefore, only a notice notice of intent. in the the 2912b” tolls “in with section compliance that is must a notice of intent limitations and statute of (a) §by 2912b required of the statements contain all (f) section compliance “in with in order to be through 2912b.”

Because, earlier, notice of intent as discussed the the statements this case does not contain (b) (4)(a) HVR, it is not “in regard § 2912b with the notice of 2912b.” Because with section compliance 2912b,” the “in section compliance intent is not with limitations. toll the statute of of intent does not notice in medical limitations period And the of because 600.5805(6), and years, MCL action is two 7, on June in this case occurred alleged malpractice the 4, not filed until November 2001, the was complaint 11 unanimously even the portion decided with of Roberts I was This begin tolling of justices agreeing of the .. . statute dissenting that “to fully comply requirements limitations, of MCL plaintiff must with delivery provision of the notice statute Compliance 600.2912b. with J., dissenting). I, 466 Mich at 72 is insufficient.” Roberts alone (Kelly,

468 Mich Opinion by Markman, J. 2003, complaint untimely filed, the action HVR is against barred statute limitations. Therefore, the action HVR be should dismissed prejudice. with Appeals Kirkaldy Rim,

The Court of relied on 581; (2007), Mich 734 NW2d 201 its conclu- support sion that a defective notice intent tolls the statute of limitations, and prejudice thus a dismissal without is However, this case appropriate. significantly distin- In guishable from Mich Kirkaldy. Kirkaldy, held filing complaint Court of a and a defective affidavit of merit tolls the statute of limita- tions until of merit successfully affidavit chal- lenged. This is so nothing 600.5856(a), because in MCL tolling which provides upon filing of a com- 600.2912d, plaint,12 or which an requires affidavit of merit be filed with a limits complaint,13 tolling to an is in compliance affidavit with 2912d. How- 5856(d) ever, § tolling does limit of intent compliance is “in section Therefore, 2912b.” provides, pertinent The part: amended version of MCL 600.5856 repose any statutes limitations are tolled following circumstances: (a) filed, complaint copy At the time the is of if a the summons complaint and are the served on defendant the time within set supreme forth in the court rules. 600.2912d(l) provides, pertinent part: plaintiff alleging malpractice or, [T]he in an action if represented attorney, by plaintiffs attorney the an the complaint signed by shall file the an affidavit with of merit plaintiffs reasonably attorney health the who be- requirements expert lieves the for an [MCL meets witness under certify 600.2169]. The affidavit of merit shall that the health professional has reviewed the notice and all medical records supplied by him attorney concerning or her allegations contained in the notice shall contain statement of following.... each of the J. Opinion Maekman, a defective affidavit complaint of a filing while limitations, serving may merit toll the statute of of intent of does not. of a defective notice limita- the statute of YOUNG contends that Justice because, although regard tolled to HVR tions was HVR, as to it was notice of intent was insufficient is, That he concludes Murry. as sufficient as to one of long as a notice of intent is sufficient that limitations defendants, of is tolled as the statute disagree. I respectfully of the defendants. all above, § at the of the provided discussed time As in pertinent part: filing complaint, repose are tolled: The statutes of limitations (d) during applicable period If notice under section 2912b, of a claim would be barred the statute limitations days equal longer to the repose, for not than number days period number of in the notice after compliance with section 2912b. given date [Emphasis added.] 5856 does indicate that

Justice YOUNG is correct be “more than one statute limitations can if .. . .” 442. For defen- example, multiple tolled Ante at all dants receive a notice of intent that is sufficient as to them, all of statutes limitations tolled. their are However, “more one this does not mean that than Obviously, if always statute of limitations” is tolled. defendant, limita- only only one statute of there is one tolled, and a conclusion is not tions would be such in § 5856 to the “statutes of contrary the reference 8.3b, “every provides limitations.” See MCL which may be number importing plural applied word Similarly, concluding to the singular limited number.” limita- a notice of intent tolls the statute of Mich 397 Opinion Markman, J. applies tions the defendant who has actually intent, a received sufficient notice of but not the statute applies of limitations that to the defendant who has not notice, such a received is also not with the inconsistent § reference in 5856 to the “statutes of limitations.” Further, such a conclusion is by the reference 5856(d) §in to “the notice under period 2912b,” section and “the applicable notice period after given the date notice in compliance section 2912b,” because there is “applicable period no 2912b,” section if under the notice of intent not “in compliance with section 2912b.” earlier, states, §

As discussed 2912b in pertinent part: (1) section, Except provided as otherwise in this person shall not alleging commence an action malpractice against professional facility health or health person given professional unless the has the health facility health written notice under this section not less days than before the action is commenced.

(4) given The notice to a health or health facility under this section shall contain a statement at following least all of the ....

Accordingly, as this Court I, held in Roberts Mich 64, a notice of intent tolls statute of limitations if the notice contains all the required by statements 2912b(4). § addition, In as this Court held in II, Roberts at 692, the notice of intent must all contain (4) required by § statements 2912b as “each particular [defendant] named in (Emphasis notice.” added.) is, That the notice of intent only tolls the statute of limitations to each if particular defendant the notice all contains the statements required by 2912b(4) particular Thus, as to each if defendant. Opinion Markman, J. as all the statements of intent contains notice not all but does contain the physician, the defendant professional defendant the required statements only of limitations be the statute would corporation, a notice “in because physician tolled as to the defendant has not been served on section 2912b” compliance with and thus there professional corporation the defendant toas the defendant period” is no notice “applicable corporation. professional 5856(d)’s contention, §

Contrary to Justice YOUNG’s the “a claim” does not alter outcome.14 reference to To which claim” must be read context. language “a 5856(d) 5856(d) § is referring? § When read “claim” is it is it clear that the “claim” to which entirety, in its by be barred the referring is the “claim” “would the notice “during applicable statute of limitations” However, “a claim” would section 2912b.” period under Young claim,” language Although relies on the “a same Justice recognizes yet § language he is found in the amended version of that, version, intent be the of has to sufficient under the amended notice to toll of limitations. See as to all the defendants in order all their statutes light professional corporation that ante at 443-444. In of his view that a intent, facility” a notice is not a “health is not entitled to of combined § the his that the amended version of 5856 tolls statute of with view intent, if the has a sufficient notice limitations defendant received Young apparently a intent that is Justice would conclude that notice of physician the would toll the statute limita sufficient as to defendant physician, not the tions as to the defendant but would toll statute of view, professional corporation. Under this as to the defendant limitations physician plaintiff the a notice of would have to serve defendant against days physician, the but intent and wait 182 to file suit against go plaintiff the defendant the would have to ahead and file suit period expired professional corporation before the of limitations as to corporation corporation not be to notice of since the would entitled Therefore, tolling. plaintiff have file his the would medical intent corporation malpractice against he action before filed period against physician, if of limita action expired days after the served his tions would have within physician. notice of intent on 484 Mich 397 Opinion by Markman, J.

not be “barred “during the statute of limitations” the applicable period notice under section 2912b” where yet sufficient notice intent had not been served upon the defendant. a sufficient Where notice of intent had yet defendant, been upon served there would be no “applicable period notice under section and, thus, 2912b” no there would be claim that would be “barred statute limitations” “during applicable period.”15 notice I Because believe that “a 5856(d) claim” in referring “a claim” that would be “barred by the statute of “during limitations” applicable period,” notice and the claim HVR would not have been “barred by the statute of limita- (because tions” “during period” there was no notice “applicable period”), I conclude that the statute of limitations was not tolled to plaintiffs as claim against HVR.16 Young’s

Moreover, under analysis, although Justice HVR not is even entitled a of to notice intent it because is a professional corporation, he would hold that under 5856(d) § a notice of intent that does not comply with § 2912b tolls the of applicable statute limitations to point, my dissenting For further opinion discussion of this see Bush, 484 Mich at 192-193. Young restricting Justice concludes that “there is no textual basis for tolling single However, interpre to a claim.” Ante at 442-443. under his tation, tolling there would seem also to be no limit basis to to those relating claims to the action. In other words, the statutes for of limitations all claims all defendants in Michigan long plaintiff would seem to be proper tolled as one files a hardly notice of intent with one defendant. This could have been the Young’s Legislature. Contrary contention, intent of the to Justice ante at (d) 24, 443 n treating tolling there is a “textual basis for subsection of the (a) (c) differently through statute tolling than subsection statute.” is, (a) above, (d), That through as discussed subsection unlike subsections (c), tolling [that] limits to “a claim would be barred statute “during period” limitations” notice if it were not given compliance [that] “notice is with section 2912b.” Opinion by Markman, J. is HVR not that, although is, he concludes HVR. That gets the intent, still plaintiff a notice of entitled to conclusion, This tolling. of intent of notice benefit of a notice of is denied the benefit defendant which the benefit of an intent, is afforded the plaintiff and yet inconsis- limitations, illogical and is extended period providing The whole reason for statute.17 tent with the compensate tolling notice of intent plaintiff a with intent 182 he must file a notice of fact that or she for the however, a If, plaintiff filing complaint. days before then wait 182 a notice of intent and does not have file why plaintiff should the filing complaint, days before file the com- days 182 more in which to be afforded plaint? “majority’s analysis

Justice YOUNG observes that statutory procedure threatens to render undermines, overrules, if this Court’s nugatory and not it “threatens ante at and that precedent,” that named of the notice deprive a ante at 450. designed provide,” statutory procedure observations, I Although agree I with these believe Young’s said of Justice own the same can be possibly intent analysis.18 He concludes that a notice of that is of limi- sufficient as to one defendant tolls statute defendants, regardless all the of how defec- tations for comply reason a notice of not For the same intent does limitations, toll the a notice of intent that is 2912b does not statute is, required by § 2912b not toll the statute limitations. That does is not if a a defendant with notice of intent that serves 2912b,” by 2912b, “given compliance § is not in with section the notice days complaint, i.e., plaintiff have 182 file his or her does not to wait to 2912b,” period “applicable section and thus there is no notice under 5856(d) tolling applicable. § not notice of intent under is Young’s analysis regard tolling saving grace to is of Justice with apparently only apply § to the former version of 5856 that that it would applicable issue, to all the version that is actions is at not to amended 22, April ante at filed after 2004. See 444. 484 Mich Opinion by Markman, J.

tive the notice of intent is as to these other defendants other whether these defendants were to even entitled is, a of place. although notice intent the first That 2912b(4) § clearly and Roberts II require plaintiff to the provide all defendants with a notice of intent is that 5856(d) each, § sufficient as to and although and Rob- clearly erts I limit to notices that tolling “given are compliance 2912b,” with section Justice YOUNG con- that a clearly cludes notice of intent that is “in compliance multiple with section 2912b” as to defen- dants tolls nevertheless the statute of to limitations as these defendants as long at least one is defendant given a notice “in of intent that is compliance with section 2912b.” How are other defendants to receive the statutory “notice the procedure designed provide”?19 Young plaintiffs provide Justice contends that “a failure to a with a [notice intent] defendant sufficient of still entitles that defendant dismissal, tolling notwithstanding.” However, Ante 443 n 25. interpretation trap unwary plaintiffs would seem to create because 600.2912b(6) prohibits “tacking addition successive 182-dayperiods explained Mayberry ....” As this Court v Gen Ortho

pedics, PC, 2912b(6) 3; (2005), 704 NW2d 69 “Section prohibits plaintiff giving presuit from multiple notice to a defendant tolling multiple periods times in order to initiate repeatedly extend period Accordingly, of limitations.” if a notice that was filed within days period before the expired of limitations would have physician sufficient as to the defendant but defective as hospital both, tolls the requires § statute of limitations as to and 2912b (as hospital notice), dismissal as to the a result of the defective plaintiffs hospital next notice sent to the would not toll statute of (as 2912b[6]), limitations result and thus the action against hospital would then be barred statute limitations (since way plaintiff there would be no for the file a sufficient notice and days then wait 182 hospital to file suit without benefit 182-day tolling is, period). gives another Young That what Justice (defective tolls), away one hand notice he takes with the other hand (defective refile). requires Assuming dismissal cannot response Young’s that Justice original to this conundrum is that the complaint hospital, tolls the statute of limitations to the under 475 POTTER V MCLEARY Opinion Markman, J. AMENDMENTS

D. RETROACTIVE issue this does address Although majority the suffi- intent the notice of it concludes that because 44; n 156, 181 cient, Shabahang, in Bush v that, (2009), majority concludes 272 NW2d simply 600.2301, a can plaintiff to MCL pursuant intent and amendment defective notice of such amend a of the original [notice to the time that will “relate back can alternatively courts mailed” or intent] notice of or defect” in the “disregard any error simply at Bush, 484 Mich I See respectfully disagree. intent. pro- J., dissenting). MCL 600.2301 194-195 (MARKMAN, vides: proceeding pending, any in or

The court which action any process, pleading proceeding or power to amend has substance, proceeding, either form or such action or just, any justice, terms on such as are the furtherance every judgment therein. The court at time before rendered disregard any error stage proceeding or shall of the action proceedings not affect in the which do or defect [Emphasis rights parties. added.] substantial 4,n Boodt, 481 at 563 As Mich explained this Court As discussed only applies “§ actions.” pending 2912b(l) com- “a shall not above, provides, person § alleging mence an action facility person health unless professional

health or 5856(a) hospi- (although against the complaint § has been dismissed tal), plaintiff have in which a would he then create a situation would complies § absolutely 2912b as incentive to file a notice that with no any long notice that hospital other as he files a defendant, complies the statute 2912b as to one because indefinitely by complaint that presumably be tolled limitations would apparently an have has dismissed. The would then not been to refile period file a notice and unlimited of time in which to sufficient (or remaining all the complaint against the defendants at least until adjudicated). were dismissed otherwise claims Mich Opinion by Markman, J. given facility has the health or health written notice under section not less than 182 days before the added.) (Emphasis action is commenced.” Section 2912b(4) given states that the “notice to a health profes- facility sional or health under this section shall contain statement of at least all the following ....” (Emphasis added.) Therefore, explained Boodt, as we in 481 atMich 562-563, “a plaintiff an cannot commence action before he or she files a notice of intent that contains all the infor- 2912b(4).”20 § mation under required plaintiffs Because notice of intent here did not contain all the information (4) required HVR, § under as plaintiff 2912b could not have commenced a malpractice medical action against Therefore, § HVR.21 2301 is inapplicable, and retroactively cannot the amend notice of intent and the any courts cannot “disregard in error defect” notice of intent.

E. MAJORITYPROCEDURES in As noted n 1 of opinion, the majority addresses issues that are not even before In properly it. Docket 136336, No. plaintiff appealed portion of the Court of Appeals decision that held that the notice of intent HVR, was defective as to and Docket Nos. 136338 and 20 Boodt, my dissenting Bush, For further opinion discussion of see 195, 484 Mich at 199-200. 21 Bush, 26, majority In 484 170 n Mich mischaracterized Boodt holding tolling presence that no “because was afforded in the of a defect pursuant 5856(d), plaintiffs §to action was not commenced under 2912b(l).” However, § tolling prevented it was not the lack of plaintiffs commencing, action from it was the lack of a notice of intent in 2912b(l) (4) (“[A] compliance § person with 2912b. See shall not alleging person commence an action ... unless the given . has . . notice [that] contain[s] written . . . statement at least .”). following... all of the 477 Opinion by Markman, J. decision portion 136339, appealed defendants notice intent tolled held that defective without limitations, thus that dismissal statute that held portion and the appropriate, was prejudice sufficient as to the notice of intent was 136336, granted plaintiffs we In Docket No. Murry. issue whether defendant “limited to the application EC., facility is a Valley Radiology, ‘health Huron notice a plaintiff required provide agency’ to which (em- (2008) 600.2912b(l).” Mich MCL under added). 136339, In we Docket Nos. phasis in abeyance application held defendants’ (2008). Subsequently, 756 NW2d application. file briefs parties directed No. we Docket corpo- “whether, if a defendant addressing to be an to whom entity ration is not 600.2912b, the statute under MCL provided limitations, 600.5805(6), MCL sub- nonetheless in former ject statutory tolling provided 600.5856(d).” never However, we Mich 922 to of the notice sufficiency address the parties asked the result, the Murry. or As a of intent as to either HVR See not, fact, argue these issues. parties did brief opinion. n 1 of this had the the have not

Thus, parties fact that despite issues, and, argue to brief or these opportunity an indeed, regarding the issue despite fact Murry as to the notice of intent defendant sufficiency of formally majority nonetheless obeyed, has been Roberts implicitly addresses these issues and overrules majority overrules process.22 implicitly II in the by utes of emergency Internal ^[22] five “The Court the Conference on Administrative Justices, Rules, July circumstances warrant shall not except 24, 2003. The issue where a any peremptory majority the issuance of such an order.” majority violates Matters, of Justices order unless this rule Item conclude by reversing 2, 2003-31, it is signed Min- 478 Mich 397 by Opinion J. Makkman, (a) holdings: II follow refusing Roberts its that a notice of intent the plaintiff must indicate whether hold seeking the defendant corporation liable, vicariously directly and instead holding that as long only as the going to sue defendant on liability the basis of it vicarious does have to (b) intent; indicate this notice notice of intent must contain all statements 2912b(4), holding instead that a notice intent is long sufficient as as the defendant “could reasonably be comprehend held to the nature of the being claims asserted it.” majority Ante 425. The does this without so much as a mention of stare decisis. What happened to the Michigan “[t]he view that Supreme Court precedent.. should not alter the . without first hearing argument oral and inviting briefing on it”? Scott v State Farm Co, Mut Auto Ins 482 Mich (2008) (KELLY, J., 1076-1077 dissenting). Wfiiat hap- pened to by “fail[ing] the view that comprehend how the skilled advocates in this case could have added anything insightful in the debate over the proper inter- pretation . . precedent. of. . . the majority undermines the foundations of our adversarial system”? Mack v Detroit, (2002) 186, 223; 467 Mich NW2d (CAVANAGH, J., dissenting). Apparently, these views are pertinent precedents where which majority agrees are at stake.23 Appeals sufficiency Court of on the issue of of the of intent briefing argument, as to HVR without or oral and without the votes, requisite because, although five this issue raised in application appeal, granted appeal only for leave to we leave to a different issue. subject majority For further discussion on the and stare decisis (2009) Magna Corp, 300, 388-396; see Petersen v 773 NW2d 564 dissenting), Comm, and Rowland Co Rd Washtenaw (Makkman, J., (2007) 197, 223-247; Mich 731 41 concurring). NW2d (Markman, J., v 479 Opinion Maekman, J. opin- majority with the my To concerns summarize precedent regard in this case Increasingly, for evidenced the same majority, opinion, hy of this has been II see 462-463 towards Roberts precedents: they are other disfavored inconvenient reflected toward e.g., phenomenon, Vanslem simply ignored. see For illustrations (2009), majority Halperin, 965 in which the new brouck v 483 Mich 243, 244; Hosps, ignored Vega 479 736 NW2d 561 v Lakeland Mich PC, (2009), (2007); Services, Saginaw Mich 918 v Vascular 483 Hardacre 558; Boodt, Shepherd v Bar 481 Mich Sazima in which it failed follow (2009), Chrysler Restaurant, it failed follow 483 Mich 924 in which & (1940), Lines, 606; Transport 295 Mich 295 NW 331 v Blue Arrow 471; Remand), (After Mich 592 v Dist 459 Camburn Northwest School Holbrook, (2009), (1999); it Mich 970 in which Juarez v 483 NW2d 46 519; (2008); Khouri, 751 472 481 Mich failed to follow Smith v NW2d (2009), majority Beasley Michigan, in which the failed to 483 Mich 1025 Comm, 197; Rd Mich 731 NW2d 41 follow v Washtenaw Co Rowland (2009), (2007); Co, in Mut Auto Ins 483 Mich 1032 Scott v State Farm Co, majority 425 Mich to enforce Thornton v Allstate Ins which the failed Corp 643; (1986), Ins and Putkamer v Transamerica 391 NW2d Wayne 626; (1997); America, and Chambers v Co 454 Mich NW2d (2009), Auth, majority again Airport failed to 483 Mich which the abide Rowland. Kelly the Court has that “the accusation that Chief Justice contends ignoring precedent been incorrect.” Ante at 429. As Justice CORRIGAN is J., dissenting), Beasley, (CORRIGAN, explained 1029-1030 response to this same contention: Kelly majori- away attempts explain the new Chief Justice ty’s prior hy sharing regarding her views caselaw actions majority ignore. Justice chosen to But Chief new has otherwise Kelly’s prior interpretation concurring is of a case in a statement importantly, argument her a decision the Court. More problem: majority’s the new continu- overlooks the fundamental disregard ing explain apparent its of this Court’s failure precedent stability predictability and of the rule of undermines the law. majority reasons [T]he new offers no articulable whatsoever Instead, majority apparent stare its detours from decisis. and, so, why overruling explain if declines to whether — —it appearance doing it precedent despite that it so. If the obvious decisions, legal principles in this Court’s intends to alter embedded clearly majority explain then new should its reasons 397 MICH by Opinion Markman, J. (1) ion: it addresses issues that have neither been brief (2) nor it argued; formally addresses an issue that was (3) abeyed; it one violates of this Court’s internal rules by reversing the of Court on an issue has Appeals that neither been briefed nor argued, without the required five any emergency votes and the absence circum- of (4) stances; it concludes that HVK to was entitled a notice of intent a simply because this is medical mal- action and practice “professional because the words corporation” 5838a, § can any be found in without discussion HVR whether is either a “health profes- (5) facility” 2912b(l); § sional or health under con- it 2912b(4)(a) the § cludes that requirement of notice of intent a contain statement of the “factual basis

for the claim” not a require does statement indicating that the reason that the defendant corpo- being ration is sued is because the defendant physician intelligibly. Instead, majority indirection, the new overrules or impression at doing so, thereby sowing least leaves the that it is making the seeds of confusion and it difficult for the citizens comprehend precisely state requires. to our what caselaw This appears predecessors’ to be an past unfortunate return to our practice “frequently palying] little attention inconsisten- among declin[ing] cies Court’s] its cases and [the reduce confusion in jurisprudence by overruling conflicting decisions.”Devil- Ass’n, lers v Club Auto Ins 571 n 19 Rowland, J., concurring), See also 477 Mich at 226-227 (Markman, penchant justices ignore further discussion of some inconvenient precedents, thereby “[leaving] precedents intact were inconsistent decisions, essentially allowing litigants with new among future to choose precedents inconsistent as in columns A and B of Chinese restaurant menu.” end, In resolving there no is shortcut to whether the majority dissenting justices or are correct in their character- majority doing. only identify izations of what the is We can what questionable majority, identify we believe to be the decisions of the precedents, the relevant and invite the reader to reach his or her [Petersen, own conclusions. atMich 392 n J. (Markman, dissenting).] Opinion J. Markman, the time of at corporation working (6) require- it concludes alleged malpractice; (b) (4) intent contain notice of that the ment of 2912b of practice standard “applicable statement indicating whether a statement require not care” does profes- hold the seeking to (7) liable; it vicariously directly corporation sional any difference distinction without upon relies (8) it ques- dispositive; II that Roberts conclude decided with correctly II was Roberts tions whether particu- intent must be a notice of to whether regard loss as to bar at a the bench and larized, leaving issue; and law on this good II remains Roberts whether (9) holding that a Roberts II’s implicitly it overrules indicate whether intent must notice of corporation hold the defendant seeking to that a holding its liable and vicariously directly all of the statements must contain intent notice of mention whatso- 2912b(4), any without required by stare decisis. ever of

rv CONCLUSION as to sufficient of intent was the notice Although defendant as to it insufficient Murry, was defendant I, a defective in Roberts held this Court HVR. As limita- the statute does not toll of intent than two filed more complaint Because tions. occurred, alleged after years I Accordingly, time-barred. HVR is against action Appeals Court of portions affirm would intent was the notice of that held opinion insufficient Murry and as to sufficient held portions HVR, but reverse to defendant the statute intent tolled notice of the defective preju- without that a dismissal and thus limitations 484 Mich 397 Opinion J. Markman, appropriate. dice was The action HVR should prejudice. be dismissed with

Case Details

Case Name: Potter v. McLeary

Court Name: Michigan Supreme Court

Date Published: Jul 31, 2009

Citation: 774 N.W.2d 1

Docket Number: 136336. Calendar No. 7

Court Abbreviation: Mich.