Estate of Kerin Lajoice v. Northern Michigan Hospitals Inc ( 2013 )

Order Michigan Supreme Court
Lansing, Michigan
April 26, 2013 Robert P. Young, Jr.,
Chief Justice
145946-7 & (56) Michael F. Cavanagh
Stephen J. Markman
145964-5 Mary Beth Kelly
145977-8 Brian K. Zahra
Bridget M. McCormack
David F. Viviano,
TIMOTHY LaJOICE, Personal Representative Justices
of the Estate of Kerin LaJoice,
Plaintiff-Appellee/Cross-Appellant,
v SC: 145946-7
COA: 300684; 300788
Emmet CC: 06-009165-NH
NORTHERN MICHIGAN HOSPITALS, INC.,
DANIEL E. McDONNELL, M.D., and
DANIEL E. McDONNELL, M.D., P.C.,
Defendants-Appellees/Cross-Appellees,
and
BRAD E. VAZALES, M.D. and GREAT
LAKES CARDIOTHORACIC & VASCULAR
SURGERY, P.L.L.C.,
Defendants-Appellants/Cross-Appellees.
_________________________________________/
TIMOTHY LaJOICE, Personal Representative
of the Estate of Kerin LaJoice,
Plaintiff-Appellee,
v SC: 145964-5
COA: 300684; 300788
Emmet CC: 06-009165-NH
NORTHERN MICHIGAN HOSPITALS, INC.,
Defendant-Appellant,
and
BRAD E. VAZALES, M.D., GREAT LAKES
CARDIOTHORACIC & VASCULAR SURGERY,
P.L.L.C., DANIEL E. McDONNELL, M.D., and
DANIEL E. McDONNELL, M.D., P.C.,
Defendants-Appellees.
_________________________________________/
TIMOTHY LaJOICE, Personal Representative
of the Estate of Kerin LaJoice,
Plaintiff-Appellee,
v SC: 145977-8
COA: 300684; 300788
NORTHERN MICHIGAN HOSPITALS, INC., Emmet CC: 06-009165-NH
BRAD E. VAZALES, M.D., and GREAT
2
LAKES CARDIOTHORACIC & VASCULAR
SURGERY, P.L.L.C.,
Defendants-Appellees,
and
DANIEL E. McDONNELL, M.D. and
DANIEL E. McDONNELL, M.D., P.C.,
Defendants-Appellants.
_________________________________________/
On order of the Court, the applications for leave to appeal the August 28, 2012
judgment of the Court of Appeals are considered and, pursuant to MCR 7.302(H)(1), in
lieu of granting leave to appeal, we REVERSE, in part, the judgment of the Court of
Appeals and REINSTATE the Emmet Circuit Court’s September 30, 2010 order granting
the defendants’ motions for summary disposition. The application for leave to appeal as
cross-appellant is DENIED, because we are not persuaded that the questions presented
should be reviewed by this Court.
Contrary to the Court of Appeals’ holding, Bush v Shabahang, 484 Mich 156(2009), does not apply here because the plaintiff did not file his notice of intent until after
the period of limitations had expired and thus, unlike in Bush, the issue is not whether a
defective notice of intent tolls the period of limitations. Rather, it is whether a complaint
filed after the filing only of a defective notice of intent tolls the wrongful death saving
provision. We have already answered that question in the negative in Boodt v Borgess
Med Ctr, 481 Mich 558 (2008). As Boodt, 481 Mich at 562-563, explains:
MCL 600.2912b(1) states that “a person shall not commence an
action alleging medical malpractice against a health professional or health
facility unless the person has given the health professional or health facility
written notice under this section not less than 182 days before the action is
commenced.” MCL 600.2912b(4) states that the “notice given to a health
professional or health facility under this section shall contain a statement of
at least all of the following . . . .” Therefore, a plaintiff cannot commence
an action before he or she files a notice of intent that contains all the
information required under § 2912b(4). Because plaintiff’s notice of intent
here did not contain all the information required under § 2912b(4), she
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could not have commenced an action. Therefore, her complaint and
affidavit of merit could not have tolled the period of limitations. [Citation
omitted.]
See also Ligons v Crittenton Hosp, 490 Mich 61, 74-75 (2011) (“once the limitations
period has run, tolling is no longer available, even if a saving statute would still allow
commencement of the action”). Because the plaintiff’s complaint did not toll the saving
period, and because the saving period has now expired, the plaintiff’s action is time
barred.
CAVANAGH, J. (dissenting).
I respectfully dissent from the majority’s decision to extend the principle
established by a majority of this Court in Waltz v Wyse, 469 Mich 642, 644 (2004)—that
a defective notice of intent does not toll the wrongful-death saving provision under MCL
600.5852—to preclude plaintiff from amending the notice of intent despite the fact that
plaintiff is entitled to such relief under Bush v Shabahang, 484 Mich 156 (2009). I
continue to adhere to my dissenting opinion in Waltz explaining that MCL 600.5856
applies to toll the wrongful-death saving period. Waltz, 469 Mich at 655-672(CAVANAGH, J., dissenting). Thus, in my view, it makes no difference that the Bush
plaintiff relied on the statute of limitations, whereas plaintiff here relies on the wrongful-
death saving period.
Irrespective of this Court’s holding in Bush, it is my view that “when a notice of
intent . . . is deficient, MCL 600.2301 should control and the deficiency should be
disregarded if there is no effect on the substantial rights of a party.” Boodt v Borgess
Med Ctr, 481 Mich 558, 564 (2008) (CAVANAGH, J., dissenting). And under MCL
600.2301, an amendment is allowed “‘at any time’ before judgment is rendered.” Id. at
568, quoting MCL 600.2301; see, also, Roberts v Mecosta Co Gen Hosp, 466 Mich 57,
71-77 (2002) (MARILYN KELLY, J., dissenting). Further, the plain language of MCL
600.5856(a) clearly states that the filing of a complaint tolls the limitations period.
Kirkaldy v Rim, 478 Mich 581, 586-587 (2007) (CAVANAGH, J., concurring in the result).
Thus, despite any alleged defects in plaintiff’s notice of intent, in my view, the wrongful-
death saving period was tolled by the filing of the complaint, and plaintiff is entitled to
amend the notice of intent to meet the requirements of MCL 600.2912b.
Accordingly, I respectfully dissent from the majority’s order in this case.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
April 26, 2013 _________________________________________
d0423 Clerk