Brian Potter v. Richard C McLeary Md ( 2009 )

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Marilyn Kelly Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway
FILED JULY 31, 2009
BRIAN POTTER,
Plaintiff-Appellant,
v No. 136336
RICHARD C. McLEARY, M.D., GARY
AUGUSTYN, M.D., ST. JOSEPH MERCY
HOSPITAL ANN ARBOR, d/b/a TRINITY
HEALTH-MICHIGAN, ROBERT
DOMEIER, D.O., and EMERGENCY
PHYSICIANS MEDICAL GROUP, P.C.,
Defendants,
and
KRISTYN H. MURRY, M.D., and HURON
VALLEY RADIOLOGY, P.C.,
Defendants-Appellees.
BEFORE THE ENTIRE BENCH
HATHAWAY, J.
At issue before this Court is the proper interpretation of the statutory
provision requiring a notice of intent to sue (NOI) in medical malpractice actions.1
1
MCL 600.2912b.
This case raises the issue whether a professional corporation (PC) must be
provided an NOI before the commencement of the medical malpractice action. It
also raises the issue of what statements must be set forth in an NOI to satisfy the
requirements of MCL 691.2912b(4) when a claim being made against the PC is
based solely on a PC’s vicarious liability for its physician.
We hold, on the basis of the plain language of the relevant statutes, that
when claims alleged against a PC are predicated on its vicarious liability for a
licensed health care provider rendering professional services, an NOI must be
provided. The NOI provision, MCL 600.2912b, clearly states that a plaintiff must
provide all health professionals and health facilities an NOI before commencing a
medical malpractice action. MCL 600.5838a delineates those health care
providers and facilities against which claims of medical malpractice may be
asserted.2 Claims asserted against providers and facilities not delineated in
§ 5838a sound in ordinary negligence.3 Because § 5838a specifically refers to PCs
in its definitional section, a claim against a PC sounds in malpractice, but only
when the claim asserted against the PC is for rendering professional services as
defined in MCL 450.225. Under these circumstances, a PC must be provided an
2
Kuznar v Raksha Corp, 481 Mich 169, 177; 750 NW2d 121 (2008).
3
See id. at 172.
2
NOI.4 The claim against Huron Valley Radiology, P.C., is one based on vicarious
liability for the professional services of its licensed health care provider-employee;
hence, plaintiff Brian Potter was required to provide a timely NOI as the action is
one sounding in medical malpractice.
Moreover, we hold that the NOI filed in this case was fully compliant with
the plain language of § 2912b(4), which governs its contents. First, there is no
requirement in § 2912b(4) to set forth the legal relationships between named
parties; rather, the plain language of § 2912b(4)(f) only requires naming each
party to be sued. Secondly, where the only claim asserted against a PC is one for
vicarious liability, and hence no other standard of care is being asserted against the
PC, there is no requirement within § 2912b that mandates that a claimant set forth
the legal doctrine of vicarious liability in the NOI.
The claim at issue in this case was one for vicarious liability only. In light
of MCL 450.225, a PC can only render professional services through its licensed
health care provider. Where the NOI names both the PC and the provider, the
NOI is fully compliant as long as it sets forth all the factual and medical
information necessary to inform the PC of the nature of the claim being asserted
against the physician-provider. Because this NOI met these requirements, it is
4
Conversely, when a claim asserted against a PC involves the actions of an
employee or agent who is unlicensed or not rendering professional services as
delineated in MCL 450.225, the NOI requirement would be unnecessary, because
such a claim would sound in ordinary negligence rather than medical malpractice.
3
fully compliant and there is no need to dismiss this action on the basis of the NOI.
We therefore reverse the Court of Appeals judgment and remand the case to the
trial court for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
This is a medical malpractice action involving an alleged misreading of an
MRI by defendant Kristyn H. Murry, M.D., on June 7, 2001. This misreading
allegedly caused a delay in a needed emergency surgical procedure on plaintiff’s
spine. This delay resulted in permanent nerve damage to plaintiff’s spine that
impairs his ability to function, including causing difficulty with such things as
walking and urinating. At the time of the alleged malpractice, Murry was
employed by Huron Valley Radiology.
The procedural history of this case is complicated and lengthy. This case
has been pending in our appellate system for over four years as the courts have
conducted an exhaustive review of the content of Potter’s affidavit of merit and his
NOI. The Court of Appeals has issued two opinions, and we are reviewing this
case for the second time.5 The most recent Court of Appeals opinion summarized
this long journey through our appellate system and the reasoning behind the
rulings:
5
Potter v McLeary, 482 Mich 1004 (2008); Potter v McLeary, 480 Mich
915 (2007); Potter v McLeary, 278 Mich App 279; 748 NW2d 599 (2008); Potter
v McLeary, 274 Mich App 222; 732 NW2d 600 (2007).
4
In these consolidated appeals, defendants appealed by leave
granted orders in this medical malpractice action denying their
motions for summary disposition pursuant to MCR 2.116(C)(7).
Previously, a majority of this Court reversed, holding that plaintiff’s
complaint should be dismissed with prejudice because the attached
affidavits of merit did not conform to the requirements of MCL
600.2912d. Potter v McLeary, 274 Mich App 222; 732 NW2d 600
(2007). In lieu of granting leave to appeal, our Supreme Court
reversed the portion of this Court’s judgment “dismissing the
complaint with prejudice, because the dismissal should have been
without prejudice . . . .” See 480 Mich 915 (2007) (emphasis in
original). Our Supreme Court remanded to this Court for
consideration of the remaining issues not addressed previously. We
now affirm in part, reverse in part, and remand.
As noted in our previous opinion, the alleged malpractice
took place on June 7, 2001. The period of limitations in medical
malpractice cases is two years from the date the claim accrued.
MCL 600.5805(6). Presuming the notice of intent was sufficient, the
running of the period of limitations would have been tolled for 182
days from the date of the notice. MCL 600.2912b(1). A notice of
intent was sent to defendants Huron Valley Radiology, P.C., and
Kristyn H. Murry, M.D., on May 30, 2003, leaving eight days
remaining before the period of limitations expired. A notice of
intent was sent to defendants St. Joseph Mercy Hospital Ann Arbor,
Robert Domeier, D.O., and Emergency Physicians Medical Group,
P.C., on May 13, 2003, leaving 25 days before the period of
limitations expired. The notices tolled the running of the limitations
periods, which recommenced on November 30, 2003, and on
November 13, 2003, respectively. The limitations period expired on
December 8, 2003, for all defendants. Plaintiff’s complaint was
filed on November 4, 2003.
There was no serious dispute in our prior decision that the
affidavits of merit were fatally defective because they failed [to]
state how the physicians’ alleged failures related to plaintiff’s
alleged injuries, so they did not contain the required statement of
proximate cause. See MCL 600.2912d. No conforming affidavits of
merit were filed by December 8, 2003. A majority of this Court
previously determined that plaintiff had therefore not filed an
affidavit of merit at all, pursuant to Geralds v Munson Healthcare,
259 Mich App 225, 240; 673 NW2d 792 (2003), and Mouradian v
Goldberg, 256 Mich App 566, 574; 664 NW2d 805 (2003), so
5
plaintiff’s complaint should be dismissed with prejudice. This Court
therefore deemed it unnecessary to address defendants’ challenges to
plaintiff’s notices of intent.
After this Court’s previous decision, our Supreme Court
overruled Geralds and Mouradian as having misapplied the case of
Scarsella v Pollak, 461 Mich 547, 553; 607 NW2d 711 (2000).
Kirkaldy v Rim, 478 Mich 581, 583-584; 734 NW2d 201 (2007).
Our Supreme Court explained that Scarsella had only held that “a
medical-malpractice complaint filed without an affidavit of merit”
was ineffective and would not toll the running of the applicable
limitations period. Id. at 584 (emphasis in original). It further
explained that Geralds and Mouradian had wrongly extended that
holding to medical-malpractice complaints that were actually filed
with affidavits of merit, but where those affidavits of merit failed to
conform to the requirements of MCL 600.2912d. Kirkaldy, supra at
584-585. Our Supreme Court concluded that an affidavit of merit is
presumptively valid—and therefore tolls the running of a limitations
period when filed with a complaint—until successfully challenged in
a judicial proceeding. Id. at 585-586. “Thus, if the defendant
believes that an affidavit is deficient, the defendant must challenge
the affidavit,” and the proper remedy for a successful challenge is
dismissal without prejudice, affording the plaintiff “whatever time
remains in the period of limitations” to file a complaint with a
conforming affidavit. Id. at 586.
Our Supreme Court’s partial reversal in this case was based
on its decision in Kirkaldy. As applied to the case at bar, plaintiff’s
complaint, filed with the affidavits of merit, tolled the running of the
limitations period. Because we conclude that those affidavits of
merit did not conform to the requirements of MCL 600.2912b, the
proper remedy is for the trial court to dismiss plaintiff’s complaint
without prejudice. Plaintiff may then file a new complaint with
conforming affidavits of merit within the time remaining in the
limitations period.
Because we declined to do so previously, we must address
defendants Murry’s and Huron Valley Radiology’s challenges to the
sufficiency of the notices of intent sent to them. Murry and Huron
Valley Radiology first argue that the notice does not properly state
the applicable standard of practice or care as required by MCL
600.2912b(4)(b). We agree, in part. The second paragraph of
plaintiff’s notice sets forth the following standard of care:
6
The standard of care required Drs. Murry and/or [Gary]
Augustyn and/or [Richard C.] McLeary to correctly read, interpret
and report the correct results to the emergency room under the
circumstances. Notwithstanding that standard of care, Drs. Murry
and/or Augustyn and/or McLeary failed to properly interpret the
MRI images and convey accurate information to the emergency
room physician in charge of the patient that night.
The standard of care completely fails to make any reference
to defendant Huron Valley Radiology. Our Supreme Court has
explained that plaintiff is not obligated to provide a completely
correct standard of care, but “plaintiff was required to make a good-
faith averment of some particularized standard for each of the
professionals and facilities named in the notices.” Roberts v
Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 694; 684
NW2d 711 (2004) (emphasis in original). The standard alleged here
is more than the tautology rejected in Roberts, and we find it
adequate with regard to defendant Murry. Plaintiff articulated a
specific standard that Murry must correctly read, interpret, and
report the results of the MRI test. This is specific to the
requirements of the service that plaintiff received from Murry. It
was sufficient to put defendant Murry on notice of the nature of the
claim, which was failure to properly identify and report plaintiff’s
injury. Therefore, it met the requirements of MCL600.2912b(4)(b)
with regard to Murry. However, the notice cannot satisfy all the
statutory requirements with regard to defendant Huron Valley
Radiology.
***
Because no other challenges to the notices of intent are raised,
we will not consider them further. Therefore, the trial court properly
denied summary disposition on the basis of the notices of intent to
all defendants other than Huron Valley Radiology. With regard to
Huron Valley Radiology, we believe that our Supreme Court’s
treatment of deficient—but actually filed—affidavits of merit
should, by analogy, be applied to deficient—but again actually
filed— notices of intent, as well. See Kirkaldy, supra at 586.
Notices of intent are presumed to be valid and proper, so they
support the filing of a complaint after the notice period has run,
unless and until the notice is successfully challenged. The remedy to
be applied if a notice is successfully challenged is dismissal without
prejudice, affording the plaintiff the opportunity to cure the
deficiency within the time remaining within the limitations period as
7
theretofore tolled by the now-invalidated notice or the subsequent
filing of the complaint.
We hold as follows: summary disposition is granted without
prejudice to Huron Valley Radiology on the basis of the notice of
intent, summary disposition is denied to all other defendants on the
basis of the notices of intent, and summary disposition is granted
without prejudice to all defendants on the basis of the affidavits of
merit. The applicable limitations periods remain tolled until entry of
the grants of summary disposition. We remand for further
proceedings consistent with this opinion.[6]
On March 20, 2008, plaintiff filed an application for leave to appeal asking
this Court to grant leave to consider whether his NOI complied with the content
requirements of § 2912b. On October 1, 2008, this Court granted leave; however,
the issue was limited to the threshold question of whether it was necessary to
provide an NOI to a PC. That order provided:
On order of the Court, the application for leave to appeal the
March 20, 2008, judgment of the Court of Appeals is considered
and, it is granted, limited to the issue whether defendant Huron
Valley Radiology, P.C. is a “health facility or agency” to which a
plaintiff is required to provide notice under MCL 600.2912b(1). See
MCL 333.20106(1).[7]
Despite the limited grant order, the parties addressed the content of the NOI
and whether it was defective in their briefing and in oral argument while
advancing their respective positions.8 After oral argument, the Court expanded the
6
Potter, 278 Mich App at 281-286.
7
Potter, 482 Mich at 1004.
8
Defendant Huron Valley Radiology addressed the sufficiency of the NOI
issue extensively in its brief on appeal. This brief sets forth the sufficiency issue
as one of the questions presented for us to decide. The brief also sets forth the
8
grant order by asking the parties to file supplemental briefs on the additional issue
of the tolling of the statute of limitations:
Oral argument having been heard on March 4, 2009, the
parties are directed to submit supplemental briefs addressing the
issue whether, if a defendant professional corporation is not an entity
to whom notice is required to be provided under MCL 600.2912b,
the applicable statute of limitations, MCL 600.5805(6), was
nonetheless subject to statutory tolling provided in former MCL
600.5856(d).[9]
As we have resolved the threshold issue by holding that Potter must provide an
NOI to Huron Valley Radiology, we must also resolve the underlying issue of
whether this NOI is defective in order to conclude the analysis in this case. We
take particular note of the fact that it has been over eight years since the
malpractice occurred and nearly six years since the subject NOI was mailed to
defendants. Further, it has been over 5½ years since the complaint was filed, with
the last four years having been devoted to the appeal of issues relating to the
affidavit of merit and the NOI. The parties are still waiting to have a court address
the merits of the case. Given that we have had briefing and argument on all
entire content of the NOI and articulates the view that the NOI is defective. The
brief cites statutes and cases to support its position. Moreover, in its prayer for
relief, defendant asks us to decide the remaining issues in plaintiff’s application
for leave to appeal. One of the two remaining questions in plaintiff’s application
for leave to appeal is whether the NOI was defective. Further, plaintiff
sufficiently addressed this issue at oral argument. The briefs and transcript of the
oral argument can be viewed at:
http://www.courts.michigan.gov/supremecourt/Clerk/03-09/136336/136336-
Index.html.
9
Potter v Murry, 483 Mich 922 (2009).
9
necessary issues, we can decide in this opinion both whether the plaintiff must
provide a PC an NOI before commencing an action as well as whether the subject
NOI was compliant with § 2912b.
II. STANDARD OF REVIEW
The issues presented are issues of statutory interpretation. Statutory
interpretation is a question of law, which this Court reviews de novo.10 This Court
also reviews de novo a trial court’s decision regarding a motion for summary
disposition.11
III. ANALYSIS
Interpretation of the NOI provision presents questions of statutory
construction. Assuming that the Legislature has acted within its constitutional
authority, the purpose of statutory construction is to discern and give effect to the
intent of the Legislature.12 In determining the intent of the Legislature, this Court
must first look to the language of the statute.13 The Court must, first and foremost,
interpret the language of a statute in a manner that is consistent with the intent of
10
In re Investigation of March 1999 Riots in East Lansing (People v
Pastor), 463 Mich 378, 383; 617 NW2d 310 (2000).
11
Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000).
12
Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119
(1999).
13
Id.10
the Legislature.14 “‘As far as possible, effect should be given to every phrase,
clause, and word in the statute. The statutory language must be read and
understood in its grammatical context, unless it is clear that something different
was intended.’”15 Moreover, when considering the correct interpretation, the
statute must be read as a whole.16 Individual words and phrases, while important,
should be read in the context of the entire legislative scheme.17 In defining
particular words in statutes, we must consider both the plain meaning of the
critical word or phrase as well as its placement and purpose in the statutory
scheme.18 A statute must be read in conjunction with other relevant statutes to
ensure that the legislative intent is correctly ascertained.19 Finally, the statute must
be interpreted in a manner that ensures that it works in harmony with the entire
statutory scheme.20
14
Id. at 135.
15
Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570, 579 (2008),
quoting Sun Valley, supra at 237.
16
Sun Valley, supra at 237.
17
Herman, supra at 366.
18
Id., quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133
L Ed 2d 472 (1995).
19
Wayne Co v Auditor General, 250 Mich 227, 223; 229 NW 911 (1930).
20
Wayne Co, supra at 234.
11
A. The Nature of Services Provided by a Professional Corporation
Before we address whether a plaintiff must provide an NOI to a PC, it is
necessary to review the legal structure of a PC and understand the nature of the
services it provides. Since a professional corporation is a statutory creature, we
look to the Professional Service Corporation Act, MCL 450.221 et seq., for
guidance. The relevant provision of that act provides, in pertinent part:
A corporation organized and incorporated under this act
shall not render professional services within this state except
through its officers, employees, and agents who are duly licensed or
otherwise legally authorized to render the professional services
within this state. The term employee does not include secretaries,
bookkeepers, technicians, and other assistants who are not usually
and ordinarily considered by custom and practice to be rendering
professional services to the public for which a license or other legal
authorization is required. [MCL 450.225 (emphasis added).]
This provision makes clear that a PC, while a separate legal entity, does not
render professional services on its own; rather, it can only render professional
services through its employees or agents who are licensed or legally authorized to
render the professional services. This language stands as a legislative recognition
that when a PC renders professional services, it is inexorably linked to the licensed
health care provider. For all practical purposes, the PC and the health care
provider are treated as the same entity when professional services are involved.21
Moreover, a PC can perform other types of services or take other actions through
21
See Peters v Golds, 366 F Supp 150 (1973), which held that a PC is
treated as a person for purposes of § 5838a.
12
unlicensed employees or agents, but such actions would not constitute professional
services under the act. This delineation of types of services is emphasized not
only in the first sentence, it is reasserted in the second sentence of MCL 450.227,
which states that “[t]he term employee does not include secretaries, bookkeepers,
technicians, and other assistants who are not usually and ordinarily considered by
custom and practice to be rendering professional services to the public for which a
license or other legal authorization is required.” Thus, a PC can engage in two
different types of actions: those that are professional services and those that are
not. While the PC is vicariously liable for either of these types of actions pursuant
to MCL 450.226,22 this distinction is pertinent in determining whether the medical
malpractice statutes apply to a particular cause of action.
22
MCL 450.226 provides:
Nothing contained in this act shall be interpreted to abolish,
repeal, modify, restrict or limit the law now in effect in this state
applicable to the professional relationship and liabilities between the
person furnishing the professional services and the person receiving
such professional service and to the standards for professional
conduct. Any officer, shareholder, agent or employee of a
corporation organized under this act shall remain personally and
fully liable and accountable for any negligent or wrongful acts or
misconduct committed by him, or by any person under his direct
supervision and control, while rendering professional service on
behalf of the corporation to the person for whom such professional
services were being rendered. The corporation shall be liable up to
the full value of its property for any negligent or wrongful acts or
misconduct committed by any of its officers, shareholders, agents or
employees while they are engaged on behalf of the corporation in the
rendering of professional services.
13
B. Professional Corporations and the NOI Requirement
We now examine whether a plaintiff is required to provide an NOI to a PC
before commencing a medical malpractice action. We start our analysis by
examining the language of the NOI provision itself. Section 2912b states in
relevant part:
(1) Except as otherwise provided in this section, a person
shall not commence an action alleging medical malpractice against
a health professional or health facility unless the person has given
the health professional or health facility written notice under this
section not less than 182 days before the action is commenced.
[Emphasis added.]
The first sentence in this section provides critical guidance. The statute
expressly limits the requirement of an NOI to an action alleging medical
malpractice: “[A] person shall not commence an action alleging medical
malpractice . . . .” Thus, the first step in the analysis is to determine whether the
action sounds in medical malpractice or ordinary negligence. Only those actions
sounding in medical malpractice are governed by the mandates of this statute.
This Court recently reiterated the method by which claims of medical
malpractice and ordinary negligence are distinguished. In Kuznar, this Court was
asked to determine whether a claim against a pharmacy for the actions of its non-
licensed technicians sounded in medical malpractice or in ordinary negligence. In
holding that the claims sounded in ordinary negligence, Kuznar reiterated the long
standing rule that claims sound in medical malpractice only when a two-prong test
is met. First, the claim must occur in the course of a professional relationship, and
14
second, the claim must pose questions of medical judgment outside the realm of
common knowledge and experience. If either prong is not met, the action sounds
in ordinary negligence rather than medical malpractice.23 With regard to the first
prong, Kuznar stated:
A professional relationship exists if a person or an entity
capable of committing medical malpractice was subject to a
contractual duty to render professional health-care services to the
plaintiff. Under the common law, only physicians and surgeons
were potentially liable for medical malpractice. But in MCL
600.5838a(1), the Legislature expanded the scope of those who
could be liable for medical malpractice. It provided for medical
malpractice claims to be brought against “a person or entity who is
or who holds himself or herself out to be a licensed health care
professional, licensed health facility or agency, or an employee or
agent of a licensed health facility or agency . . . .”
The primary issue in this case is whether the pharmacy
technician and the pharmacy are covered by MCL 600.5838a(1).[24]
Kuznar correctly opined that only those health care providers and facilities
designated within § 5838a could be sued for malpractice. Therefore, only those
providers and facilities covered by § 5838a can meet the professional relationship
prong of the test. Accordingly, Kuznar reviewed the language of § 5838a(1) to
determine if a pharmacy was a designated entity. Section 5838a(1)(a) defines a
“licensed health facility or agency” as “a health facility or agency licensed under
23
There is no dispute that the second prong of the Kuznar test has been met
in this case. The claim indisputably presents questions of medical judgment
outside the realm of common knowledge and experience.
24
Kuznar, supra at 177.
15
article 17 of the public health code, Act No. 368 of the Public Acts of 1978, being
sections 333.20101 to 333.22260 of the Michigan Compiled Laws.”
Because § 5838a(1)(a) limits its application to only those health facilities
and agencies licensed under article 17 of the Public Health Code, Kuznar next
turned its attention to MCL 333.20106(1) to determine whether a pharmacy was
within the list of designated entities. MCL 333.20106(1) provides that “health
facility or agency” means:
(a) An ambulance operation, aircraft transport operation,
nontransport prehospital life support operation, or medical first
response service.
(b) A clinical laboratory.
(c) A county medical care facility.
(d) A freestanding surgical outpatient facility.
(e) A health maintenance organization.
(f) A home for the aged.
(g) A hospital.
(h) A nursing home.
(i) A hospice.
(j) A hospice residence.
(k) A facility or agency listed in subdivisions (a) to (h)
located in a university, college, or other educational institution.
16
Kuznar concluded that because pharmacies were not included within this
list, the claims asserted against them did not sound in medical malpractice.25
Rather, the claims asserted against the pharmacy sounded in ordinary negligence,
and, accordingly, the medical malpractice statutes simply did not apply. It is this
same statutory provision and analysis that has led to the question we now address.
Because this same list of health facilities contained in § 333.20106(1) does not
include PCs, the question arises whether PCs are exempt from any of the
requirements of the medical malpractice statutory scheme. We conclude that it is
unnecessary to refer to the list in § 333.20106(1) in this instance because the plain
language of § 600.5838a, as amended effective April 1, 1994, expressly includes
professional corporations within its definitional section.
Section 5838a, as amended, provides in pertinent part:
(1) For purposes of this act, a claim based on the medical
malpractice of a person or entity who is or who holds himself or
herself out to be a licensed health care professional, licensed health
facility or agency, or an employee or agent of a licensed health
facility or agency who is engaging in or otherwise assisting in
medical care and treatment, whether or not the licensed health care
professional, licensed health facility or agency, or their employee or
agent is engaged in the practice of the health profession in a sole
proprietorship, partnership, professional corporation, or other
25
We note that satisfying the first prong of Kuznar requires more than mere
inclusion within the public health code lists. The service provided must also be a
professional service, the determination of which requires further analysis. For
example, while hospitals are included in the list, not all hospital employees, such
as janitors and dietary aides, provide professional services. However, inclusion
within either § 5838a or the public health code lists is a necessary predicate to an
action sounding in medical malpractice.
17
business entity, accrues at the time of the act or omission that is the
basis for the claim of medical malpractice, regardless of the time the
plaintiff discovers or otherwise has knowledge of the claim. As used
in this subsection:
(a) “Licensed health facility or agency” means a health
facility or agency licensed under article 17 of the public health code,
Act No. 368 of the Public Acts of 1978, being sections 333.20101 to
333.22260 of the Michigan Compiled Laws.
(b) “Licensed health care professional” means an individual
licensed or registered under article 15 of the public health code, Act
No. 368 of the Public Acts of 1978, being sections 333.16101 to
333.18838 of the Michigan Compiled Laws, and engaged in the
practice of his or her health profession in a sole proprietorship,
partnership, professional corporation, or other business entity.
However, licensed health care professional does not include a
sanitarian or a veterinarian. [Emphasis added.]
This amendment of § 5838a was enacted as part of the same package of
bills that created the NOI provision in April of 1994.26 The amended § 5838a
refers to professional corporations twice. Before this amendment, § 5838a made
no reference whatsoever to professional corporations.27 This specific addition of
26
Section 5838a and § 2912b were both amended by 1993 PA 78,
effective April 1, 1994.
27
The former § 5838a provided:
(1) A claim based on the medical malpractice of a person who
is, or who holds himself or herself out to be, a licensed health care
professional, licensed health facility or agency, employee or agent of
a licensed health facility or agency who is engaging in or otherwise
assisting in medical care and treatment, or any other health care
professional, whether or not licensed by the state, accrues at the time
of the act or omission which is the basis for the claim of medical
malpractice, regardless of the time the plaintiff discovers or
otherwise has knowledge of the claim. As used in this subsection:
18
professional corporations to § 5838a was a clear statement by the Legislature that
it intended a PC to be an entity against which a medical malpractice action could
be asserted. Further, the placement of the reference to professional corporations
within § 5838a(1)(b) (defining heath care professionals), rather than within
§ 5838a(1)(a) (defining health facilities), stands as a recognition of the nature of
services as delineated in the Professional Service Corporation Act, MCL 450.225.
When a PC renders professional services, it is rendering those professional
services through the licensed health care provider and the two are treated as
though they are one entity.
Finally, § 5838a recognizes that some services provided by a PC are
professional services while others are not. Where the services provided are
professional services rendered by a licensed health care provider, any claim
challenging those services as being negligent sound in medical malpractice, and
the statutes governing medical malpractice apply. Where the services provided by
a PC are not professional services as defined in MCL 450.225, the claim would
(a) “Licensed health facility or agency” means a health
facility or agency licensed under article 17 of the public health code,
Act No. 368 of the Public Acts of 1978, being sections 333.20101 to
333.22181 of the Michigan Compiled Laws.
(b) “Licensed health care professional” means an individual
licensed under article 15 of the public health code, Act No. 368 of
the Public Acts of 1978, being sections 333.16101 to 333.18838 of
the Michigan Compiled Laws. Licensed health care professional
does not include a sanitarian or a veterinarian.
19
not be subject to the medical malpractice requirements because those claims sound
in ordinary negligence. To hold otherwise would negate the intent of the
Legislature and ignore the proper rules of statutory construction, which require
that any one statute be read in conjunction with other relevant statutes to ensure
that legislative intent is being correctly ascertained.
Accordingly, in the instant case, the first prong of the Kuznar test is met
because a PC is a covered entity under § 5838a and the services provided were
professional services. The second prong of the Kuznar test is also met because
there is no dispute that the claims asserted posed questions of medical judgment
outside the realm of common knowledge and experience. Consequently, because
both prongs of the Kuznar test have been met, we conclude that this is a claim that
sounds in medical malpractice. Because §2912b(1) clearly requires a claimant to
provide a timely NOI before commencing a medical malpractice action, plaintiff
was required to provide this PC with a timely NOI.
C. The Content Requirements of MCL 600.2912b
Because plaintiff did provide an NOI to Huron Valley Radiology, the next
issue is whether the NOI was defective. The resolution of this issue requires an
examination of the content requirements of § 2912b. The Court of Appeals ruled
that the instant NOI contained a defect, thereby necessitating dismissal of the
action without prejudice. The purported defect in the NOI can be summarized as
the failure of plaintiff to set forth a statement in the NOI that Dr. Murry was the
20
employee of Huron Valley Radiology and that this PC was vicariously liable for
the actions of its employee-doctor. We take note of the fact that both the trial
court and the Court of Appeals have held that the NOI was fully compliant with
the content requirements under § 2912b(4) in all respects regarding Dr. Murry, a
holding with which we fully agree. Also, we note that the only claim pursued
against Huron Valley Radiology was one for vicarious liability for the actions of
Dr. Murry, and the NOI fully informed Huron Valley Radiology and Dr. Murry of
the claim being asserted against Dr. Murry. Thus, we are compelled to review
§ 2912b to determine if there is a statutory mandate to specifically set forth the
legal relationship between these two parties in the NOI, and whether there is a
statutory mandate to set forth that the claim asserted is one for vicarious liability
when no other claims are being asserted. Our inquiry once again necessarily
begins with an examination of the language of § 2912b.
The first question we examine is whether § 2912b requires that legal and
employment relationships between the parties be set forth in an NOI. We hold
that the answer is no. The content requirements for an NOI are set forth in
subsection 2912b(4):
(4) The notice given to a health professional or health facility
under this section shall contain a statement of at least all of the
following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the
claimant.
(c) The manner in which it is claimed that the applicable
standard of practice or care was breached by the health professional
21
or health facility.
(d) The alleged action that should have been taken to achieve
compliance with the alleged standard of practice or care.
(e) The manner in which it is alleged the breach of the
standard of practice or care was the proximate cause of the injury
claimed in the notice.
(f) The names of all health professionals and health facilities
the claimant is notifying under this section in relation to the claim.
We find no language in this subsection that requires a claimant to set forth
the nature of the relationship between the parties to be sued. To the contrary,
subsection f clearly states that all that need be done in this regard is to identify the
names of the health professional and facility being notified. We cannot add a
requirement that is not contained in the statute’s plain language. Moreover, we
cannot assume that defendants were unable to comprehend the nature of the
relationship between them without having a claimant advise them in writing that
such a relationship exists. Certainly they are fully aware of the legal relationship
between them.28 More importantly, however, there simply is no requirement in the
statute that a claimant advise the defendants of their legal or employment
relationship.29 Accordingly, Potter’s NOI was not defective in this regard.
28
Moreover, it would be illogical to assume that a claimant knows the
precise legal relationship between defendants. The provider may have either an
actual employment relationship with the PC or they may have a complex
independent contractor arrangement. While the PC can be vicariously liable for
the acts of either under MCL 450.226, the statute logically imposes no
requirement on the claimant to allege the precise nature of the relationship.
29
However, even assuming for the sake of argument that there was a
requirement to set forth legal relationships in the statute, the NOI meets that
burden. Plaintiff’s NOI does more than merely name the entities to be sued; the
22
Our next query is whether § 2912b(4) contains a requirement that the
claimant specifically set forth the legal theory of vicarious liability within the
NOI, when vicarious liability is the only claim asserted. We again hold that the
answer is an unequivocal no. There is nothing in the language of § 2912b(4) that
states that a claimant must set forth the legal theory of vicarious liability. Nor can
we add such a requirement to the statute. The statute is focused on a requirement
that the claimants advise the recipient of the factual and medical basis of the claim
being asserted.30 If no other claim is asserted against the PC, then there is no
possibility for confusion regarding the nature of the claim being asserted against it.
If the claimant wishes to make some other claim against the PC, then the claimant
NOI names Huron Valley Radiology, P.C. as well as the three individual
physicians and “their employees or agents, actual or ostensible, thereof.” This
phrase is repeated three times throughout the NOI. This language is more than
sufficient to provide Huron Valley Radiology with notice of the facts establishing
the legal relationships at such an early stage of the proceeding.
30
Any argument that it is necessary to plead facts supporting vicarious
liability or to state the phrase “vicarious liability” as part and parcel of the “factual
basis of the claim” is misplaced and misreads the NOI statute. Section 2912b(4)
does not contain such a requirement and we must assume that the absence of the
requirement was purposeful. If the Legislature wanted such a requirement it could
have easily included it. It could have phrased § 2912b(4)(a) as “the factual and
legal basis for the claim and whether the claim is for direct liability or vicarious
liability.” But it did not do so. The Legislature could also have inserted additional
mandates, such as requiring the claimant to set forth that the “provider is licensed
to practice medicine in Michigan” or “the provider is licensed under a specific
provision of the public health code.” However, again, the Legislature chose not to
do so. Absent statutory guidance, we cannot impose additional requirements upon
claimants. The better judicial practice is to refrain from adding requirements to a
statute that are not contained within its language.
23
would be required to set forth that additional claim in order to satisfy the § 2912b
(4)(b) “applicable standard of care” requirement. But if the only claim asserted
against the PC is one for vicarious liability, the “applicable standard of care”
requirement is met because there is only one standard of care: the standard of care
for the provider. There is no separate standard of care for the PC. This analysis
not only holds true to the statutory language, but also fully recognizes that the
agent and principal share a singular identity for purposes of performing
professional services, pursuant to the statute governing professional
corporations.31 Accordingly, where the NOI adequately sets forth the claim
against the agent or employee, the claimant need not repeat the same information,
or state the words “vicarious liability” in the NOI, because the statute does not
require the claimant to do so.
Moreover, we find Huron Valley Radiology’s assertions especially
troubling because it openly admits knowing and understanding that it is
vicariously liable for the actions of its employee, Dr. Murry. In other words, while
admitting that it employs Dr. Murry, Huron Valley Radiology simultaneously asks
that we dismiss plaintiff’s case for plaintiff’s failure to tell it that it employs Dr.
Murry. We query what purpose such a statement would serve. Huron Valley
Radiology’s proposition exalts form over substance in an intolerable manner.
More importantly, however, because there is no requirement in the statute to state
31
MCL 450.225.
24
the legal term of “vicarious liability” within the NOI, we will not hold plaintiff to
this requirement, nor will we write such a requirement into the statute.32
This holding is also consistent with this Court’s longstanding principles
forming the foundation of vicarious liability. A master is bound to keep his or her
servants within their proper bounds, and is responsible if he or she does not. “The
law contemplates that their acts are his acts, and that he is constructively present at
them all.”33 This Court has long held that a principal “is only liable because the
law creates a practical identity with his men [agents], so that he is held to have
32
We do not believe that this Court’s ruling in Roberts v Mecosta Co Gen
Hosp (Roberts II), 470 Mich 679; 684 NW2d 711 (2004), is dispositive. Roberts
II discussed a similar issue that arose when the plaintiff asserted claims in a
manner that left confusion regarding whether the claims asserted were for direct
liability, vicarious liability, or both. The Court stated:
Although it appears from plaintiff’s complaint that she is
claiming that the hospital and professional corporation are
vicariously liable for the negligence of their agents, the notices of
intent implied that plaintiff alleged direct negligence against these
defendants for negligently hiring or negligently granting staff
privileges to the individual defendants. [Roberts II, supra at 693.]
We question whether Roberts II was correctly decided because it adds a
requirement not found in the language of the statute; namely, that statements be
“particularized.” However, Roberts II opined that because there was confusion
with regard to whether the claim was for direct or vicarious liability, the PC was
unable to understand the nature of the claims being asserted. In the case before us,
no such potential for confusion exists, and, accordingly, Roberts II is
distinguishable.
33
Smith v Webster, 23 Mich 298, 299 (1871).
25
done what they have done.”34 This longstanding legal doctrine is embodied in
MCL 450.225. As previously discussed, that statute recognizes that a PC can only
render professional services through its licensed health care providers.
Accordingly, with regard to vicarious liability claims, the parties are in fact the
same actor, and therefore, there is no need for a claimant to duplicate the same
information in the NOI for both parties. If the information contained within the
NOI is sufficient with regard to the 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 NOI
provided 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 Dr. Murry, 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 must provide 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
34
Id. at 300. See also Ducre v Sparrow-Kroll Lumber Co, 168 Mich 49,
52; 133 NW 938 (1911).
26
rendering professional services. Because the claim against Huron Valley
Radiology is based on vicarious liability for the professional services of its
employee, a licensed health care provider, plaintiff was required to provide a
timely NOI as the action is one sounding in medical malpractice.
Moreover, we conclude that the NOI filed in this case was fully compliant
with the plain language of § 2912b(4), which governs its contents. First, there is
no requirement in § 2912b(4) to set forth the legal relationships between named
parties; rather, the plain language of § 2912b(4)(f) only requires naming each
party to be sued. Secondly, where the only claim asserted against a PC is one for
vicarious liability, and hence no other standard of care is being asserted against the
PC, there is no requirement within § 2912b that mandates that a claimant set forth
the legal doctrine of vicarious liability in the NOI.
The claim at issue in this case was one for vicarious liability only. In light
of MCL 450.225, a PC can only render professional services through its licensed
health care provider. Where the NOI names both the PC and the provider, the
NOI is fully compliant so long as it sets forth all of the factual and medical
information necessary to inform the PC of the nature of the claim being asserted
against the physician-provider. Because this NOI meets these requirements, it is
fully compliant and there is no need to dismiss this action on the basis of the NOI.
We therefore reverse the Court of Appeals judgment and remand the case to
the trial court for further proceedings consistent with this opinion. Furthermore,
27
we vacate the order abeying the applications for leave to appeal in Potter v
McLeary (Docket Nos. 136338 and 136339) and deny the applications in light of
this opinion.
Diane M. Hathaway
Marilyn Kelly
Michael F. Cavanagh
Elizabeth A. Weaver
28
STATE OF MICHIGAN
SUPREME COURT
BRIAN POTTER,
Plaintiff-Appellant,
v No. 136336
RICHARD C. McLEARY, M.D., GARY
AUGUSTYN, M.D., ST. JOSEPH MERCY
HOSPITAL ANN ARBOR, d/b/a TRINITY
HEALTH-MICHIGAN, ROBERT
DOMEIER, D.O., and EMERGENCY
PHYSICIANS MEDICAL GROUP, P.C.,
Defendants,
and
KRISTYN H. MURRY, M.D. and HURON
VALLEY RADIOLOGY P.C.,
Defendants-Appellees.
____________________________________
KELLY, C.J. (concurring).
I fully agree with and sign the majority opinion in this case. I write for the
sole purpose of responding to Justice Markman’s comments attacking the
majority’s respect for the doctrine of stare decisis. In his partial concurrence and
partial dissent, Justice Markman repeats a claim that he and Justices Corrigan and
Young have published numerous times this term1 with the same string of
citations.2 The claim is that their colleagues who comprise the majority in this
case have been ignoring precedent. A review of the cases in the string citation
serves to illustrate that the claim is simply false.
Justice Markman claims that in Vanslembrouck v Halperin,3 the Court
ignored Vega v Lakeland Hosps.4 However, Vanslembrouck is distinguishable
from Vega because Vega determined that MCL 600.5851(1) is a saving provision,
whereas Vanslembrouck held that MCL 600.5851(7) is a statute of limitations.
Thus, these cases examined the effect of altogether different statutory provisions.
Justice Markman also claims that in Hardacre v Saginaw Vascular
Services,5 the Court failed to follow Boodt v Borgess Med Ctr.6 However, in
1
See, e.g., Petersen v Magna Corp, 484 Mich ___; ___ NW2d ___ (2009)
(Markman, J., dissenting), decided July 31, 2009 (Docket Nos. 136542 and
136543); Chambers v Wayne Co Airport Auth, 483 Mich 1081, 1082 (2009)
(Corrigan, J., dissenting); Scott v State Farm Mut Auto Ins Co, 483 Mich 1032,
1036 (2009) (Corrigan, J., dissenting); Beasley v Michigan, 483 Mich 1025, 1027
(2009) (Corrigan, J., dissenting); Juarez v Holbrook, 483 Mich 970 (2009)
(Markman, J., dissenting). Justice Young joined the dissenting statements in
Chambers, Scott, Beasley, and Juarez.
2
Post at 30 n 23.
3
Vanslembrouck v Halperin, 483 Mich 965 (2009).
4
Vega v Lakeland Hospitals at Niles-St Joseph, Inc, 479 Mich 243; 736
NW2d 561 (2007).
5
Hardacre v Saginaw Vascular Services, 483 Mich 918 (2009).
6
Boodt v Borgess Med Ctr, 481 Mich 558; 751 NW2d 44 (2008).
2
Hardacre, the Court denied leave to appeal because the allegations in the
plaintiff’s notice of intent to find an action did not need to comply with Boodt. In
Hardacre, the burden of explication of the standard of care was minimal.7
Nor did the Court ignore precedents with which it disagrees in Sazima v
Shepherd Bar & Restaurant.8 Justice Markman claims that the Court failed to
follow Chrysler v Blue Arrow Transport Lines.9 However, Sazima involved
exceptions to the “going and coming” rule as set forth in Camburn v Northwest
School Dist.10 Thus, the Court was not bound by Chrysler.
Justice Markman next claims the Court ignored Smith v Khouri11 when it
decided Juarez v Holbrook.12 However, in Juarez, it was undisputed that the trial
court performed a reasonableness analysis in calculating the proper attorney fee
award. Therefore, a remand in light of Smith was unnecessary.
7
See Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 694
n 12; 684 NW2d 711 (2004).
8
Sazima v Shepherd Bar & Restaurant, 483 Mich 924 (2009).
9
Chrysler v Blue Arrow Transport Lines, 295 Mich 606; 295 NW 331(1940).
10
Camburn v Northwest School Dist (After Remand), 459 Mich 471, 478;
592 NW2d 46 (1999).
11
Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008).
12
Juarez, supra.
3
In Beasley v Michigan,13 the Court considered the statutory notice provision
of MCL 600.6431(3). Thus, contrary to Justice Markman’s claim, the Court was
not bound by Rowland v Washtenaw Co Rd Comm.14 Rowland interpreted the
notice provision of MCL 600.1404(1); thus, the cases involved different statutory
provisions altogether.
Likewise, Justice Markman is incorrect in claiming that the Court failed to
enforce Thornton v Allstate Ins Co15 and Putkamer v Transamerica Ins Corp of
America16 in Scott v State Farm Mut Auto Ins Co.17 In Scott, the Court of Appeals
undertook a thorough analysis of the relevant no-fault jurisprudence and applied
precedent as it has been understood for nearly 30 years.
Finally, the Court did not fail to abide by Rowland in Chambers v Wayne
Co Airport Auth.18 Chambers interpreted MCL 691.1406, while Rowland
interpreted MCL 691.1404(1). Thus, the cases dealt with different statutory
13
Beasley v Michigan, 483 Mich 1025 (2009).
14
Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731 NW2d 41
(2007).
15
Thornton v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986).
16
Putkamer v Transamerica Ins Corp of America, 454 Mich 626; 563
NW2d 683 (1997).
17
Scott, supra at 1032.
18
Chambers, supra.
4
provisions and the Court was not bound to extend Rowland to the statute at issue
in Chambers.
In summary, the accusation that the Court has been ignoring precedent is
incorrect. Had other Justices been in the majority in some of the decisions
complained about, they might well have extended existing precedent to a new area
of the law. But the refusal of those in the majority in this case to so extend
precedent is quite different from a refusal on their part to apply it. This is a
distinction that Justices Markman, Corrigan, and Young would do well to concede.
Marilyn Kelly
5
STATE OF MICHIGAN
SUPREME COURT
BRIAN POTTER,
Plaintiff-Appellant,
v No. 136336
RICHARD C. McLEARY, M.D., GARY
AUGUSTYN, M.D., ST. JOSEPH MERCY
HOSPITAL ANN ARBOR, d/b/a TRINITY
HEALTH-MICHIGAN, ROBERT
DOMEIER, D.O., and EMERGENCY
PHYSICIANS MEDICAL GROUP, P.C.,
Defendants,
and
KRISTYN H. MURRY, M.D., and HURON
VALLEY RADIOLOGY, P.C.,
Defendants-Appellees.
CORRIGAN, J. (concurring in part and dissenting in part).
I agree with the majority and the Court of Appeals that plaintiff’s notice of
intent (NOI) was sufficient as to defendant Dr. Kristyn Murry. I respectfully
dissent, however, from the majority’s holding that defendant Huron Valley
Radiology, P.C. (Huron) was entitled to a NOI. Instead, I concur with and join
part I of Justice Young’s partial concurrence and partial dissent with regard to
whether plaintiff was required to serve defendant Huron with a NOI to commence
a medical malpractice action under MCL 600.2912b. I fully agree with Justice
Young that Huron is neither a “health professional” nor a “health facility” entitled
to notice under MCL 600.2912b. Whether the Legislature, by oversight or design,
excluded professional corporations such as Huron from the statutory definition of
“health facility or agency” in MCL 333.20106(1), it is for the Legislature, and not
this Court, to decide.
Because Huron was not entitled to an NOI, plaintiff was not entitled to
tolling. I share Justice Markman’s concerns as discussed in part IIIC of his partial
concurrence and partial dissent regarding Justice Young’s analysis of the tolling
issue. Specifically, I disagree that as long as a NOI is sufficient as to one
defendant, the statute of limitations is tolled as to all defendants. I agree with
Justice Markman’s conclusion that plaintiff’s complaint here was untimely filed.
Accordingly, I would hold that the action against Huron was barred by the statute
of limitations. Moreover, I also concur with part IIID of Justice Markman’s
opinion concerning whether plaintiff can retroactively amend an NOI.
Additionally, I dissent from the majority’s holding that plaintiff’s NOI as to
Huron was sufficient. As an initial matter, I would not reach the sufficiency of the
notice issue at all for the reasons set forth in part IIIE of Justice Markman’s partial
concurrence and dissent, with which I fully concur and join. I also concur with
Justice Markman’s discussion of this issue, post at 4 n 1. Because the Court’s
limited grant order did not instruct the parties to brief this issue and because both
2
the litigants and the public should be able to rely on our orders, I would not
resolve issues in this Queen of Hearts fashion.1
Maura D. Corrigan
1
See Lewis Carroll, Alice’s Adventures In Wonderland (New York: Signet
Classic, 2000), ch 12, p 115 (“‘No, no!’ said the Queen. ‘Sentence first—verdict
afterwards.’”).
3
STATE OF MICHIGAN
SUPREME COURT
BRIAN POTTER,
Plaintiff-Appellant,
v No. 136336
RICHARD C. McLEARY, M.D., GARY
AUGUSTYN, M.D., ST. JOSEPH MERCY
HOSPITAL ANN ARBOR, d/b/a TRINITY
HEALTH-MICHIGAN, ROBERT
DOMEIER, D.O., and EMERGENCY
PHYSICIANS MEDICAL GROUP, P.C.,
Defendants,
and
KRISTYN H. MURRY, M.D., and HURON
VALLEY RADIOLOGY, P.C.,
Defendants-Appellees.
YOUNG, J. (concurring in part and dissenting in part).
I concur only in the result of the majority opinion, which holds that
defendant, Huron Valley Radiology, P.C. (Huron), is not entitled to dismissal.
I respectfully dissent from the majority’s holding that a plaintiff is required
to serve a professional corporation not enumerated in MCL 333.20106(1) with a
notice of intent to commence a medical malpractice action (NOI) under MCL
600.2912b (“the NOI statute”). Such a defendant is neither a “health professional”
nor a “health facility” under the NOI statute; thus, a plaintiff is not required to give
that defendant written notice under the NOI statute before commencing a medical
malpractice action. I would additionally hold that plaintiff’s claim against
defendant Huron was tolled pursuant to MCL 600.5856(d) because plaintiff
provided an NOI in compliance with the NOI statute for “a claim” that would have
been barred during the applicable notice period.
I further dissent from the majority’s analysis whether plaintiff’s NOI was
deficient. The NOI statute requires that the plaintiff provide a statement of “[t]he
factual basis for the claim.”1 A necessary factual predicate for a vicarious liability
claim is that there is an employer-employee (or other principal-agent) relationship,
but such a statement of defendant Huron’s relationship to the other individual
defendants is not found in plaintiff’s NOI; thus, plaintiff’s NOI is defective.
As the majority opinion itself demonstrates, it is swiftly becoming
increasingly acceptable for this Court to avoid attempting a precise or meaningful
statutory analysis in favor of imprecise vagaries and broad pronouncements. Such
analyses are favored only by those who seek a particular result and cannot find an
explicable justification for it. The majority’s analysis threatens to render the
statutory notice procedure nugatory and undermines, if not overrules, this Court’s
1
MCL 600.2912b(4)(a).
2
precedent.2 I believe that this Court’s decisions should be grounded in precise and
rigorous analysis of the relevant statutory text and that this Court should avoid
creating “inconsistencies among its cases and . . . reduce confusion in [the Court’s]
jurisprudence by overruling conflicting decisions.”3
Accordingly, I would reverse the Court of Appeals and hold that defendant
is not entitled to dismissal due to plaintiff’s defective NOI.
I. Plaintiff Was Not Required to Serve Defendant Huron, A Professional
Corporation, With An NOI.
The Court of Appeals held that plaintiff served defendant Huron, a
professional corporation, with a defective NOI and that entitled Huron to
dismissal. However, only a “health professional” and “health facility” are entitled
to notice under the NOI statute, MCL 600.2912b.4 Thus, a threshold issue is
whether defendant Huron is a “health professional” or “health facility.” If not, the
2
See Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679; 684
NW2d 711 (2004) (Roberts II).
3
Devillers v Auto Club Ins Ass’n, 473 Mich 562, 571 n 19; 702 NW2d 539
(2005).
4
MCL 600.2912b(1) provides:
Except as otherwise provided in this section, a person shall
not commence an action alleging medical malpractice against a
health professional or health facility unless the person has given the
health professional or health facility written notice under this section
not less than 182 days before the action is commenced. [Emphasis
added.]
3
defect in plaintiff’s NOI is rendered moot and does not entitle defendant to
dismissal.
Because plaintiff has persuasively argued in this Court that defendant
Huron is neither a “health professional” nor a “health facility” entitled to notice
under the NOI statute, I would hold that plaintiff’s defective NOI as to defendant
Huron was inconsequential.5
5
The NOI statute only applies to medical malpractice actions. This is
clearly a medical malpractice action, but not for the reasons stated by the majority.
Huron is subject to medical malpractice liability because a principal sued for the
medical malpractice of its agent is sued in medical malpractice.
The first step when determining whether a plaintiff has alleged medical
malpractice is to consider “whether [the claim] is being brought against someone
who, or an entity that, is capable of malpractice.” Bryant v Oakpointe Villa
Nursing Centre, Inc, 471 Mich 411, 420; 684 NW2d 864 (2004). This Court has
consistently explained that the accrual statute, MCL 600.5838a, does not define,
but rather, expands who may be sued for medical malpractice. Bryant, supra at
420-421; Kuznar v Raksha Corp, 481 Mich 169, 177; 750 NW2d 121 (2008).
Here, plaintiff raises a claim of vicarious liability, not direct liability, against
defendant Huron. See Cox v Flint Bd of Hosp Managers, 467 Mich 1, 11; 651
NW2d 356 (2002).
Michigan courts have consistently recognized actions against a principal in
medical malpractice under a vicarious liability theory when the principal was not
identified in the accrual statute but the agent was subject to medical malpractice
liability. See, e.g., Francisco v Parchment Med Clinic, PC, 407 Mich 325; 285
NW2d 39 (1979) (vicarious liability action against a professional corporation for
medical malpractice of a general practitioner and surgeon before the amendment
of MCL 600.5838a adding “professional corporation” in 1994, 1993 PA 78);
Becker v Meyer Rexall Drug Co, 141 Mich App 481; 367 NW2d 424 (1985)
(vicarious liability action against a pharmacy, which is not identified in that
accrual statute, Kuznar, supra, for medical malpractice of a pharmacist); Simmons
v Apex Drug Stores, Inc, 201 Mich App 250; 506 NW2d 562 (1993) (same).
Conversely, this Court has held that vicarious liability claims against
corporate entities were stated in ordinary negligence because the agent could not
be liable in medical malpractice. See Kambas v St Joseph’s Mercy Hosp of
4
This Court has previously defined the term “health facility” in the NOI
statute through reference to the Public Health Code (PHC),6 which defines “health
facility or agency” as:
Detroit, 389 Mich 249, 256; 205 NW2d 431 (1979) which was decided when the
accrual statute did not refer to a “licensed health facility or agency” or otherwise
include a hospital, and held that “The defendant hospital’s liability, being herein
predicated upon the theory of respondeat superior, and having determined that
nurses are not subject to the two year malpractice statute of limitations, we
conclude that the three year statute of limitations is applicable to injuries arising
from the negligent act of a nurse and is equally applicable to defendant employer
hospital herein”; Kuznar, supra at 172 (holding that because the employee could
not be liable in medical malpractice, “vicarious liability for [the employee’s
alleged negligence] by the pharmacy [which is not referenced in § 5838a(1)] may
also proceed under the three-year statute of limitations for ordinary negligence”).
Thus, when the principal is not identified in the accrual statute, a vicarious liability
claim is not automatically an ordinary negligence claim. Rather, the nature of the
claim depends on whether the agent is sued in medical malpractice.
The nature of the claim against the agent defines the vicarious liability
claim. If the agent is sued in medical malpractice, the vicarious liability claim
against the principal is in medical malpractice. This does not make the principal a
“licensed health care professional.” MCL 600.5838a(1)(b). It makes the principal
liable for the acts of a “licensed health care professional.”
Here, defendant Huron’s agents, defendants Dr. Kristyn Murry and Dr.
Richard McLeary, are radiologists subject to medical malpractice liability. There
is no dispute that plaintiff’s claim sounds in medical malpractice. See Bryant,
supra at 422; ante at 15 n 23. Accordingly, plaintiff’s vicarious liability claim
against defendant Huron is a medical malpractice claim.
6
See Omelenchuk v City of Warren, 461 Mich 567, 571 n 11; 609 NW2d
177 (2000). See also Bates v Gilbert, 479 Mich 451, 459; 736 NW2d 566 (2007)
(using the definition of “health profession” in the PHC to define that term in MCL
600.2169—expert testimony in medical malpractice actions).
In Omelenchuk, the plaintiffs’ decedent suffered a heart attack and the
plaintiff sued the defendant city and fire department alleging medical malpractice.
At issue was whether the plaintiffs’ complaint was timely filed in accordance with
the various notice periods in the NOI statute. A threshold issue was whether the
5
(a) An ambulance operation, aircraft transport operation,
nontransport prehospital life support operation, or medical first
response service.
(b) A clinical laboratory.
(c) A county medical care facility.
(d) A freestanding surgical outpatient facility.
(e) A health maintenance organization.
(f) A home for the aged.
(g) A hospital.
(h) A nursing home.
(i) A hospice.
(j) A hospice residence.
(k) A facility or agency listed in subdivisions (a) to (h)
located in a university, college, or other educational institution.[7]
Several of the health facilities listed could be incorporated as professional
corporations. Significantly, however, defendant Huron, although a professional
corporation, is not a listed health facility. Thus, defendant Huron is not a “health
facility.”
NOI statute applied to the plaintiffs’ claims against the defendants. This Court
held that the NOI statute applied because the PHC “defines ‘[h]ealth facility’ to
include an ‘ambulance operation’ . . . . [and t]he city of Warren has an ambulance
operation.” Omelenchuk, supra at 571 n 11.
7
MCL 333.20106(1).
6
The PHC does not define “health professional.” “Professional,” however,
is commonly defined as “a member of a profession, esp. one of the learned
professions.”8 The PHC defines “health profession” as “a vocation, calling,
occupation, or employment performed by an individual acting pursuant to a
license or registration issued under this article.”9 Thus, only an “individual” can
practice a “health profession.” Because the PHC defines “individual” as “a natural
person,”10 only a natural person can be a “health professional,” and defendant
Huron is therefore not a “health professional.”
Instead of applying these interpretations consistent with our precedent, the
majority relies on the definition of “licensed health care professional” in the
accrual statute, MCL 600.5838a:11 “an individual licensed or registered under
8
Random House Webster’s College Dictionary (1997). See MCL 8.3a
(“All words and phrases shall be construed and understood according to the
common and approved usage of the language . . . .”).
9
MCL 333.16105(2) (emphasis added).
10
MCL 333.1105(1). See MCL 333.16101(2), which provides that the
definitions in MCL 333.1101 et seq. are applicable to MCL 333.16105(2).
11
MCL 600.5838a, in pertinent part, provides:
(1) For purposes of this act, a claim based on the
medical malpractice of a person or entity who is or who holds
himself or herself out to be a licensed health care
professional, licensed health facility or agency, or an
employee or agent of a licensed health facility or agency who
is engaging in or otherwise assisting in medical care and
treatment, whether or not the licensed health care
professional, licensed health facility or agency, or their
employee or agent is engaged in the practice of the health
7
article 15 of the public health code . . . and engaged in the practice of his or her
health profession in a sole proprietorship, partnership, professional corporation, or
other business entity.”12 As stated, a professional corporation is not an
“individual.”
Interestingly, the majority simply disregards this Court’s very recent
interpretation of the definition of “licensed health care professional” in the accrual
statute. In Kuznar, the defendant pharmacy sought the benefit of the shortened
period of limitations for medical malpractice and argued that it was subject to
profession in a sole proprietorship, partnership, professional
corporation, or other business entity, accrues at the time of
the act or omission that is the basis for the claim of medical
malpractice, regardless of the time the plaintiff discovers or
otherwise has knowledge of the claim. As used in this
subsection:
(a) “Licensed health facility or agency” means a health
facility or agency licensed under article 17 of the public
health code, Act No. 368 of the Public Acts of 1978, being
sections 333.20101 to 333.22260 of the Michigan Compiled
Laws.
(b) “Licensed health care professional” means an
individual licensed or registered under article 15 of the public
health code, Act No. 368 of the Public Acts of 1978, being
sections 333.16101 to 333.18838 of the Michigan Compiled
Laws, and engaged in the practice of his or her health
profession in a sole proprietorship, partnership, professional
corporation, or other business entity. However, licensed
health care professional does not include a sanitarian or a
veterinarian.
12
MCL 600.5838a(1)(b).
8
medical malpractice liability because it was a “licensed health care professional”
under the accrual statute. Just last year, we unanimously rejected that argument
and explained that “[t]he flaw in defendant’s position is that the Public Health
Code defines ‘individual’ to mean ‘a natural person.’”13 The majority’s argument
here suffers the same flaw that we unanimously rejected. A professional
corporation is not “a natural person.” Furthermore, a professional corporation is
not “licensed or registered under article 15 of the public health code.” The
majority cannot acknowledge the existence of Kuznar without overruling it or
changing its rationale here. It has therefore chosen to ignore Kuznar.
The majority’s analysis is superficial. The majority merely announces that
it discovered the term “professional corporation” in a related statute and, therefore,
a professional corporation is entitled to notice. In serious statutory construction,
context matters and so does grammar.
In the accrual statute, “licensed health care professional” is defined by
modifying the subject, “an individual,” with the clause “engaged in the practice of
his or her health profession in a sole proprietorship, partnership, professional
corporation, or other business entity.” Thus, instead of providing that a
professional corporation is a “licensed health care professional,” the statute
provides that practice of a health profession in a professional corporation is simply
13
Kuznar, supra at 179, quoting MCL 333.1105(1).
9
one way for “an individual” to meet the requirements to be a “licensed health care
professional.”
The context of subsection (1) of the accrual statute also betrays the
majority’s position. It provides, in pertinent part, that
a claim based on the medical malpractice of a person . . . who is . . .
a licensed health care professional, . . . whether or not the licensed
health care professional . . . is engaged in the practice of the health
profession in a sole proprietorship, partnership, professional
corporation, or other business entity, accrues at the time of the act or
omission that is the basis for the claim of medical malpractice . . . .
[MCL 600.5838a(1).]
Thus, the reference to a professional corporation makes clear that practice in a
professional corporation does not affect when a medical malpractice claim
accrues.
Moreover, the majority’s interpretation is repudiated by the rule of statutory
interpretation that prohibits rendering statutory terms surplusage or nugatory.14
The majority proclaims that “[f]or all practical purposes, the PC and the health
care provider are treated as the same entity when professional services are
involved.”15 This pronouncement is designed to ignore reality and the actual text
of the statute.
14
See Odom v Wayne Co, 482 Mich 459, 471; 760 NW2d 217 (2008),
citing Herald Co, Inc v Eastern Michigan Univ Bd of Regents, 475 Mich 463, 470;
719 NW2d 19 (2006).
15
Ante at 12.
10
To arrive at its conclusion that a professional corporation is included in the
NOI statute, the majority conflates common-law principles with its obligation to
accurately construe this statute. It therefore emphasizes the unremarkable
proposition of common-law vicarious liability that a corporation can only act
through its officers and agents,16 but ignores the equally unremarkable proposition
that a corporation is a distinct legal entity.17 The flaw in this analysis is that it
imports common-law theories of liability to defeat the statutory enumeration of
covered entities that does not include a professional corporation.18 The
Legislature is free to include and exclude any entity from the statutory notice
procedure that it desires. By importing extra-textual theories of liability into this
statutory procedural requirement, the majority deprives the Legislature of that
option and renders surplusage portions of the statute the Legislature enacted.
16
See Mossman v Millenbach Motor Sales, 284 Mich 562, 568; 280 NW 50(1938), citing Garey v Kelvinator Corp, 279 Mich 174, 191; 271 NW 723 (1937).
17
See Bourne v Sanford, 327 Mich 175, 191; 41 NW2d 515 (1950) (“[A
corporation] is an artificial entity separate and distinct from the holders of its
individual stock.”), citing Trustees of Dartmouth College v Woodward, 17 US (4
Wheat) 518; 4 L Ed 629 (1819); Wells v Firestone Tire & Rubber Co, 421 Mich
641, 650; 364 NW2d 670 (1984) (“We recognize the general principle that in
Michigan separate entities will be respected.”).
18
Justice Markman makes the same error. See post at 8. Furthermore, my
analysis is neither inconsistent with Kuznar and the tolling statute nor internally
inconsistent. See post at 8 n 5. I emphasize that liability and procedure are
distinct matters. Here, Huron’s liability is provided by common law. See note 6
of this opinion. The pertinent procedure is provided by statute.
11
As stated, the majority holds that a professional corporation is a “health
professional” because the term “professional corporation” appears in the accrual
statute definition of “licensed health care provider.” That definition, however,
also includes any “other business entity.” By the majority’s logic, any “other
business entity” is a “health professional.” If that were true, then the terms “health
facility” in the NOI statute and “licensed health facility or agency” in the accrual
statute would be needless surplusage. For example, a hospital is listed in the PHC
definition used to define “health facility” and “licensed health care facility or
agency.”19 A hospital may be incorporated and, as such, is an “other business
entity.” Thus, under the majority’s analysis, a hospital is, “for all practical
purposes,” a “licensed health care professional.” The same is true for all other
entities listed in the PHC definition of “licensed health facility or agency.”20
Because it renders the term “health facility” in the NOI statute needless
surplusage, the majority’s interpretation is erroneous.
Because a defendant Huron is neither a “health facility” nor a “health
professional,” I would hold that plaintiff was not required to serve it with an NOI
19
See MCL 333.20106(1)(g); Omelenchuk, supra at 571 n 11; Kuznar,
supra at 177-179.
20
See MCL 333.20106(1).
12
before commencing a medical malpractice action against it.21 Thus, plaintiff’s
claim against defendant Huron was not subject to dismissal for a defective NOI.
II. The Statute of Limitations For Plaintiff’s Claim Against Defendant Huron Was
Tolled Under MCL 600.5856(d).
This Court ordered supplemental briefing on “whether, if a defendant
professional corporation is not an entity to whom notice is required to be provided
under MCL 600.2912b, the applicable statute of limitations, MCL 600.5805(6),
was nonetheless subject to statutory tolling provided in former MCL
600.5856(d).”22 If the statute of limitations was not tolled under former subsection
(d) of the tolling statute, MCL 600.5856, then plaintiff’s claim against defendant
Huron was filed after the period of limitations expired and defendant Huron would
be entitled to dismissal with prejudice. I am persuaded that the statute of
limitations for plaintiff’s claim against Huron was tolled under former subsection
(d).
21
Justice Markman contends that my analysis is inconsistent with Roberts I
and Roberts II. Post at 9 n 5. Justice Markman is certainly aware that no matter
how thoughtful the opinion, we are, as a practical matter, incapable of resolving
every potential issue that could conceivably arise in a case. Neither the parties nor
this Court raised the issue whether the professional corporation there was required
to receive an NOI in Roberts I or Roberts II. I prefer to base my analysis on issues
that we did address rather than consider inferences from issues that we did not and
were not asked to address.
22
483 Mich 922 (2009).
13
The tolling statute applicable here provided:23
The statutes of limitations or repose are tolled:
(a) At the time the complaint is filed and a copy of the
summons and complaint are served on the defendant.
(b) At the time jurisdiction over the defendant is otherwise
acquired.
(c) At the time the complaint is filed and a copy of the
summons and complaint in good faith are placed in the hands of an
officer for immediate service, but in this case the statute is not tolled
longer than 90 days after the copy of the summons and complaint is
received by the officer.
(d) If, during the applicable notice period under section
2912b, a claim would be barred by the statute of limitations or
repose, for not longer than a number of days equal to the number of
days in the applicable notice period after the date notice is given in
compliance with section 2912b. [Emphasis added.]
Plaintiff argues that because subsection (d) uses the indefinite article “a”,
not the definite article “the”, it is not claim specific and, therefore, tolls all claims
in the complaint. Defendant argues that tolling only applies for “a claim” to which
“the applicable notice period under section 2912b” applies.
I believe that the dispositive question is “what is being tolled?” The first
sentence of the tolling statute states that “[t]he statutes of limitations or repose are
tolled.” The plural form suggests that more than one statute of limitations can be
tolled by each subsection, including subsection (d).
23
The tolling statute was amended by 2004 PA 87, effective April 22,
2004.
14
By their nature, each of the other tolling provisions, § 5856(a) through (c),
apply to all claims in a complaint, not just individual claims. Thus, the plural form
in the prefatory clause is consistent with those provisions because they could
involve multiple statutes of limitations.
Based on the prefatory provision, there is a strong textual argument that
under subsection (d), “[t]he statutes of limitations . . . are tolled” for all claims in a
complaint when “during the applicable notice period under section 2912b, a claim
would be barred by the statute of limitations or repose.” Thus, for example, in a
complaint alleging a malpractice claim and a negligence claim, if the requirements
of subsection (d) are met, the “statutes of limitations . . . are tolled” for both
claims. I believe that this is the superior textual argument.
Although the prefatory clause does not specify which statutes of limitations
are tolled, there is no textual basis for restricting tolling to a single claim.24
Subsection (d) only requires “a claim” to be barred during the notice period and
24
Justice Markman misconstrues my analysis. I do not suggest that more
than one statute of limitations is always tolled. Post at 20. Certainly, if there is
only one claim, then only one statute of limitations is tolled. Nor do I suggest that
“all claims against all defendants in Michigan” are tolled by a single sufficient
NOI as to a single defendant. Post at 23 n 16. Hyperbole aside, I believe that
there is simply no textual basis for treating subsection (d) of the tolling statute
different than subsection (a) through (c) of the tolling statute. The Legislature is
perfectly capable of providing such a basis for distinction; see my discussion of
subsection (c) of the tolling statute as amended by 2004 PA 87 below.
15
notice to be given in compliance with the NOI statute; the prefatory clause
provides that multiple statutes are tolled as a result.25
I note that the current tolling provision is more precise on this issue. MCL
600.5856(c) provides:
The statutes of limitations or repose are tolled in any of the
following circumstances:
***
(c) At the time notice is given in compliance with the
applicable notice period under section 2912b, if during that period a
claim would be barred by the statute of limitations or repose; but in
this case, the statute is tolled not longer than the number of days
25
I agree with Justice Markman that “the notice of intent must contain all
of the statements required by § 2912b(4) as to ‘each particular [defendant] named
in the notice.’” Post at 21, quoting Roberts II, supra at 692. Because a plaintiff is
statutorily prohibited from commencing a medical malpractice action without first
giving the notice required under the NOI statute, dismissal is appropriate when a
plaintiff fails to give such notice. See MCL 600.2912b(1); Burton v Reed City
Hosp Corp, 471 Mich 745, 753; 691 NW2d 424 (2005) (holding that “dismissal is
an appropriate remedy for noncompliance with the notice provisions” of the NOI
statute). Thus, contrary to Justice Markman’s concern that my analysis would
deprive defendants the notice that the statutory procedure is designed to provide,
post at 24-25, a plaintiff’s failure to provide a defendant with a sufficient NOI still
entitles that defendant to dismissal, tolling notwithstanding.
Justice Markman suggests that I create a “trap for unwary plaintiffs.” Post
at 19. Admittedly, a plaintiff will be unable to re-file some claims—specifically,
those for which an NOI is required. However, as I discussed above, a professional
corporation that is not a “health facility” is not entitled to notice; thus, a defective
NOI is inconsequential for such a defendant. Moreover, if that claim is dismissed,
tolling afforded by subsection (d) of the tolling statute is not rendered moot
because the plaintiff will not need to wait the notice period to re-file his complaint.
It is for this reason that my interpretation does not create an irreconcilable conflict
with MCL 600.2912b(6).
16
equal to the number of days remaining in the applicable notice
period after the date notice is given. [Emphasis added.]
As indicated by the highlighted text, the significant distinction between current
subsection (c) and former subsection (d) is that the current provision restates what
is tolled (“the statute”), which specifies that tolling is limited to only one statute
while the former provision remained unlimited by the prefatory clause (“The
statutes”). Thus, current subsection (c) is expressly claim specific and only tolls
“the statute” for the previously referenced claim that would be barred.26
Here, plaintiff’s NOI was sufficient as to co-defendant Murry.27 Subsection
(d) applied to plaintiff’s claim against Murry because the period of limitations
26
Justice Markman correctly states that under my analysis of who must
receive an NOI and my interpretation of current subsection (c) of the tolling
statute, “the plaintiff would have to file his medical malpractice action against the
professional corporation before he filed a medical malpractice action against the
physician, if the period of limitations would have expired within 182 days after the
plaintiff served his notice of intent on the physician.” Post at 22 n 12. Although
this procedure seems unusual, we are without authority to question the wisdom of
the Legislature and “fix” perceived problems. See State Tax Law Cases, 54 Mich
350, 360; 20 NW 493 (1884) (“[W]e have no supervisory power in respect to
legislation; . . . the law-making power is not responsible to the judiciary for the
wisdom of its acts, and . . . , however unwise or impolitic their acts may appear,
they must stand as law unless the legislature has plainly overstepped its
constitutional authority . . . .”). Moreover, a plaintiff is not prohibited from
bringing an action against the principal without naming the agent, Krolik v Curry,
148 Mich 214, 223; 111 NW 761 (1907); Al-Shimmari v Detroit Med Ctr, 477
Mich 280, 294; 731 NW2d 29 (2007); 3 Am Jur 2d, Agency, § 333, p 699, and I
fully expect that such actions would be consolidated, see MCR 2.505(A)(2), if the
action against the agent proceeds after the notice procedure.
27
See Potter v McLeary (On Remand), 278 Mich App 279; 748 NW2d 599
(2008).
17
would have expired during the notice period if the statute of limitations was not
tolled. Thus, “notice [was] given in compliance with section 2912b” for “a claim”
that “would [have been] barred by the statute of limitations,” so “[t]he statutes of
limitations . . . [were] tolled.” Accordingly, I would reverse the Court of Appeals
and hold that defendant Huron was not entitled to dismissal.
III. Plaintiff’s NOI Was Deficient.
I join part III(E) of Justice Markman’s dissent28 regarding the majority’s
decision to address and resolve an issue that the parties were specifically directed
not to address. The majority has deprived the parties of an opportunity to brief
and argue the merits of the sufficiency of plaintiff’s NOI. As such, the majority’s
action suggests that parties should follow our grant orders at their peril. No
serious court should function in this fashion.
Although not properly before this Court nor pertinent to my analysis, I
address the majority’s analysis that plaintiff’s NOI was not deficient because it
will likely affect how lower courts evaluate an NOI. I believe that plaintiff’s NOI
was deficient and the majority’s analysis is no more than a shallow gloss over the
statutory text.
As stated, a plaintiff must serve an NOI before commencing a medical
malpractice action against a health facility or health professional.29 In subsection
28
Specifically, post at 28-30 and nn 22 & 23. I also join post at 4 n 1.
29
MCL 600.2912b(1).
18
(4) of the NOI statute, the Legislature has enumerated six specific topics that the
plaintiff must address in his NOI:
The notice given to a health professional or health facility
under this section shall contain a statement of at least all of the
following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the
claimant.
(c) The manner in which it is claimed that the applicable
standard of practice or care was breached by the health professional
or health facility.
(d) The alleged action that should have been taken to achieve
compliance with the alleged standard of practice or care.
(e) The manner in which it is alleged the breach of the
standard of practice or care was the proximate cause of the injury
claimed in the notice.
(f) The names of all health professionals and health facilities
the claimant is notifying under this section in relation to the claim.
“Subsections 2912b(1) and (4) clearly place the burden of complying with the
notice of intent requirements on the plaintiff.”30
In Roberts II, this Court established the standard for whether an NOI
complied with the statutory requirements of subsection (4) of the NOI statute: “the
claimant is required to make good-faith averments that provide details that are
responsive to the information sought by the statute and that are as particularized
30
Roberts I, supra at 66.
19
as is consistent with the early stages of the proceedings.”31 An NOI that does not
meet this standard is deficient.
Subsection (a) requires the plaintiff to provide a statement of “[t]he factual
basis for the claim.” Here, plaintiff has alleged that defendant Huron is
vicariously liable for the acts of its agent, defendants Murry, Dr. Richard D.
McLeary, and Dr. Gary Augustyn. Thus, “the claim” is vicarious liability. An
essential factual predicate for plaintiff’s vicarious liability claim is that the
individual defendants were defendant Huron’s employees. Nowhere in the notice
does plaintiff suggest that any employer-employee (or other principal-agent
relationship) existed between the defendants.32 Because plaintiff omitted “[t]he
factual basis for the claim,” he failed to meet the Roberts II standard and,
therefore, the NOI is deficient.
The majority holds that there is “no language in [subsection (4) of the NOI
statute] that requires a claimant to set forth the nature of the relationship between
the parties to be sued.”33 To support its conclusion, the majority states that no
31
Roberts II, supra at 701.
32
As this Court stated in Roberts II, “the claimant is not required to craft
her notice with omniscience.” Id. at 691. All that was required of plaintiff was a
good-faith averment of the relationship that served as the factual basis for his
vicarious liability claim, Roberts II, supra at 701; the claimant was not required to
know the precise employment relationship between the defendants. See ante at 22
n 29.
33
Ante at 22.
20
such requirement is found in subsection (f).34 That is true, but no more sufficient
than stating that no such requirement is found in subsection (e). The majority
offers no discussion of subsection (a)—“The factual basis for the claim”—and
why a principal-agent relationship is not part of the factual basis of plaintiff’s
vicarious liability claim. The majority proclaims that it is not “necessary to plead
facts supporting vicarious liability.”35 As stated, here, “the claim” is vicarious
liability. Thus, the majority has proudly announced that it is not necessary to state
the factual basis for the claim.36 This is most likely a relief to plaintiffs and a
shock to the Legislature and anyone who has read the NOI statute since it was
34
Ante at 22.
35
Ante at 23 n 30. I do not contend that the plaintiff must “state the phrase
‘vicarious liability.’” Ante at 23 n 30. That is a legal theory. Rather, plaintiff
must state “[t]he factual basis for the claim.” MCL 600.2912b(4)(a).
36
The majority asserts that subsection (4) of the NOI statute does not
require a plaintiff to state facts supporting a vicarious liability claim because the
majority has managed to conjure up a way that the Legislature “could have”
phrased subsection (4) of the NOI statute. Ante at 23 n 30. The Legislature is not
required to place the judiciary in checkmate when enacting its policy choices.
Rather, it is our obligation to “to discern and give effect to the intent of the
Legislature . . . by examining the language of the statute itself [because the] words
of a statute provide ‘the most reliable evidence of its intent . . . .’” Sun Valley
Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999), quoting United
States v Turkette, 452 US 576, 593; 101 S Ct 2524; 69 L Ed 2d 246 (1981). The
majority offers no discussion of the meaning of the words actually enacted in
subsection (a). Nor does the majority state why an agent-principal relationship is
not part of “[t]he factual basis” for plaintiff’s vicarious liability claim. The
majority reaches its desired result using this faulty analysis and does so mindless
of the consequences of its rule by fiat.
21
enacted. The majority cannot square its analysis with the text of the relevant
statute, so it does not attempt such folly.
The majority buttresses its conclusion with its assessment of defendant
Huron’s subjective knowledge: “Certainly they are fully aware of the legal
relationship between them.”37 The majority’s reliance on the knowledge of this
defendant is not a relevant assessment of what the Legislature has required a
plaintiff to provide in its NOI.
This Court previously rejected such a construction of subsection (4) of the
NOI statute for an obvious reason: it would render the statutory notice procedure
completely nugatory.38 The NOI statute, in plain and unambiguous terms, places
the burden on the plaintiff to provide “written notice under this section”39 that
“contain[s] a statement”40 of six specific topics. Thus, the Legislature has not
required that the defendant “fill in the blanks.” Undeterred, the majority replaces
the legislative standards with its own requirement and creates a slippery slope in
which the plaintiff complies with the NOI statute by simply declaring “I went to
37
Ante at 22.
38
See Roberts II, supra at 696 n 14.
39
See MCL 600.2912b(1), which provides 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.”
40
MCL 600.2912b(4).
22
the doctor and something bad happened.”41 Under the majority’s analysis, the
burden is on the defendant to fill in the remainder of the missing but required NOI
information.
The majority fails to comprehend the significance of its decision. Our
decisions do not resolve only the case before us, but rather, all cases subsequently
filed in Michigan raising similar issues; we are obligated to ensure that all cases
are resolved in a manner that is consistent with the text of the applicable statute.42
Consider, for example, a corporate defendant that never employed or worked with
any of the other individual defendants listed—one that is named in the NOI
through mistake or error. How does an NOI that fails to allege any relationship
between the corporate defendant and the individual defendants inform that
defendant of the factual basis for the claim against it? The majority’s analysis
threatens to deprive a named defendant of the notice that the statutory procedure is
designed to provide.
The justification that a particular defendant might have knowledge about
data the plaintiff is statutorily obligated to supply is just a fancy way for the
41
Roberts II, supra at 697 n 15.
42
See Cameron v Auto Club Ins Ass’n, 476 Mich 55, 66; 718 NW2d 784
(2006), citing Marbury v Madison, 5 US (1 Cranch) 137, 177; 2 L Ed 60 (1803)
for the fundamental proposition that “ours is to declare what the law is, not what it
ought to be.”
23
majority to subvert a statute it does not like. At the very least, the majority is not
pretending any longer to enforce the plain language of the NOI statute.
The majority’s lack of concern for the implications of its discussion is
illustrated by its treatment of Roberts II. The majority purports to leave for
another day the question whether Roberts II was correctly decided.43
43
Ante at 25 n 32. It is quickly becoming a new favored practice of the
majority to flag decisions of the past decade and invite challenges to those
decisions. See Bush v Shabahang, 484 Mich ___, ___; ___ NW2d ___ (2009),
decided July 29, 2009 (Docket Nos. 136617, 136653, and 136983), slip op at 19 n
34. It is difficult to reconcile this practice with the majority’s previous claims of
fidelity to stare decisis. See, e.g., People v Gardner, 482 Mich 41, 87; 753 NW2d
78 (2008) (Kelly, J., dissenting) (“Our decision about whether an earlier case must
be overruled should be guided by more than a notion that the case was incorrectly
decided.”); Pohutski v City of Allen Park, 465 Mich 675, 712; 614 NW2d 219
(2002) (Kelly, J., dissenting) (“[I]f each successive Court, believing its reading is
correct and past readings wrong, rejects precedent, then the law will fluctuate from
year to year, rendering our jurisprudence dangerously unstable.”); Devillers, supra
at 620 (Weaver, J., dissenting) (“Under the doctrine of stare decisis, it is necessary
to follow earlier judicial decisions when the same points arise again in
litigation.”); Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 278; 731 NW2d
41 (2007) (Cavanagh, J., dissenting) (“Under the doctrine of stare decisis,
principles of law deliberately examined and decided by a court of competent
jurisdiction become precedent and should not be lightly departed. Absent the
rarest circumstances, we should remain faithful to established precedent.”); People
v Hawkins, 468 Mich 488, 517-518; 668 NW2d 602 (2003) (Cavanagh, J.,
dissenting) (“We have overruled precedents when the intervening developments of
the law has ‘removed or weakened the conceptual underpinnings from the prior
decision, or where the later law has rendered the decision irreconcilable with
competing legal doctrines or policies.’ Absent those changes or compelling
evidence bearing on Congress’ original intent, our system demands that we adhere
to our prior interpretations of statutes.”), quoting Patterson v McLean Credit
Union, 491 US 164, 173; 109 S Ct 2363; 105 L Ed 2d 132 (1989). See also Todd
C. Berg, Esq., Hathaway Attacks, Michigan Lawyers Weekly, October 27, 2008,
in which Justice Hathaway was quoted: “I believe in stare decisis. Something
must be drastically wrong for the court to overrule”; Lawyers’ Election Guide:
Judge Diane Marie Hathaway, Michigan Lawyers Weekly, October 30, 2006, in
24
Nevertheless, it states that “the issue is whether [Huron] could reasonably be held
to comprehend the nature of the claims being asserted against it.”44 That standard
is distinctly not the Roberts II standard set out above. Indeed, that standard is
similar to the standard articulated by the dissent in Roberts II: “The statement
simply must provide notice of a potential claim sufficient to allow potential
defendants to ascertain the basis for the claim and enter into settlement
discussions.”45 Once again, such a view is inconsistent with the statutory text.
This continues a disturbing trend in which the majority
overrules by indirection, or at least leaves the impression that it is
doing so, thereby sowing the seeds of confusion and making it
difficult for the citizens of this state to comprehend precisely what
our caselaw requires. This appears to be an unfortunate return to our
predecessors’ past practice of “frequently pa[ying] little attention to
the inconsistencies among its cases and declin[ing] to reduce
confusion in [the Court’s] jurisprudence by overruling conflicting
decisions.”[46]
IV. Conclusion
I do not believe that defendant Huron is a “health professional” or “health
facility” entitled to notice under the NOI statute and, therefore, plaintiff was not
which Justice Hathaway, then running for a position on the Court of Appeals, was
quoted: “Too many appellate decisions are being decided by judicial activists who
are overturning precedent.”
44
Ante at 26.
45
Roberts II, supra at 713-714 (Kelly, J., dissenting).
46
Beasley v Michigan, 483 Mich 1025, 1030 (2009) (Corrigan, J.,
dissenting), quoting Devillers, supra at 571 n 19.
25
required to serve defendant Huron with an NOI. I also believe that plaintiff’s
claim against defendant Huron was tolled pursuant to subsection (d) of the tolling
statute. Accordingly, I would reverse the Court of Appeals and hold that
defendant Huron is not entitled to dismissal because of plaintiff’s defective NOI.
Robert P. Young, Jr.
26
STATE OF MICHIGAN
SUPREME COURT
BRIAN POTTER,
Plaintiff-Appellant,
v No. 136336
RICHARD C. McLEARY, M.D., GARY
AUGUSTYN, M.D., ST. JOSEPH MERCY
HOSPITAL ANN ARBOR, d/b/a TRINITY
HEALTH-MICHIGAN, ROBERT
DOMEIER, D.O., and EMERGENCY
PHYSICIANS MEDICAL GROUP, P.C.,
Defendants,
and
KRISTYN H. MURRY, M.D. and HURON
VALLEY RADIOLOGY, P.C.,
Defendants-Appellees.
____________________________________
MARKMAN, J. (concurring in part and dissenting in part).
I agree with the majority that plaintiff’s notice of intent was sufficient with
regard to defendant Kristyn Murry and that defendant Huron Valley Radiology,
P.C. (HVR) was entitled to a notice of intent. However, 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 applicable standard of practice or care alleged by the claimant”
with regard to HVR, as is required by MCL 600.2912b(4)(b). As this Court
explained in Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 693-
694; 684 NW2d 711 (2004) (Roberts II), a notice of intent must include a
“particularized standard for each of the professionals and facilities named in the
notices,” which necessarily must indicate “whether plaintiff [is] alleging that [the]
defendants were vicariously or directly liable to [the plaintiff].” Because the
notice of intent here did not include such a statement, it was clearly defective with
regard to HVR.
We held in Roberts v Mecosta Co Gen Hosp, 466 Mich 57; 642 NW2d 663
(2002) (Roberts I), that a defective notice of intent does not toll the statute of
limitations. Because the period of limitations in a medical malpractice action is
two years, MCL 600.5805(6), and because the alleged malpractice in this case
occurred on June 7, 2001 and the complaint was not filed until November 4, 2003,
the complaint was untimely filed, and thus the action against HVR is barred by the
statute of limitations. I would affirm the portions of the Court of Appeals opinion
that held that the notice of intent was sufficient as to defendant Murry and
insufficient as to defendant HVR, but reverse the portions of that opinion that held
that the defective notice of intent tolled the statute of limitations and, thus, that a
dismissal without prejudice was appropriate. The action against HVR should be
dismissed with prejudice.
I. FACTS AND HISTORY
The alleged medical malpractice occurred on June 7, 2001. Plaintiff alleges
that Murry, a radiologist working for HVR, “failed to properly interpret and report
2
back the true and correct results of the MRI . . . .” He further alleges “[t]hat as a
result of the . . . delay in surgical [intervention, he] has suffered permanent
neurologic injury and deficit.” On May 30, 2003, just eight days before the
expiration of the two-year period of limitations, plaintiff served defendants Murry
and HVR with a notice of intent to file suit. On November 4, 2003, plaintiff filed
his medical malpractice complaint against defendants.
The trial court denied defendants’ motion for summary disposition. The
Court of Appeals reversed, concluding that because plaintiff’s affidavits of merit
were defective, the complaint had to be dismissed with prejudice. Potter v
McLeary, 274 Mich App 222; 732 NW2d 600 (2007). This Court reversed “the
portion of the judgment of the Court of Appeals dismissing the complaint with
prejudice, because the dismissal should have been without prejudice as to the
affidavit of merit issue.” Potter v McLeary, 480 Mich 915 (2007) (emphasis in the
original). We remanded to the Court of Appeals for consideration of defendants’
remaining issues. On remand, the Court of Appeals held that plaintiff’s notice of
intent was sufficient as to defendant Murry, but insufficient as to defendant HVR.
However, the Court of Appeals held that the defective notice of intent tolled the
statute of limitations, and thus dismissed without prejudice as to HVR. Potter v
McLeary, 278 Mich App 279; 748 NW2d 599 (2008).
In Docket No. 136336, plaintiff appealed the portion of the Court of
Appeals decision that held that the notice of intent was defective as to HVR, and
in Docket Nos. 136338 and 136339, defendants appealed the portion of the Court
3
of Appeals decision that held that the defective notice of intent tolled the statute of
limitations, and, thus, that a dismissal without prejudice was appropriate, and the
portion that held that the notice of intent was sufficient as to defendant Murry. In
Docket No. 136336, we granted plaintiff’s application “limited to the issue
whether defendant Huron Valley Radiology, P.C., is a ‘health facility or agency’
to which a plaintiff is required to provide notice under MCL 600.2912b(1).” 482
Mich 1004 (2008). In Docket Nos. 136338 and 136339, we held defendants’
application for leave to appeal in abeyance pending the decision in Docket No.
136336. 756 NW2d 85 (2008).1 Subsequently, in Docket No. 136336, we
1
Despite this abeyance, and despite the fact that the parties have not been
given an opportunity to brief or argue the issues raised in defendants’ application
for leave to appeal (Docket Nos. 136338 and 136339), or even, given this Court’s
limited grant order, the issue raised in plaintiff’s application for leave to appeal
(the sufficiency of the notice of intent as to HVR), the majority addresses the issue
raised in plaintiff’s application and one of the issues raised in defendants’
application (the sufficiency of the notice of intent as to Murry), and then
announces that it is now denying defendants’ application. Only because the
majority addresses these issues in its opinion today do I also address these.
Contrary to the majority’s contention, ante at 8, neither one of the parties argued
the sufficiency of the notice of intent in their briefs filed after this Court granted
plaintiff’s application limited to a different issue, and only the plaintiff briefly
raised the sufficiency issue at oral arguments; defendant did not say anything at all
regarding the issue (which was to be expected given that this Court had not
granted leave on that issue). The majority contends that “[d]efendant [HVR]
addressed the sufficiency of the NOI issue extensively in its brief on appeal.”
Ante at 8 n 8. However, page one of defendant’s brief states, “This brief concerns
the singular issue of whether Appellee, HVR, is entitled to pre-suit notice pursuant
to MCL 600.2912b(1).” The only mention thereafter regarding the sufficiency
issue is in the “procedural history” section in which defendant describes its bases
for its motion for summary disposition. There is no discussion of the sufficiency
issue in defendant’s “Argument” section of its brief. Finally, contrary to the
majority’s contention, ante at 9 n 8, defendant’s prayer for relief does not “ask[] us
4
directed the parties to file supplemental briefs addressing “whether, if a defendant
professional corporation is not an entity to whom notice is required to be provided
under MCL 600.2912b, the applicable statute of limitations, MCL 600.5805(6),
was nonetheless subject to statutory tolling provided in former MCL
600.5856(d).” 483 Mich 922 (2009).
II. STANDARD OF REVIEW
“Questions of statutory interpretation are questions of law that this Court
reviews de novo.” People v Swafford, 483 Mich 1, 7; 762 NW2d 902 (2009). A
trial court’s determination regarding a motion for summary disposition is also
reviewed de novo. Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217
(2008).
III. ANALYSIS
A. Notice of Intent
I agree with the majority that HVR was entitled to a notice of intent. The
majority concludes that HVR was entitled to a notice of intent because “the action
is one sounding in medical malpractice.” Ante at 3. Although I agree that the
action here is “one sounding in medical malpractice,” this is only the first step in
the analysis to determine whether a notice of intent was required.
MCL 600.2912b(1) provides:
to decide the remaining issues in plaintiff’s application for leave to appeal.”
Instead, defendant expressly states that “Plaintiff-Appellant’s Application For
Leave To Appeal should be denied.”
5
Except as otherwise provided in this section, a person shall
not commence an action alleging medical malpractice against a
health professional or health facility unless the person has given the
health professional or health facility written notice under this section
not less than 182 days before the action is commenced.
Because § 2912b(1) only applies to an “action alleging medical malpractice,” the
majority is correct that “the first step in the analysis” is to determine whether the
action is one “alleging medical malpractice.” Ante at 14. It is undisputed that the
action at issue here is such an action, because it “allege[s] an action that (1)
occurred within the course of a professional relationship and (2) poses questions of
medical judgment outside the realm of common knowledge and experience.”
Kuznar v Raksha Corp, 481 Mich 169, 176-177; 750 NW2d 121 (2008), citing
Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 422; 684 NW2d 864
(2004).2
However, despite the majority’s initial recognition that whether this action
is one “alleging medical malpractice” is only the “first step in the analysis” in
determining whether a notice of intent was required, ante at 14, the majority does
not address the second step. Rather, it concludes that “[b]ecause § 2912b(1)
clearly requires a claimant to provide a timely NOI before commencing a medical
2
In the instant case, the services provided were unquestionably professional
services rendered by a licensed health care professional, i.e., a radiologist, and
thus the claims at issue here allege an action that occurred in the course of a
professional relationship. I agree with Justice Young that HVR is “subject to
medical malpractice liability because a principal sued for the medical malpractice
of its agent is sued in medical malpractice.” Ante at 4 n 5.
6
malpractice action, plaintiff was required to provide this PC with a timely NOI.”
Ante at 20. However, § 2912b(1) requires a notice of intent only if: (a) the action
is one “alleging medical malpractice”; and (b) the defendant is a “health
professional or health facility.” 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 professional” for the purposes
of § 2912b. I reach this conclusion on the basis that plaintiff is seeking to hold
HVR vicariously liable for its employee’s alleged malpractice and such employee
is unquestionably a “health professional.” In Cox v Flint Bd of Hosp Managers,
467 Mich 1, 11; 651 NW2d 356 (2002), this Court explained that under the
principle of vicarious liability, “the principal ‘is only liable because the law
creates a practical identity with his [agents] . . . .’” (Citation omitted.)
Subsequently, in Nippa v Botsford Gen Hosp (On Remand), 257 Mich App 387,
391-392; 668 NW2d 628 (2003), on remand from this Court for reconsideration in
light of Cox, the Court of Appeals explained:
For all practical purposes the hospital stands in the shoes of
its agents (the doctors).
3
I agree with Justice Young, ante at 9, 12, that the majority errs in
concluding that HVR is entitled to a notice of intent simply because the words
“professional corporation” can be found in MCL 600.5838a. I also agree with
him, ante at 6, that HVR is not a “health facility” because it is not a clinical
laboratory, a hospital, a nursing home, or any other type of facility listed in MCL
333.20106(1).
7
Thus, we opine that with regard to vicarious liability,
medical-malpractice law applicable to a physician is also applicable
to the physician’s hospital. . . . All procedural requirements are
applicable to the hospital in the same manner and form as [they are
to] the doctor . . . . This is so because the law creates a practical
identity between a principal and an agent . . . .
. . . Vicarious liability imposes a legal fiction on defendant
hospital providing that the principal is only liable because the law
creates a practical identity with its agents . . . . The law treats the
principal and the agent as sharing a single identity . . . .[4]
Because, with regard to vicarious liability, “[t]he law treats the principal and the
agent as sharing a single identity,” and because, in the instant case, plaintiff is
seeking to hold HVR vicariously liable for its employee’s alleged malpractice, and
because such employee is unquestionably a “health professional” entitled to a
notice of intent, the law treats HVR as also being a “health professional” entitled
to a notice of intent.5 Therefore, plaintiff was required to provide a notice of
4
After the Court of Appeals rendered its decision on remand from this
Court, this Court denied leave to appeal. 469 Mich 1005 (2004).
5
Justice Young concludes that the action against HVR is a medical
malpractice action because plaintiff is seeking to hold HVR vicariously liable for
the actions of one of its employees who is a health professional, but then
overlooks vicarious liability in terms of determining whether HVR is entitled to a
notice of intent. Because a medical malpractice action can only be brought against
“‘a person or entity who is or who holds himself or herself out to be a licensed
health care professional, licensed health facility or agency, or an employee or
agent of a licensed health facility or agency’ who is engaging in or otherwise
assisting in medical care and treatment,” Kuznar, 481 Mich at 177, quoting in part
MCL 600.5838a(1), either Justice Young’s position is inconsistent with Kuznar
and § 5838a(1) or it is internally inconsistent. That is, pursuant to Kuznar, Justice
Young must determine that HVR is a “health professional” in order to conclude
that this is a medical malpractice action; however, if he were to determine that
HVR is a “health professional” for purposes of concluding that HVR can be sued
for medical malpractice, he could not then also determine that HVR is not a
8
intent to HVR before commencing a medical malpractice action in accordance
with § 2912b.
B. Sufficiency
As discussed above, § 2912b(1) provides, “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.”
(Emphasis added.) MCL 600.2912b(4) provides:
The notice given to a health professional or health facility
under this section shall contain a statement of at least all of the
following:
“health professional” for purposes of concluding that HVR is not entitled to a
notice of intent. It simply cannot be both ways. If HVR is subject to a medical
malpractice action on the basis of vicarious liability, HVR is entitled to a notice of
intent on the basis of vicarious liability. Contrary to Justice Young’s contention,
ante at 9, concluding that HVR is a “health professional” for purposes of § 2912b
because plaintiff is seeking to hold HVR vicariously liable for the actions of one
of its employees who is unquestionably a “health professional,” is not inconsistent
with Kuznar’s conclusion that the defendant pharmacy in that case was not a
“health professional” because in Kuznar the plaintiff was seeking to hold the
pharmacy vicariously liable for the actions of one of its employees who was
unquestionably not a “health professional.” That is, Kuznar did not involve the
kind of case that we are dealing with here, in which the plaintiff is seeking to hold
the defendant vicariously liable for the actions of its employee, who is
unquestionably a “health professional.” Indeed, Justice Young’s position is
inconsistent with prior caselaw. See, for example, Roberts I, 466 Mich at 59, and
Roberts II, 470 Mich at 693, in which this Court held (in thoughtful opinions
authored by Justice Young) that because the plaintiff’s notice of intent was
defective as to the professional corporation, the statute of limitations was not
tolled. Why would it matter that the notice of intent was defective as to the
professional corporation if a professional corporation is never entitled to a notice
of intent in the first place?
9
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the
claimant.
(c) The manner in which it is claimed that the applicable
standard of practice or care was breached by the health professional
or health facility.
(d) The alleged action that should have been taken to achieve
compliance with the alleged standard of practice or care.
(e) The manner in which it is alleged the breach of the
standard of practice or care was the proximate cause of the injury
claimed in the notice.
(f) The names of all health professionals and health facilities
the claimant is notifying under this section in relation to the claim.
[Emphasis added.]
In Roberts II, 470 Mich at 700-701, this Court explained:
Under MCL 600.2912b(4), a medical malpractice claimant is
required to provide potential defendants with notice that includes a
“statement” of each of the statutorily enumerated categories of
information. Although it is reasonable to expect that some of the
particulars of the information supplied by the claimant will evolve as
discovery and litigation proceed, the claimant is required to . . .
provide details that are responsive to the information sought by the
statute and that are as particularized as is consistent with the early
notice stage of the proceedings. . . . This is not an onerous task: all
the claimant must do is specify what it is that she is claiming under
each of the enumerated categories in § 2912b(4). Although there is
no one method or format in which a claimant must set forth the
required information, that information must, nevertheless, be
specifically identified in an ascertainable manner within the notice.
[Emphasis in the original.]
In Roberts II, the plaintiff brought a medical malpractice action against a hospital,
a professional corporation, an obstetrician, a physician’s assistant, and an
emergency room physician. This Court held that the plaintiff must “aver the
10
specific standard of care that she is claiming to be applicable to each particular
professional or facility that is named in the notice.” Id. at 692 (emphasis in the
original). Because the notice of intent “fail[ed] to indicate whether plaintiff was
alleging that these defendants [the hospital and professional corporation] were
vicariously or directly liable to her,” the plaintiff’s notice of intent failed to allege
“a standard specifically applicable to the defendant facilities . . . .” Id. at 693. For
this reason, Roberts II held that the notice of intent was insufficient as to the
defendant hospital and the defendant professional corporation.
In the instant case, the Court of Appeals similarly held that the notice of
intent was insufficient as to HVR because it did not state the applicable standard
of practice or care as is required by § 2912b(4)(b).6 I agree. The notice of intent
completely fails to indicate what standard of practice or care plaintiff believes is
applicable to defendant HVR, and it does not indicate whether plaintiff is alleging
that defendant HVR is directly or vicariously liable to him. Indeed, as the Court
of Appeals held, “The standard of care completely fails to make any reference to
6
Defendant Murry argues that the notice of intent does not satisfy the
requirements set forth in § 2912b(4)(b)-(d). Although I agree with the majority
that the notice of intent is sufficient as to defendant Murry, I cannot say that I
agree with the majority’s analysis because it provides none. In my judgment, the
notice of intent does satisfy § 2912b(4)(b) because it states, “The standard of care
required Dr.[] Murry . . . to correctly read, interpret and report the correct results
to the emergency room under the circumstances.” In addition, the notice of intent
does satisfy § 2912b(4)(c) and (d) because it states that defendant Murry “failed to
properly interpret the MRI images and convey accurate information to the
emergency room physicians in charge of the patient that night.”
11
defendant Huron Valley Radiology.” Potter, 278 Mich App at 284. In fact, the
notice of intent as a whole only references HVR twice: once on the first page
where it lists the health care professionals and entities to whom the notice of intent
is intended to apply, and then again on the last page, where it lists the health care
professionals and entities being notified of the action. Because the notice of intent
does not contain a statement indicating what standard of practice or care is
allegedly applicable to HVR, as is required by § 2912b(4)(b), I agree with the
Court of Appeals that the notice of intent is insufficient as to defendant HVR.
Although the majority “question[s] whether Roberts II was correctly
decided,” ante at 25 n 32,7 it does not expressly overrule Roberts II because it
concludes that this decision is not “dispositive.” It is not dispositive, says the
majority, because “Roberts II opined that because there was confusion with regard
to whether the claim was for direct or vicarious liability, the PC was unable to
understand the nature of the claims being asserted,” but, “[i]n the case before us,
7
Specifically, the majority “question[s] whether Roberts II was correctly
decided because it adds a requirement not found in the language of the statute;
namely, that statements be ‘particularized.’” Ante at 25 n 32. Despite the fact
then that § 2912b(1) clearly requires a notice of intent to be sent to each defendant,
and § 2912b(4) clearly requires the notice of intent to contain certain statements,
the majority apparently would prefer to conclude that the notice of intent is not
required to contain each of these statements as to each defendant. For example,
the majority apparently would hold that if a plaintiff sues both a nurse and a
physician for their own direct malpractice, as long as the notice of intent contains
the required “applicable standard of practice or care statement” as to the nurse, the
notice would be sufficient as to the physician as well. Fortunately, the majority
leaves this issue for another day, one that hopefully will not arrive soon.
12
no such potential for confusion exists . . . .” Ante at 25 n 33. First, that is not what
Roberts II held; rather, it held, 470 Mich at 693, 702, that because the plaintiff’s
notice of intent did not include a statement “indicat[ing] whether plaintiff was
alleging that these defendants were vicariously or directly liable to her,” “plaintiff
did not fulfill her obligation under § 2912b . . . .” Second, as with Roberts II, a
“potential for confusion,” ante at 25 n 32, does exist here because HVR could be
sued on the basis of either direct or vicarious liability, or both, and the notice of
intent does not indicate on which basis plaintiff intended to sue HVR.
Furthermore, that Roberts II involved a situation in which the notice of
intent may have implied that the plaintiff was seeking to hold the defendants
directly liable, while the complaint implied that the plaintiff was seeking to hold
the defendants vicariously liable, whereas in the instant case nothing can be
implied from plaintiff’s notice of intent regarding direct or vicarious liability,
while the complaint seeks to hold HVR vicariously liable, is a distinction utterly
without any significance in this case. The issue here is whether the notice of intent
was sufficient as to HVR. Being a professional corporation, HVR could be sued
on the basis of either direct liability or vicarious liability. See Cox, 467 Mich at
11, stating that “[a] hospital may be 1) directly liable for malpractice, through
claims of negligence in supervision of staff physicians as well as selection and
retention of medical staff, or 2) vicariously liable for the negligence of its agents.”
MCL 600.2912b(4)(b) requires the notice of intent to contain a statement of “[t]he
applicable standard of practice or care alleged by the claimant.” Obviously, the
13
“applicable standard of practice or care” would depend on whether the claimant is
suing the professional corporation on the basis of direct liability or vicarious
liability. Accordingly, a notice of intent must indicate whether the claimant is
suing the professional corporation on the basis of direct liability, vicarious
liability, or both.
The majority holds that “when vicarious liability is the only claim
asserted,” it is unnecessary to “specifically set forth the legal theory of vicarious
liability within the NOI.” Ante at 23. However, if the notice of intent does not
indicate that the plaintiff is planning on suing the defendant professional
corporation on the basis of vicarious liability, how will the defendant know that
“vicarious liability is the only claim asserted”? The majority fails to recognize
that the whole point of the exercise of a notice of intent is to apprise the defendant
of the claims that the plaintiff plans to bring before a complaint is filed. Here,
because the notice of intent was silent on the subject, HVR did not know until
plaintiff filed his complaint that plaintiff was suing on the basis of vicarious
liability. That is, HVR did not know what “standard of practice or care” plaintiff
was alleging that HVR breached until plaintiff filed his complaint against HVR.
This is most clearly a violation of § 2912b(4)(b).8
8
The majority concludes that HVR’s claim that plaintiff’s notice of intent
was defective because it did not indicate whether plaintiff was planning on suing
HVR on the basis of direct or vicarious liability is “troubling” because HVR
“openly admits knowing and understanding that it is vicariously liable for the
actions of its employee, Dr. Murry.” Ante at 24. What I find to be “troubling”
14
The majority misunderstands the issue. Contrary to its contention, ante at
26, the issue is not whether HVR “could reasonably be held to comprehend the
nature of the claims being asserted against it.” Instead, as Justice Young explains,
ante at 19, the issue is whether the notice of intent “provide[s] details that are
responsive to the information sought by the statute . . . .” Roberts II, 470 Mich at
701 (emphasis in the original). More specifically, the issue here is whether the
notice of intent contains a statement of “[t]he applicable standard of practice or
care alleged by the claimant,” as is required by § 2912b(4)(b). Boodt v Borgess
Med Ctr, 481 Mich 558, 560-561; 751 NW2d 44 (2008) (“Although the instant
notice of intent may conceivably have apprised [defendant] of the nature and
gravamen of plaintiff’s allegations, this is not the statutory standard; § 2912b(4)[b]
requires something more.”). Because the notice of intent at issue here did not
contain a statement of the “applicable standard of practice or care” with regard to
HVR, the notice of intent did not comply with § 2912b(4)(b).9
instead is that the majority ignores the significant distinction between (a) knowing
and understanding that a professional corporation may be held vicariously liable
for the actions of its employees; and (b) knowing and understanding that someone
is planning on bringing a cause of action against the professional corporation to
hold that corporation vicariously liable for the actions of its employees. The
majority erroneously equates knowledge of potential liability with knowledge of
an imminent lawsuit.
9
Although neither the parties nor the lower courts addressed this issue, the
majority concludes that § 2912b does not “require[] a claimant to set forth the
nature of the relationship between the parties to be sued.” Ante at 22. While I
agree with the majority, ante at 22 n 28, that the notice need not allege the “precise
nature of the relationship,” i.e., whether there is an “actual employment
15
C. Tolling
The period of limitations in medical malpractice cases is two years. MCL
600.5805(6). At the time the complaint was filed in this case, MCL 600.5856, in
pertinent part, provided:
The statutes of limitations or repose are tolled:
***
(d) If, during the applicable notice period under section
2912b, a claim would be barred by the statute of limitations or
repose, for not longer than a number of days equal to the number of
days in the applicable notice period after the date notice is given in
compliance with section 2912b. [Emphasis added.][10]
relationship with the PC or . . . a complex independent contractor arrangement,”
the majority fails to recognize that § 2912b(4)(a) does require the notice of intent
to contain a statement of the “factual basis for the claim.” In this case, plaintiff
sued multiple physicians, multiple professional corporations, and a hospital. Yet,
plaintiff’s notice of intent nowhere includes a “factual basis for the claim” against
HVR. That is, the notice of intent does not even indicate that the reason that HVR
is being sued is because HVR is where Murry was working at during the time of
the alleged malpractice. Because § 2912b(4)(a) requires the notice of intent to
include the “factual basis for the claim,” and the notice of intent at issue here did
not include the fact that Murry was working at HVR at the time of the alleged
malpractice, which, indeed, is one of the most important facts in a case in which
the claim is based on vicarious liability, I also agree with Justice Young, ante at
20, that plaintiff’s notice of intent fails to satisfy § 2912b(4)(a). Contrary to the
majority, ante at 23 n 29, summarily naming “Huron Valley Radiology PC as well
as the three individual physicians and ‘their employees or agents, actual or
ostensible, thereof’” in the notice of intent does not indicate what the “factual
basis for the claim” is. Because I believe that the notice of intent does not satisfy
the requirements set forth in § 2912b(4)(a) and (b), there is no need to address
whether the notice of intent satisfies the other requirements of § 2912b(4), and the
only reason that I even address § 2912b(4)(a) is to respond to the majority’s
incorrect conclusion that § 2912b(4) does not “require[] a claimant to set forth the
nature of the relationship between the parties to be sued.” Ante at 22.
10
The Legislature has since amended § 5856. However, because plaintiff’s
complaint was filed (on November 4, 2003) before the effective date of this
16
In Roberts I, 466 Mich at 59, this Court held that “the statute of limitations cannot
be tolled under MCL 600.5856(d) unless notice is given in compliance with all the
provisions of MCL 600.2912b.”11 As Roberts I, 466 Mich at 64, explained,
“Section 5856(d) clearly provides that notice must be compliant with §
2912b . . . .” “As a result, the tolling of the statute of limitations is available to a
plaintiff only if all the requirements included in § 2912b are met.” Section
2912b(4) states that the notice of intent “shall contain a statement of at least all of
the following . . . .” (Emphasis added.) The term “shall” “denote[s] a mandatory,
rather than discretionary action.” Roberts I, 466 Mich at 65. The term “all”
exemplifies that each and every one of the statements required by § 2912b(4)(a)
through (f) must be contained in the notice of intent. Therefore, only a notice of
intent that is “in compliance with section 2912b” tolls the statute of limitations and
a notice of intent must contain all of the statements required by § 2912b(a) through
(f) in order to be “in compliance with section 2912b.”
amendment (April 22, 2004), it has no effect on the instant case. See 2004 PA 87,
enacting section 1(1) (“this amendatory act applies to civil actions filed on or after
the effective date of this amendatory act”). For a discussion of the amended
version of § 5856, see Bush v Shabahang, 484 Mich ___; ___ NW2d ___ (2009)
(Markman, J., dissenting), decided July 29, 2009 (Docket Nos. 136617, 136653,
and 136983).
11
This portion of Roberts I was decided unanimously with even the
dissenting justices agreeing that “to begin the tolling of the . . . statute of
limitations, a plaintiff must fully comply with the requirements of MCL
600.2912b. Compliance with the delivery provision of the notice statute alone is
insufficient.” Roberts I, 466 Mich at 72 (Kelly, J., dissenting).
17
Because, as discussed earlier, the notice of intent in this case does not
contain the statements required by § 2912b(4)(a) and (b) with regard to HVR, it is
not “in compliance with section 2912b.” Because the notice of intent is not “in
compliance with section 2912b,” the notice of intent does not toll the statute of
limitations. And because the period of limitations in a medical malpractice action
is two years, MCL 600.5805(6), and the alleged malpractice in this case occurred
on June 7, 2001, and the complaint was not filed until November 4, 2003, the
complaint was untimely filed, and the action against HVR is barred by the statute
of limitations. Therefore, the action against HVR should be dismissed with
prejudice.
The Court of Appeals relied on Kirkaldy v Rim, 478 Mich 581; 734 NW2d
201 (2007), to support its conclusion that a defective notice of intent tolls the
statute of limitations, and thus a dismissal without prejudice is appropriate.
However, this case is significantly distinguishable from Kirkaldy. In Kirkaldy,
478 Mich at 586, this Court held that the filing of a complaint and a defective
affidavit of merit tolls the statute of limitations until the affidavit of merit is
successfully challenged. This is so because nothing in MCL 600.5856(a), which
provides for tolling upon the filing of a complaint,12 or MCL 600.2912d, which
12
The amended version of MCL 600.5856 provides, in pertinent part:
The statutes of limitations or repose are tolled in any of the
following circumstances:
18
requires an affidavit of merit to be filed with a complaint,13 limits tolling to an
affidavit that is in compliance with § 2912d. However, § 5856(d) does limit
tolling to a notice of intent that is “in compliance with section 2912b.” Therefore,
while the filing of a complaint and a defective affidavit of merit may toll the
statute of limitations, the serving of a defective notice of intent does not.
Justice Young contends that the statute of limitations was tolled with regard
to HVR because, although the notice of intent was insufficient as to HVR, it was
sufficient as to defendant Murry. That is, he concludes that as long as a notice of
intent is sufficient as to one of the defendants, the statute of limitations is tolled as
to all of the defendants. I respectfully disagree.
As discussed above, § 5856 provided at the time of the filing of the
complaint, in pertinent part:
The statutes of limitations or repose are tolled:
(a) At the time the complaint is filed, if a copy of the
summons and complaint are served on the defendant within the time
set forth in the supreme court rules.
13
MCL 600.2912d(1) provides, in pertinent part:
[T]he plaintiff in an action alleging medical malpractice or, if
the plaintiff is represented by an attorney, the plaintiff's attorney
shall file with the complaint an affidavit of merit signed by a health
professional who the plaintiff's attorney reasonably believes meets
the requirements for an expert witness under [MCL 600.2169]. The
affidavit of merit shall certify that the health professional has
reviewed the notice and all medical records supplied to him or her
by the plaintiff's attorney concerning the allegations contained in the
notice and shall contain a statement of each of the following . . . .
19
***
(d) If during the applicable notice period under section
2912b, a claim would be barred by the statute of limitations or
repose, for not longer than a number of days equal to the number of
days in the applicable notice period after the date notice is given in
compliance with section 2912b. [Emphasis added.]
Justice Young is correct that § 5856 does indicate that “more than one statute of
limitations can be tolled . . . .” Ante at 14. For example, if multiple defendants
receive a notice of intent that is sufficient as to all of them, all of their statutes of
limitations are tolled. However, this does not mean that “more than one statute of
limitations” is always tolled. Obviously, if there is only one defendant, only one
statute of limitations would be tolled, and such a conclusion is not contrary to the
reference in § 5856 to the “statutes of limitations.” See MCL 8.3b, which
provides that “every word importing the plural number may be applied and limited
to the singular number.” Similarly, concluding that a notice of intent only tolls the
statute of limitations that applies to the defendant who has actually received a
sufficient notice of intent, but not the statute of limitations that applies to the
defendant who has not received such a notice, is also not inconsistent with the
reference in § 5856 to the “statutes of limitations.” Further, such a conclusion is
required by the reference in § 5856(d) to “the applicable notice period under
section 2912b,” and “the applicable notice period after the date notice is given in
compliance with section 2912b,” because there is no “applicable notice period
under section 2912b,” if the notice of intent is not “in compliance with section
2912b.”
20
As discussed earlier, § 2912b states, in pertinent part:
(1) Except as otherwise provided in this section, a person
shall not commence an action alleging medical malpractice against a
health professional or health facility unless the person has given the
health professional or health facility written notice under this section
not less than 182 days before the action is commenced.
***
(4) The notice given to a health professional or health facility
under this section shall contain a statement of at least all of the
following . . . .
Accordingly, as this Court held in Roberts I, 466 Mich at 64, a notice of intent
only tolls the statute of limitations if the notice contains all the statements required
by § 2912b(4). In addition, as this Court held in Roberts II, 470 Mich at 692, the
notice of intent must contain all of the statements required by § 2912b(4) as to
“each particular [defendant] named in the notice.” (Emphasis added.) That is, the
notice of intent only tolls the statute of limitations as to each particular defendant
if the notice contains all the statements required by § 2912b(4) as to each
particular defendant. Thus, if a notice of intent contains all the required
statements as to the defendant physician, but does not contain all the required
statements as to the defendant professional corporation, the statute of limitations
would only be tolled as to the defendant physician because a notice “in
compliance with section 2912b” has not been served on the defendant professional
corporation and thus there is no “applicable notice period” as to the defendant
professional corporation.
21
Contrary to Justice Young’s contention, § 5856(d)’s reference to “a claim”
does not alter the outcome.14 The language “a claim” must be read in context. To
which “claim” is § 5856(d) referring? When § 5856(d) is read in its entirety, it is
clear that the “claim” to which it is referring is the “claim” that “would be barred
by the statute of limitations” “during the applicable notice period under section
2912b.” However, “a claim” would not be “barred by the statute of limitations”
“during the applicable notice period under section 2912b” where a sufficient
notice of intent had not yet been served upon the defendant. Where a sufficient
notice of intent had not yet been served upon the defendant, there would be no
“applicable notice period under section 2912b” and, thus, there would be no claim
14
Although Justice Young relies on the language “a claim,” this same
language is found in the amended version of § 5856, and yet he recognizes that,
under the amended version, the notice of intent has to be sufficient as to all the
defendants in order to toll all their statutes of limitations. See ante at 15-17. In
light of his view that a professional corporation that is not a “health facility” is not
entitled to a notice of intent, combined with his view that the amended version of
§ 5856 only tolls the statute of limitations if the defendant has received a sufficient
notice of intent, Justice Young apparently would conclude that a notice of intent
that is sufficient as to the defendant physician would toll the statute of limitations
as to the defendant physician, but would not toll the statute of limitations as to the
defendant professional corporation. Under this view, a plaintiff would have to
serve the defendant physician with a notice of intent and wait 182 days to file suit
against the defendant physician, but the plaintiff would have to go ahead and file
suit against the defendant professional corporation before the period of limitations
expired as to that corporation since the corporation would not be entitled to notice
of intent tolling. Therefore, the plaintiff would have to file his medical
malpractice action against the professional corporation before he filed a medical
malpractice action against the physician, if the period of limitations would have
expired within 182 days after the plaintiff served his notice of intent on the
physician.
22
that would be “barred by the statute of limitations” “during the applicable notice
period.”15 Because I believe that “a claim” in § 5856(d) is referring to “a claim”
that would be “barred by the statute of limitations” “during the applicable notice
period,” and the claim against HVR would not have been “barred by the statute of
limitations” “during the applicable notice period” (because there was no
“applicable notice period”), I conclude that the statute of limitations was not tolled
as to plaintiff’s claim against HVR.16
Moreover, under Justice Young’s analysis, although HVR is not even
entitled to a notice of intent because it is a professional corporation, he would hold
that under § 5856(d) a notice of intent that does not comply with § 2912b tolls the
statute of limitations applicable to HVR. That is, he concludes that, although
HVR is not entitled to a notice of intent, plaintiff still gets the benefit of notice of
15
For further discussion of this point, see my dissenting opinion in Bush,
supra at 10.
16
Justice Young concludes that “there is no textual basis for restricting
tolling to a single claim.” Ante at 15. However, under his interpretation, there
would also seem to be no basis to limit tolling to only those claims relating to the
plaintiff’s medical malpractice action. In other words, the statutes of limitations
for all claims against all defendants in Michigan would seem to be tolled as long
as one plaintiff files a proper notice of intent with one defendant. This could
hardly have been the intent of the Legislature. Contrary to Justice Young’s
contention, ante at 15 n 24, there is a “textual basis for treating subsection (d) of
the tolling statute different than subsection (a) through (c) of the tolling statute.”
That is, as discussed above, subsection (d), unlike subsections (a) through (c),
limits tolling to “a claim [that] would be barred by the statute of limitations”
“during the applicable notice period” if it were not for the “notice [that] is given in
compliance with section 2912b.”
23
intent tolling. This conclusion, in which the defendant is denied the benefit of a
notice of intent, and yet the plaintiff is afforded the benefit of an extended period
of limitations, is illogical and inconsistent with the statute.17 The whole reason for
providing a plaintiff with notice of intent tolling is to compensate for the fact that
he or she must file a notice of intent 182 days before filing a complaint. If,
however, a plaintiff does not have to file a notice of intent and then wait 182 days
before filing a complaint, why should the plaintiff be afforded 182 more days in
which to file the complaint?
Justice Young observes that the “majority’s analysis threatens to render the
statutory notice procedure nugatory and undermines, if not overrules, this Court’s
precedent,” ante at 2-3, and that it “threatens to deprive a named defendant of the
notice that the statutory procedure is designed to provide,” ante at 23. Although I
agree with these observations, I believe that the same possibly can be said of
Justice Young’s own analysis.18 He concludes that a notice of intent that is
17
For the same reason that a notice of intent that does not comply with §
2912b does not toll the statute of limitations, a notice of intent that is not required
by § 2912b does not toll the statute of limitations. That is, if a plaintiff serves a
defendant with a notice of intent that is not required by § 2912b, notice is not
“given in compliance with section 2912b,” the plaintiff does not have to wait 182
days to file his or her complaint, i.e., there is no “applicable notice period under
section 2912b,” and thus notice of intent tolling under § 5856(d) is not applicable.
18
The saving grace of Justice Young’s analysis with regard to tolling is that
it apparently would only apply to the former version of § 5856 that is at issue, not
to the amended version that is applicable to all actions filed after April 22, 2004.
See ante at 16-17.
24
sufficient as to one defendant tolls the statute of limitations for all the defendants,
regardless of how defective the notice of intent is as to these other defendants or
whether these other defendants were even entitled to a notice of intent in the first
place. That is, although § 2912b(4) and Roberts II clearly require the plaintiff to
provide all defendants with a notice of intent that is sufficient as to each, and
although § 5856(d) and Roberts I clearly limit tolling to notices that are “given in
compliance with section 2912b,” Justice Young concludes that a notice of intent
that is clearly not “in compliance with section 2912b” as to multiple defendants
nevertheless tolls the statute of limitations as to these defendants as long as at least
one defendant is given a notice of intent that is “in compliance with section
2912b.” How are other defendants to receive the “notice that the statutory
procedure is designed to provide”?19
19
Justice Young contends that “a plaintiff’s failure to provide a defendant
with a sufficient NOI still entitles that defendant to dismissal, tolling
notwithstanding.” Ante at 16 n 25. However, this interpretation would seem to
create a trap for unwary plaintiffs because MCL 600.2912b(6) prohibits the
“tacking or addition of successive 182-day periods . . . .” As this Court explained
in Mayberry v Gen Orthopedics, PC, 474 Mich 1, 3; 704 NW2d 69 (2005),
“Section 2912b(6) prohibits a plaintiff from giving presuit notice to a defendant
multiple times in order to initiate multiple tolling periods that repeatedly extend
the period of limitations.” Accordingly, if a notice that was filed within 182 days
before the period of limitations would have expired and that is sufficient as to the
defendant physician but defective as to the defendant hospital tolls the statute of
limitations as to both, and § 2912b requires dismissal as to the hospital (as a result
of the defective notice), the plaintiff’s next notice sent to the hospital would not
toll the statute of limitations (as a result of § 2912b(6)), and thus the plaintiff’s
action against the hospital would then be barred by the statute of limitations (since
there would be no way for the plaintiff to file a sufficient notice and then wait 182
days to file suit against the hospital without the benefit of another 182-day tolling
25
D. Retroactive Amendments
Although the majority does not address this issue because it concludes that
the notice of intent is sufficient, in Bush v Shabahang, 484 Mich ___ n 45; ___
NW2d ___ (2009), decided July 29, 2009 (Docket Nos. 136617, 136653, and
136983), the majority concludes that, pursuant to MCL 600.2301, a plaintiff can
simply amend a defective notice of intent and such amendment will “relate back to
the time that the original NOI was mailed” or the courts alternatively can simply
“disregard any error or defect” in the notice of intent. I respectfully disagree. See
Bush, 484 Mich at ___, slip op at 12-13. MCL 600.2301 provides:
The court in which any action or proceeding is pending, has
power to amend any process, pleading or proceeding in such action
or proceeding, either in form or substance, for the furtherance of
justice, on such terms as are just, at any time before judgment
rendered therein. The court at every stage of the action or
proceeding shall disregard any error or defect in the proceedings
which do not affect the substantial rights of the parties. [Emphasis
added.]
period). That is, what Justice Young gives with one hand (defective notice tolls),
he takes away with the other hand (defective notice requires dismissal and plaintiff
cannot refile). Assuming that Justice Young’s response to this conundrum is that
the original complaint tolls the statute of limitations applicable to the hospital,
under § 5856(a) (although the complaint has been dismissed against the hospital),
he would then create a situation in which a plaintiff would have absolutely no
incentive to file a notice that complies with § 2912b as to the hospital or any other
defendant as long as he files a notice that complies with § 2912b as to one
defendant, because the statute of limitations would presumably be tolled
indefinitely by the complaint that has not been dismissed. The plaintiff would
then apparently have an unlimited period of time in which to file a sufficient
notice and to refile the complaint against the remaining defendants (or at least
until all the claims were dismissed or otherwise adjudicated).
26
As this Court explained in Boodt, 481 Mich at 563 n 4, Ҥ 2301 only applies to
pending actions.” As discussed above, § 2912b(1) provides, “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.” (Emphasis added.) Section 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 . . . .” (Emphasis added.) Therefore, as we
explained in Boodt, 481 Mich at 562-563, “a plaintiff cannot commence an action
before he or she files a notice of intent that contains all the information required
under § 2912b(4).”20 Because plaintiff’s notice of intent here did not contain all
the information required under § 2912b(4) as to HVR, plaintiff could not have
commenced a medical malpractice action against HVR.21 Therefore, § 2301 is
inapplicable, and plaintiff cannot retroactively amend the notice of intent and the
courts cannot “disregard any error or defect” in the notice of intent.
20
For further discussion of Boodt, see my dissenting opinion in Bush, supra
at 13, 17-18.
21
In Bush, supra at 14 n 26, the majority mischaracterizes Boodt as holding
that “because no tolling was afforded in the presence of a defect pursuant to §
5856(d), the plaintiff’s action was not commenced under § 2912b(1).” However,
it was not the lack of tolling that prevented the plaintiff’s action from
commencing, it was the lack of a notice of intent in compliance with § 2912b. See
§ 2912b(1) and (4) (“a person shall not commence an action alleging medical
malpractice . . . unless the person has given . . . written notice . . . [that] contain[s]
a statement of at least all of the following . . . .”).
27
E. Majority Procedures
As noted in n 1 of this opinion, the majority addresses issues that are not
even properly before it. In Docket No. 136336, plaintiff appealed the portion of
the Court of Appeals decision that held that the notice of intent was defective as to
HVR, and in Docket Nos. 136338 and 136339, defendants appealed the portion of
the decision that held that the defective notice of intent tolled the statute of
limitations, and thus that a dismissal without prejudice was appropriate, and the
portion that held that the notice of intent was sufficient as to defendant Murry. In
Docket No. 136336, we granted plaintiff’s application “limited to the issue
whether defendant Huron Valley Radiology, P.C., is a ‘health facility or agency’
to which a plaintiff is required to provide notice under MCL 600.2912b(1).” 482
Mich 1004 (2008) (emphasis added). In Docket Nos. 136338 and 136339, we held
defendants’ application in abeyance for plaintiff’s application. 756 NW2d 85
(2008). Subsequently, in Docket No. 136336, we directed the parties to file briefs
addressing “whether, if a defendant professional corporation is not an entity to
whom notice is required to be provided under MCL 600.2912b, the applicable
statute of limitations, MCL 600.5805(6), was nonetheless subject to statutory
tolling provided in former MCL 600.5856(d).” 483 Mich 922 (2009). However,
we never asked the parties to address the sufficiency of the notice of intent as to
either HVR or Murry. As a result, the parties did not, in fact, brief or argue these
issues. See n 1 of this opinion.
28
Thus, despite the fact that the parties have not had an opportunity to brief or
argue these issues, and, indeed, despite the fact that the issue regarding the
sufficiency of the notice of intent as to defendant Murry has been formally abeyed,
the majority nonetheless addresses these issues and implicitly overrules Roberts II
in the process.22 The majority implicitly overrules Roberts II by refusing to follow
its holdings: (a) that a notice of intent must indicate whether the plaintiff is
seeking to hold the defendant professional corporation vicariously or directly
liable, and instead holding that as long as the plaintiff is only going to sue the
defendant on the basis of vicarious liability it does not have to indicate this in the
notice of intent; and (b) that a notice of intent must contain all the statements
required by § 2912b(4), and instead holding that a notice of intent is sufficient as
long as the defendant “could reasonably be held to comprehend the nature of the
claims being asserted against it.” Ante at 26. The majority does this without so
much as a mention of stare decisis. What happened to the view that “[t]he
Michigan Supreme Court should not alter the precedent . . . without first hearing
oral argument and inviting briefing on it”? Scott v State Farm Mut Auto Ins Co,
22
“The Court shall not issue any peremptory order unless it is signed by
five Justices, except where a majority of Justices conclude that emergency
circumstances warrant the issuance of such an order.” Minutes of the Conference
on Administrative Matters, Item 2, 2003-31, Internal Rules, July 24, 2003. The
majority violates this rule by reversing the Court of Appeals on the issue of the
sufficiency of the notice of intent as to defendant HVR without briefing or oral
argument, and without the requisite five votes, because, although this issue was
raised in plaintiff’s application for leave to appeal, we granted leave to appeal only
as to a different issue.
29
482 Mich 1074, 1076-1077 (2008) (Kelly, J., dissenting). What happened to the
view that by “fail[ing] to comprehend how the skilled advocates in this case could
have added anything insightful in the debate over the proper interpretation of . . .
precedent . . . the majority undermines the foundations of our adversarial system”?
Mack v Detroit, 467 Mich 186, 223; 649 NW2d 47 (2002) (Cavanagh, J.,
dissenting). Apparently, these views are only pertinent where precedents with
which the majority agrees are at stake. 23
23
For further discussion on the subject of the majority and stare decisis see
Petersen v Magna Corp, 484 Mich ___; ___ NW2d ___ (2009) (Markman, J.,
dissenting), decided July 31, 2009 (Docket Nos. 136542 and 136543), slip op at
43-51, and Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 223-247; 731
NW2d 41 (2007) (Markman, J., concurring). Increasingly, the same regard for
precedent evidenced in this case towards Roberts II by the majority, see supra at
12-13, has been reflected toward other disfavored and inconvenient precedents:
they are simply ignored. For illustrations of this phenomenon, see e.g.,
Vanslembrouck v Halperin, 483 Mich 965 (2009), in which the new majority
ignored Vega v Lakeland Hosps, 479 Mich 243, 244; 736 NW2d 561 (2007);
Hardacre v Saginaw Vascular Services, PC, 483 Mich 918 (2009), in which it
failed to follow Boodt, 481 Mich 558; Sazima v Shepherd Bar & Restaurant, 483
Mich 924 (2009), in which it failed to follow Chrysler v Blue Arrow Transport
Lines, 295 Mich 606; 295 NW 331 (1940), and Camburn v Northwest School Dist
(After Remand), 459 Mich 471; 592 NW2d 46 (1999); Juarez v Holbrook, 483
Mich 970 (2009), in which it failed to follow Smith v Khouri, 481 Mich 519; 751
NW2d 472 (2008); Beasley v Michigan, 483 Mich 1025 (2009), in which the
majority failed to follow Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731
NW2d 41 (2007); Scott v State Farm Mut Auto Ins Co, 483 Mich 1032 (2009), in
which the majority failed to enforce Thornton v Allstate Ins Co, 425 Mich 643;
391 NW2d 320 (1986), and Putkamer v Transamerica Ins Corp of America, 454
Mich 626; 563 NW2d 683 (1997) and Chambers v Wayne Co Airport Auth, 483
Mich 1081 (2009), in which the majority again failed to abide by Rowland.
Chief Justice Kelly contends that “the accusation that the Court has been
ignoring precedent is incorrect.” Ante at 5. As Justice Corrigan explained in
30
Beasley, 483 Mich at 1029-1030 (Corrigan, J., dissenting), in response to this
same contention:
Chief Justice Kelly attempts to explain away the new
majority’s actions by sharing her views regarding the prior caselaw
that the new majority has otherwise chosen to ignore. But Chief
Justice Kelly’s interpretation of a prior case in a concurring
statement is not a decision of the Court. More importantly, her
argument overlooks the fundamental problem: the new majority’s
continuing failure to explain its apparent disregard of this Court’s
precedent undermines the predictability and stability of the rule of
law.
***
[T]he new majority offers no articulable reasons whatsoever
for its apparent detours from stare decisis. Instead, the majority
declines to explain whether—and, if so, why—it is overruling
precedent despite the obvious appearance that it is doing so. If it
intends to alter legal principles embedded in this Court’s decisions,
then the new majority should explain its reasons clearly and
intelligibly. Instead, the new majority overrules by indirection, or at
least leaves the impression that it is doing so, thereby sowing the
seeds of confusion and making it difficult for the citizens of this
state to comprehend precisely what our caselaw requires. This
appears to be an unfortunate return to our predecessors’ past practice
of “frequently pa[ying] little attention to the inconsistencies among
its cases and declin[ing] to reduce confusion in [the Court’s]
jurisprudence by overruling conflicting decisions.” Devillers v Auto
Club Ins Ass’n, 473 Mich 562, 571 n 19 (2005).
See also Rowland, 477 Mich at 226-227 (Markman, J., concurring), for further
discussion of the penchant of some Justices to ignore inconvenient precedents,
thereby “[leaving] intact precedents that were inconsistent with new decisions,
essentially allowing future litigants to choose among inconsistent precedents as in
columns A and B of a Chinese restaurant menu.”
In the end, there is no shortcut to resolving whether the
majority or the dissenting Justices are correct in their
characterizations of what the majority is doing. We can only
identify what we believe to be the questionable decisions of the
majority, identify the relevant precedents, and invite the reader to
31
To summarize my concerns with the majority opinion: (1) it addresses
issues that have neither been brief nor argued; (2) it addresses an issue that was
formally abeyed; (3) it violates one of this Court’s internal rules by reversing the
Court of Appeals on an issue that has neither been briefed nor argued, without the
required five votes and in the absence of any emergency circumstances; (4) it
concludes that HVR was entitled to a notice of intent simply because this is a
medical malpractice action and because the words “professional corporation” can
be found in § 5838a, without any discussion of whether HVR is either a “health
professional or health facility” under § 2912b(1); (5) it concludes that the
requirement of § 2912b(4)(a) that the notice of intent contain a statement of the
“factual basis for the claim” does not require a statement indicating that the reason
that the defendant professional corporation is being sued is because the defendant
physician was working at the corporation at the time of the alleged malpractice;
(6) it concludes that the requirement of § 2912b(4)(b) that the notice of intent
contain a statement of the “applicable standard of practice or care” does not
require a statement indicating whether the plaintiff is seeking to hold the defendant
professional corporation directly or vicariously liable; (7) it relies upon a
distinction without any difference to conclude that Roberts II is not dispositive; (8)
it questions whether Roberts II was correctly decided with regard to whether a
reach his or her own conclusions. [Petersen, supra at 47 n 47
(Markman, J. dissenting).]
32
notice of intent must be particularized, leaving the bench and bar at a loss as to
whether Roberts II remains good law on this issue; and (9) it implicitly overrules
Roberts II’s holding that a notice of intent must indicate whether the plaintiff is
seeking to hold the defendant professional corporation vicariously or directly
liable and its holding that a notice of intent must contain all of the statements
required by § 2912b(4), without any mention whatsoever of stare decisis.
IV. CONCLUSION
Although the notice of intent was sufficient as to defendant Murry, it was
insufficient as to defendant HVR. As this Court held in Roberts I, a defective
notice of intent does not toll the statute of limitations. Because the complaint was
filed more than two years after the alleged malpractice occurred, the action against
HVR is time-barred. Accordingly, I would affirm the portions of the Court of
Appeals opinion that held that the notice of intent was sufficient as to defendant
Murry and insufficient as to defendant HVR, but reverse the portions that held that
the defective notice of intent tolled the statute of limitations and thus that a
dismissal without prejudice was appropriate. The action against HVR should be
dismissed with prejudice.
Stephen J. Markman
33