Dale Goodfellow v. Geoffrey Tak-Kin Lam ( 2020 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
DALE GOODFELLOW, UNPUBLISHED
June 11, 2020
Plaintiff-Appellant,
v No. 347818
Kent Circuit Court
GEOFFREY TAK-KIN LAM, also known as LC No. 18-007158-NH
GEORFFREY TAK-KIN LAM; SPECTRUM
HEALTH MEDICAL GROUP; and SPECTRUM
HEALTH HOSPITALS,
Defendants-Appellees.
Before: K. F. KELLY, P.J., and FORT HOOD and SWARTZLE, JJ.
PER CURIAM.
In this medical malpractice action, plaintiff appeals as of right the trial court’s order
granting defendants’ motion for summary disposition pursuant to MCR 2.116(C)(7) (claim barred
by statute of limitations). We affirm.
The operative facts in this case are undisputed. On February 12, 2018, plaintiff served
defendants with a notice of intent (NOI) to file a medical malpractice claim pursuant to MCL
600.2912b. On August 13, 2018, 182 days later, plaintiff filed a complaint alleging that plaintiff
was injured as a result of negligent care provided by defendants. On November 5, 2018,
defendants filed a motion for summary disposition in lieu of an answer to plaintiff’s complaint,
claiming that plaintiff’s claim was barred because he had failed to comply with the notice
provisions of MCL 600.2912b, specifically, that plaintiff had filed his complaint one day before
the expiration of the 182-day waiting period required by the statute. As previously noted, the trial
court agreed and granted defendants’ motion for summary disposition because the complaint was
not timely filed according to recent Michigan Supreme Court caselaw. On appeal, plaintiff argues
that his complaint was timely filed and, even if it was not, the trial court should have applied
equitable tolling to save his claim.
Plaintiff first argues that his complaint was timely filed because the exception listed under
MCL 600.2912b(9) applied. We disagree.
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Pursuant to MCL 600.2912b(9):
If at any time during the applicable notice period under [MCL 600.2912b]
a health professional or health facility receiving notice under this section informs
the claimant in writing that the health professional or health facility does not intend
to settle the claim within the applicable notice period, the claimant may commence
an action alleging medical malpractice against the health professional or health
facility, so long as the claim is not barred by the statute of limitations.
In this case, plaintiff relies on a conditional statement in defendants’ response to allege that
defendants represented they did not intend to settle the claim within the 182-day notice period of
MCL 600.2912b. Specifically, defendants reserved “the right to modify or assert additional
defenses after discovery has been initiated and further analysis is conducted by expert witnesses.”
This reservation, plaintiff contends, demonstrated that defendants were essentially inviting
plaintiff’s lawsuit before the expiration of the 182-day notice period because of the use of the word
“discovery,” and plaintiff reasonably relied on this reservation as showing defendants’ intent not
to settle the claim during the 182-day notice period.
Our Supreme Court has held that “[a] defendant can either advise the plaintiff of the
decision to waive or the defendant may do nothing at all, either of which triggers the shortened
waiting period” contained in MCL 600.2912b(9). Bush v Shabahang, 484 Mich. 156, 184; 772
NW2d 272 (2009). Unfortunately for plaintiff, neither of these happened here. Defendants never
directly—or impliedly—advised plaintiff that they wanted to waive the 182-day notice period.
Furthermore, defendants did not “do nothing at all” because they responded to plaintiff’s NOI in
compliance with MCL 600.2912b(7). Plaintiff fails to provide any support for his argument that
reasonable reliance on his part should accelerate the 182-day notice period absent a writing
demonstrating defendants’ intent not to settle. See MCL 600.2912b(9).1
Alternatively, plaintiff contends that, irrespective of MCL 600.2912b(9), the
commencement of his action—filing the complaint on day 182—was appropriate because our
Supreme Court incorrectly interpreted MCL 600.2912b(1). Our Supreme Court recognized that
the NOI is a “prerequisite condition to the commencement of a medical malpractice lawsuit.”
Burton v Reed City Hosp Corp, 471 Mich. 745, 754; 691 NW2d 424 (2005). Our Supreme Court
also iterated that “[t]he filing of a complaint before the expiration of the statutorily mandated notice
period . . . renders the complaint insufficient to commence the action.” Id. With regard to the 182-
day notice period, our Supreme Court interpreted the period to mean that “a plaintiff must wait the
entire 182 days before filing a complaint,” and a complaint filed on day 182 is considered untimely.
Haksluoto v Mt Clemens Regional Med Ctr, 500 Mich. 304, 325-326; 901 NW2d 577 (2017). In
so holding, our Supreme Court concluded that a plaintiff must wait until day 183 to file a
1
“An appellant may not merely announce his position and leave it to this Court to discover and
rationalize the basis for his claims, nor may he give issues cursory treatment with little or no
citation of supporting authority.” Houghton ex rel Johnson v Keller, 256 Mich. App. 336, 339; 662
NW2d 854 (2003) (citation omitted). “[W]here a party fails to cite any supporting legal authority
for its position, the issue is deemed abandoned.” Prince v MacDonald, 237 Mich. App. 186, 197;
602 NW2d 834 (1999).
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complaint. See id. Importantly, even a plaintiff that sends an NOI on the last day of the statute of
limitations period is given that one hundred eighty-third day to file a complaint. See id. at 323.
In this case, plaintiff filed his cause of action on day 182, which means that his complaint
was untimely. See, e.g., Tyra v Organ Procurement Agency of Mich, 498 Mich. 68, 68; 869 NW2d
213 (2015). Although plaintiff believes that the Michigan Supreme Court interpreted the 182-day
notice provision of MCL 600.2912b(1) incorrectly, this Court is bound by our Supreme Court’s
precedent. See Duncan v Michigan, 300 Mich. App. 176, 193; 832 NW2d 761 (2013). Only the
Supreme Court may overrule its decisions. See Paige v Sterling Hts, 476 Mich. 495, 524; 720
NW2d 219 (2006). Accordingly, plaintiff’s complaint was untimely.
Next, plaintiff argues that the trial court should have applied equitable tolling to save his
claim. We disagree. Without any citation to supporting caselaw, plaintiff merely states that he
reasonably believed that defendants rejected their opportunity to settle the case during the 182-day
notice period and that it would be unjust to dismiss a meritorious claim. We find this reasoning
unpersuasive and, absent citation to authority, deem the issue abandoned on appeal. See Houghton
ex rel Johnson v Keller, 256 Mich. App. 336, 339; 662 NW2d 854 (2003); Prince v MacDonald,
237 Mich. App. 186, 197; 602 NW2d 834 (1999).
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood
/s/ Brock A. Swartzle
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