Roberts v. Mecosta County General Hospital

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Maura D. Corrigan Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

FILED JULY 21, 2004

LISA ROBERTS,

Plaintiff-Appellee,

v o. 122312
N

MICHAEL ATKINS, M.D.,

Defendant-Appellant,

and

MECOSTA COUNTY GENERAL HOSPITAL,

GAIL A. DESNOYERS, M.D., BARB

DAVIS, and OBSTETRICS AND

GYNECOLOGY OF BIG RAPIDS, P.C.,

formerly known as GUNTHER, DESNYOYERS

& MEKARU,

Defendants.
_______________________________

LISA ROBERTS,

Plaintiff-Appellee,

v No. 122335

GAIL A. DESNOYERS, M.D., BARB
DAVIS, OBSTETRICS AND GYNECOLOGY
OF BIG RAPIDS, P.C., formerly
known as GUNTHER, DESNOYERS &
MEKARU,

Defendants-Appellants,
and

MICHAEL ATKINS, M.D., and
MECOSTA COUNTY HOSPITAL,

Defendants.
_______________________________

LISA ROBERTS,

Plaintiff-Appellee,

v No. 122338

MECOSTA COUNTY GENERAL HOSPITAL,

Defendant-Appellant,

and

GAIL A. DESNOYERS, M.D., MICHAEL
ATKINS, M.D., BARB DAVIS, and
OBSTETRICS AND GYNECLOGOY OF
BIG RAPIDS, P.C., formerly known
as GUNTHER, DESNOYERS & MEKARU,

Defendants.
_______________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.
INTRODUCTION

This medical malpractice case is before us for the

second time. In Roberts v Mecosta, 466 Mich 57; 642 NW2d

663 (2002) (Roberts I), we held that the statute of

limitations could not be tolled under MCL 600.5856(d)

unless notice was given in compliance with all the

provisions of MCL 600.2912b, and that § 2912b imposed no

2

requirement on defendants to object to the sufficiency of

plaintiff’s notices of intent before the filing of the

complaint. Because the Court of Appeals had not addressed

the trial court’s conclusion that plaintiff’s notices of

intent did not comply with § 2912b, we remanded the matter

to that Court for further proceedings. On remand, the

Court of Appeals held that plaintiff’s notices of intent

strictly complied with the provisions of § 2912b.

We conclude that plaintiff’s notices of intent are

deficient in several respects and that, therefore, the

statute of limitations was not tolled under § 5856(d). The

unambiguous language of MCL 600.2912b(4) requires a medical

malpractice plaintiff to include in her notice of intent a

statement of (1) the factual basis for the claim, (2) the

applicable standard of practice or care alleged by the

claimant, (3) the manner in which it is claimed that the

applicable standard of practice or care was breached, (4)

the alleged action that should have been taken to comply

with the alleged standard, (5) the manner in which it is

claimed that the breach was the proximate cause of the

injury claimed in the notice, and (6) the names of all

professionals and facilities the claimant is notifying.

Although the notices of intent in this case are not wholly

deficient with regard to the above requirements, they are

3

nonetheless not in full compliance with § 2912b because

they fail to properly set forth allegations regarding the

standard of practice or care applicable to each named

defendant, allegations regarding the manner in which it was

claimed that defendants breached the applicable standards

of practice or care, the alleged actions that defendants

should have taken in order to satisfy the alleged

standards, or allegations of the manner in which

defendants’ breaches of the standards constituted the

proximate cause of plaintiff’s injury.

Because plaintiff did not fully comply with the

unambiguous requirements of § 2912b(4), we reverse the

decision of the Court of Appeals and we reinstate the

judgments of the trial court granting defendants’ motions

for summary disposition.

I. FACTS AND PROCEDURAL HISTORY

We set forth the following recitation of facts in our

prior opinion:

Plaintiff was pregnant and sought treatment
because she was experiencing severe pain in her
abdomen. She was diagnosed as having suffered a
spontaneous abortion and a D & C [dilation and
curettage] was performed. Plaintiff alleges that
it was later discovered that she had actually
been suffering from an ectopic pregnancy, not a
spontaneous abortion, and that her left fallopian
tube had burst. Emergency surgery was performed
to remove plaintiff's left fallopian tube.

4

Plaintiff claims that as a result of the second
operation, she can no longer bear children
because her right fallopian tube had previously
been removed.

Plaintiff decided to pursue a medical
malpractice claim, alleging that defendants
misdiagnosed her condition and subsequently
performed an unnecessary operation.

Plaintiff served a notice of intent on
defendant Mecosta County General Hospital on
September 19, 1996, and on the remaining
defendants on September 23, 1996. Serving these
notices constituted plaintiff's attempt to (1)
meet the notice requirements for medical
malpractice actions prescribed by MCL 600.2912b
and (2) toll the statute of limitations pursuant
to MCL 600.5856(d).

After the waiting period required under MCL
600.2912b had passed, plaintiff filed her
complaint. Thereafter, defendants filed motions
for summary disposition. Defendants argued,
inter alia, that plaintiff's claims were barred
by the statute of limitations because the notices
of intent failed to comply with the requirements
outlined in MCL 600.2912b(4). Specifically,
defendants asserted that plaintiff's notices
failed to sufficiently state the standard of
care, the manner in which the standard was
breached, the action the defendants should have
taken, and the proximate cause of the injury.
Defendants advanced the position that, since the
notices were insufficient, the period of
limitation was not tolled under MCL 600.5856(d)
and had therefore expired. The trial court
granted the motions for summary disposition.

The Court of Appeals reversed and remanded,
holding that defendants had waived their ability
to challenge plaintiff's failure to comply with
the notice requirements because they did not
raise their objections before the time the
complaint was filed . . . . [Roberts I, supra at
59-61.]

5

 This Court reversed the decision of the Court of

Appeals, holding that (1) the statute of limitations was

not tolled unless notice was given in compliance with all

the provisions of § 2912b, (2) that § 2912b imposed no duty

on defendants to challenge any deficiencies in the notices

of intent before the complaint was filed, and (3) that

defendants were not required to assert the statute of

limitations defense or to challenge the sufficiency of the

notices of intent until after plaintiff filed suit.

Roberts I, supra. We “express[ed] no opinion concerning

plaintiff’s compliance or noncompliance with MCL 600.2912b,

an issue that the Court of Appeals declined to answer.”

Id. at 71 n 8. We remanded the matter to the Court of

Appeals to address this issue. Id. at 71.

On remand, the Court of Appeals held that plaintiff’s

notices of intent strictly complied with the requirements

of § 2912b.1 252 Mich App 664, 666; 653 NW2d 441 (2002).

The panel opined that plaintiff’s notices of intent set

forth a proper factual basis for her claim and a

sufficient, even if not accurate, allegation as to the

applicable standard of practice or care. Id. at 667-670.

1
The panel declined to address plaintiff’s alternative
argument that her notices substantially complied with §
2912b(4) and that substantial compliance was sufficient.

6

The panel further concluded that, by reference to the

recitations of the factual basis for the claim, the notices

of intent set forth the manner in which it was claimed that

the applicable standards of care were breached, the alleged

actions that should have been taken, and the manner in

which it was alleged that the breaches of the standards of

care were the proximate cause of plaintiff’s injury. The

panel likewise concluded that the notices properly set

forth the names of all health professionals and facilities

that plaintiff notified in relation to the claim.

II. STANDARD OF REVIEW

This case involves questions of statutory

interpretation, which are reviewed de novo. Roberts I,

supra at 62. We review the trial court’s grant of summary

disposition de novo. Id.

III. ANALYSIS

A. RELEVANT STATUTES

MCL 600.2912b(1)2 precludes a medical malpractice

claimant from commencing suit against a health professional

2
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
(continued…)

7

or health facility unless written notice is provided to

that professional or facility before the action is

commenced. After providing the written notice, the

claimant is required to wait for the applicable notice

period to pass before filing suit.3

The two-year period of limitation for medical

malpractice actions is tolled during the notice period

“after the date notice is given in compliance with section

2912b.” MCL 600.5856(d) (emphasis supplied). Thus, in

order to toll the limitation period under § 5856(d), the

claimant is required to comply with all the requirements of

§ 2912b. Roberts I, supra at 64.

(continued…)
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 supplied.]
3
The claimant generally may not commence an action for
182 days after providing the notice of intent. Exceptions
to this general rule are set forth in MCL 600.2912b(3)
(providing that under certain circumstances the 182-day
notice period is shortened to 91 days), MCL 600.2912b(8)
(providing that the claimant may file an action after 154
days if no response to the notice is received as
contemplated by MCL 600.2912b[7]), and MCL 600.2912b(9)
(permitting the claimant to file the action immediately if,
at any time during the applicable notice period, the
professional or facility named in the notice informs the
claimant in writing that the professional or facility does
not intend to settle the claim within the applicable notice
period).

8

 MCL 600.2912b(4) enumerates the specific topics that

the claimant is required to address in the written notice

of intent:

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.
[Emphasis supplied.]

It is against this unambiguous statutory backdrop that we

must determine the adequacy of plaintiff’s notices of

intent.

B. PLAINTIFF’S NOTICES OF INTENT DO NOT COMPLY WITH § 2912b(4)

Plaintiff provided the following notice of intent to

defendant Mecosta County General Hospital:

9

1. FACTUAL BASIS FOR CLAIM

This is a claim for negligence which
occurred on October 4, 1994, at Mecosta County
General Hospital. It is claimed that on said
date while pregnant with her first child,
Claimant presented herself to Mecosta County
General Hospital complaining of severe pain. At
that time a diagnosis of a spontaneous abortion
was made and a D and C was performed. Claimant
was sent home at that time.

Over the course of the next few days
Claimant continued to experience pain and
cramping and, on October 7, 1994, was again seen
at Mecosta County General Hospital. Claimant was
told that the pain she was experiencing was
cramps from the D and C she had done and was sent
home.

Claimant returned to the hospital on October
8, 1994, wherein it was discovered that Claimant
had not had a spontaneous abortion but had an
ectopic pregnancy in her left tube which had
burst. Emergency surgery was performed at that
time and her left tube was removed.

Claimant had her right tube removed
approximately ten years ago and, as a result of
the negligence set forth above, she is now unable
to have children.

2. THE APPLICABLE STANDARD OF PRACTICE OR CARE
ALLEGED

Claimant contends that the applicable
standard of care required that Mecosta County
General Hospital provide the claimant with the
services of competent, qualified and licensed
staff of physicians, residents, interns, nurses
and other employees to properly care for her,
render competent advice and assistance in the
care and treatment of her case and to render same
in accordance with the applicable standard of
care.

10

 3. THE MANNER IN WHICH IT IS CONTENDED THAT THE
APPLICABLE STANDARD OF CARE WAS BREACHED

See paragraph 2 above.[4]

4. THE ACTION THAT SHOULD HAVE BEEN TAKEN TO
ACHIEVE COMPLIANCE WITH THE STANDARD OF PRACTICE
OR CARE

See paragraph 2 above.

5. THE MANNER IN WHICH THE BREACH WAS THE
PROXIMATE CAUSE OF CLAIMED INJURY

See paragraph 2 above.

6. NAMES OF HEALTH PROFESSIONALS, ENTITIES, AND
FACILITIES NOTIFIED

Mecosta County General Hospital and all
agents and employees, actual or ostensible,
thereof.

Plaintiff subsequently provided the following notice

of intent to the remaining defendants (Obstetrics &

Gynecology of Big Rapids, P.C.; Gail DesNoyers, an

obstetrician, and Barb Davis, P.A.C., a physician’s

assistant, both of whom were affiliated with the

professional corporation; and Michael Atkins, M.D., a

physician who treated plaintiff at the hospital’s emergency

room):

4
Plaintiff contends that the references to “paragraph
2” in the notice are typographical errors, and that they
should be viewed as referring to paragraph 1.

11

1. FACTUAL BASIS FOR CLAIM

This is a claim for negligence which
occurred on October 4, 1994, at Obstetrics &
Gynecology of Big Rapids. It is claimed that on
said date, while pregnant with her first child,
Claimant presented herself to Barb Davis, PAC,
Dr. Michael Atkins, and Dr. Gail DesNoyers
complaining of severe abdominal pain and
bleeding. At that time a diagnosis of a
spontaneous abortion was made and a D & C was
performed at Mecosta County General Hospital.
Claimant was sent home at that time, despite Dr.
DesNoyer’s [sic] knowledge of Claimant’s history
of a prior ectopic pregnancy.

Over the course of the next few days,
Claimant continued to experience pain and
cramping and, on October 7, 1994, was seen at
Mecosta County General Hospital by Dr. Michael
Atkins. Claimant was told that the pain she was
experiencing was cramps from the D & C she had
done and was sent home.

Claimant returned to the hospital on October
8, 1994, wherein it was discovered that Claimant
had not had a spontaneous abortion but had an
ectopic pregnancy in her left tube which had
burst. Emergency surgery was performed at that
time and her left tube was removed.

Claimant had her right tube removed
approximately ten years ago and, as a result of
the negligence set forth above, she is now unable
to have any children.

2. THE APPLICABLE STANDARD OF PRACTICE OR CARE
ALLEGED

Claimant contends that the applicable
standard of care required that Obstetrics &
Gynecology of Big Rapids, Dr. Gail DesNoyers and
Barb Davis, PAC, provide the Claimant with the
services of competent, qualified and licensed
staff of physicians, residents, interns, nurses
and other employees to properly care for her,
render competent advice and assistance in the

12

 care and treatment of her case and to render same
in accordance with the applicable standard of
care.

3. THE MANNER IN WHICH IT IS CONTENDED THAT THE
APPLICABLE STANDARD OF PRACTICE OR CARE WAS
BREACHED

Claimant claims that Obstetrics & Gynecology
of Big Rapids, Dr. Gail DesNoyers and Barb Davis,
PAC, failed to provide her with the applicable
standard of practice and care outlined in
paragraph 2 above.

4. THE ACTION THAT SHOULD HAVE BEEN TAKEN TO
ACHIEVE COMPLIANCE WITH THE STANDARD OF PRACTICE
OR CARE

See paragraph 2 above.

5. THE MANNER IN WHICH THE BREACH WAS THE
PROXIMATE CAUSE OF CLAIMED INJURY

See paragraph 2 above.

6. NAMES OF HEALTH PROFESSIONALS, ENTITIES, AND
FACILITIES NOTIFIED

Obstetrics & Gynecology of Big Rapids, Gail
DesNoyers, M.D., Michael Atkins, M.D., Barb
Davis, PAC, and all agents and employees, actual
or ostensible, thereof.

Plaintiff’s notices of intent primarily set forth

facts demonstrating an unfavorable outcome——the fact that

plaintiff had suffered an ectopic pregnancy and a ruptured

“left tube” that was not diagnosed by defendants. Although

the notices satisfy some of the requirements of § 2912b,

they do not satisfy all of those requirements. Missing

from the notices are (1) a statement of the particular

13

standard of practice or care applicable to each of the

various defendants, (2) statements regarding the manner in

which it was claimed that defendants breached the alleged

standards of practice or care, (3) statements alleging the

actions that should have been taken by defendants, and (4)

statements regarding the manner in which defendants’

breaches of the standards of practice or care were alleged

to have constituted the proximate cause of plaintiff’s

injury.

1. MCL 600.2912b(4)(a): FACTUAL BASIS

We agree with the Court of Appeals that the notices of

intent, which generally describe the events that led to

plaintiff’s alleged injury, properly set out the factual

basis for plaintiff’s claim.

2. MCL 600.2912b(4)(b): STANDARD OF PRACTICE OR CARE

The Court of Appeals panel declined to find fault with

plaintiff’s statements of the standard of care, noting that

(1) “defendants direct us to no authority to establish that

the stated standard of care is incorrect, nor do they

direct us to what they believe is the proper standard of

care,” and (2) “[t]he statute does not require that the

claimant accurately or correctly state the standard of care

nor does it declare the notice to be inadequate if the

14

plaintiff is incorrect in stating the standard of care.”

252 Mich App 670.

With respect to the panel’s first point, it is

plaintiff’s burden to establish compliance with § 2912b

and, in turn, to establish entitlement to application of

the notice tolling provision, § 5856(d). See Roberts I,

supra at 64.

With respect to the panel’s second point, we

acknowledge that the notice of intent is provided at the

earliest stage of a medical malpractice proceeding.

Indeed, the notice must be provided before the action can

even be commenced. At the notice stage, discovery as

contemplated in our court rules, MCR 2.300 et seq., has not

been commenced, and it is likely that the claimant has not

yet been provided access to the records of the professional

or facility named in the notice.5 It is therefore

reasonably anticipatable that plaintiff’s averments as to

the applicable standard may prove to be “inaccurate” or

erroneous following formal discovery; moreover, it is

probable that the alleged standard of care will be disputed

5
See MCL 600.2812b(5) (requiring the professional or
facility receiving notice to allow the claimant access to
all medical records related to the claim that are in the
control of the professional or facility within 56 days
after receipt of the notice).

15

by the defendants.6 In light of these circumstances, the

claimant is not required to craft her notice with

omniscience.7 However, what is required is that the

claimant make a good-faith effort to aver the specific

standard of care that she is claiming to be applicable to

each particular professional or facility that is named in

the notice.8

6
Indeed, the applicable standard of practice or care
is often a hotly disputed matter in a medical malpractice
action, and opposing expert witnesses are likely to
disagree regarding the particular standard to which a
defendant should be held.
7
The statute requires only that the claimant set forth
particular allegations and claims regarding the applicable
standard of care, breach, etc. Accordingly, while the
claimant must set forth allegations in good faith, in a
manner that is responsive to the specific queries posed by
the statute, and with enough detail to allow the potential
defendants to understand the claimed basis of the impending
malpractice action, the claimant is not required ultimately
to prove that her statements are “correct” in the legal
sense.
8
The phrase “standard of practice or care” is a term
of art in the malpractice context, and the unique standard
applicable to a particular defendant is an element of a
medical malpractice claim that must be alleged and proven.
Cox v Flint Bd of Hosp Mgrs, 467 Mich 1, 10; 651 NW2d 356
(2002). The applicable standard is governed either by
statute (see, for example, MCL 600.2912a[1], which sets
forth the particular proofs that a malpractice plaintiff
must present with respect to a defendant’s “standard of
practice or care,” depending on whether the defendant is a
general practitioner or a specialist) or, in the absence of
a statutory standard, by the common law. Cox, supra at 5,
20. The standard of practice or care that is applicable,
for example, to a surgeon would likely differ in a given
(continued…)

16

 Here, several different medical caregivers were

alleged to have engaged in medical malpractice. Yet,

rather than stating an alleged standard of practice or care

for each of the various defendants——a hospital, a

professional corporation, an obstetrician, a physician’s

assistant, and an emergency room physician——plaintiff’s

notices of intent allege an identical statement applicable

to all defendants9 in response to § 2912b(4)(b):

[T]he applicable standard of care required
that [the hospital, the P.C., Desnoyers, and
Davis] provide the Claimant with the services of
competent, qualified and licensed staff of
physicians, residents, interns, nurses and other
employees to properly care for her, render
competent advice and assistance in the care and
treatment of her case and to render same in
accordance with the applicable standard of care.

With respect to the hospital and the professional

corporation, this statement does not allege a standard

applicable specifically to a hospital or professional

corporation as opposed to any other healthcare professional

or facility. Moreover, this statement fails to indicate

whether plaintiff was alleging that these defendants were

(continued…)

set of circumstances from the standard applicable to an

OB/GYN or to a nurse.

9
Notably, no statement of an alleged standard of
practice or care is provided with respect to defendant
Atkins, the emergency room doctor.

17

vicariously or directly liable to her.10 Although it

appears from plaintiff’s complaint that she is claiming

that the hospital and the 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. Thus, plaintiff’s notices neither alleged a

standard specifically applicable to the defendant

facilities, nor did they serve as adequate notice to these

defendants that plaintiff planned to proceed under a

vicarious liability theory at trial.

The section of plaintiff’s alleged standard of care

that appears to be relevant to individual defendants

DesNoyers and Davis states that

the applicable standard of care required that
. . . [they] render competent advice and
assistance in the care and treatment of her case
and to render same in accordance with the
applicable standard of care.

Thus, in response to the statutory query, “What is the

applicable standard or practice or care alleged by the

10
See Cox, supra at 11 (“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.”).

18

claimant?”, plaintiff has essentially answered in part:

“The standard of care required that defendants adhere to

the standard of care.” Obviously, this statement is

tautological and unresponsive, and it cannot be viewed as

minimally compliant with § 2912b(4)(b). The alleged

standard also observes that defendants DesNoyers and Davis

were required to “properly care for” plaintiff and to

“render competent advice and assistance.” Such general

averments, however, are not adequately responsive to the

statutory requirement that the claimant allege an

applicable standard of practice or care relevant to the

defendant.11

Again, plaintiff was not required to provide a

statement of alleged standards of care or practice that

11
The dissent argues that nowhere in § 2912b(4) does
the Legislature require that a plaintiff allege a “standard
applicable specifically” to each defendant and, therefore,
neither should this Court. Post at 15-16. However, as
explained in n 8, the phrase “standard of practice or care”
is a term of art. Proof of the standard of care is
required in every medical malpractice lawsuit, and the
Legislature has chosen to require a plaintiff to address
standard of care issues in the notice of intent. Under a
proper understanding of this term, the standard applicable
to one defendant is not necessarily the same standard
applicable to another defendant. See Cox, supra at 10.
Thus, we are attempting to do nothing more than interpret
the Legislature’s requirement in § 2912b(4)(b)—that a
plaintiff provide a "statement" regarding the applicable
“standard of practice or care” alleged.

19

might ultimately be proven, after discovery and trial, to

be correct and accurate in every respect. However,

plaintiff was required to make a good-faith averment of

some particularized standard for each of the professionals

and facilities named in the notices.12 We conclude that

plaintiffs’ notices fail to comply with § 2912b(4)(b) with

respect to each defendant.

3. MCL 600.2912b(4)(c): BREACH

In response to § 2912b(4)(c), which requires a

claimant to state “[t]he manner in which it is claimed that

the applicable standard of practice or care was breached,”

plaintiff’s notice to the hospital states “See paragraph 2

12
We note that in some cases the burden of explication
under § 2912b(4)(b) will be minimal. For example,
allegations that a physician has extracted the wrong tooth,
amputated the wrong limb, or left a surgical instrument
embedded in a patient’s body cavity would give rise only to
a slight burden of articulation of the standard of care
under § 2912b(4)(b). Under such circumstances it would be
obvious to a casual observer that the standard of care
would require the physician to extract the correct tooth,
amputate the correct limb, or properly account for all
surgical instruments. However, in the instant case,
plaintiff’s allegations are based on an alleged failure to
diagnose an ectopic pregnancy and nothing more. Whether
the failure to diagnose this condition constituted a breach
of the standard of care, in contrast to the above examples,
is not obvious from the face of the allegations.
Accordingly, plaintiff was required to provide a more
exacting statement of the standard of care and of the
manner in which it was breached.

20

above.” The notice provided to the remaining defendants13

states:

Claimant claims that Obstetrics & Gynecology
of Big Rapids, Dr. Gail DesNoyers and Barb Davis,
PAC, failed to provide her with the applicable
standard of practice and care outlined in
paragraph 2 above.

The Court of Appeals panel held that the notices

complied with § 2912b(4)(c):

If we look only to the statements in
paragraphs two and three of the notices, they
arguably do not comply with the statute,
particularly with respect to the individual
defendants. However, nothing in the statute
requires that the notice of intent be in a
particular format or that each of the six
statutory items be separately listed or
identified. If we examine the respective first
paragraphs of the notices (the factual basis for
the claim), we do find a statement of the manner
in which plaintiff claims the standard of
practice or care was breached. Specifically, the
notices clearly state that the medical personnel
incorrectly diagnosed a spontaneous abortion
rather than an ectopic pregnancy, resulting in
the loss of plaintiff's only remaining fallopian
tube, thus rendering her sterile. [252 Mich App
672.]

We agree that nothing in § 2912b(4) requires that the

notice be in any particular format. The statute does,

however, clearly require the claimant to provide “a

13
As with the statement of the applicable standard of
care, the notice contains absolutely no statement with
respect to a breach of the standard of care by defendant
Atkins.

21

statement” of each of the enumerated categories of

information, and we disagree with the panel’s conclusion

that the required information need not be “separately . . .

identified.” Certainly, the statement must identify, in a

readily ascertainable manner, the specific information

mandated by § 2912b(4).

The notices fail to identify how the various

defendants breached the applicable standards of care.

Here, the hospital’s notice of intent refers to paragraph

2, in which the alleged standard of practice or care is set

out. The notice of intent applicable to the remaining

defendants states that defendants, defendant Atkins

excluded, “failed to provide [plaintiff] with the

applicable standard of practice and care.” In both

instances, plaintiff has stated, in essence: “Defendants

breached the standard of care by breaching the standard of

care.” Such a circular and unresponsive assertion is not

minimally compliant with the statutory mandate that

plaintiff provide a statement of the manner in which

defendants breached the applicable standards of care.14

14
At oral argument, plaintiff’s counsel conceded that
plaintiff’s notice merely stated, in essence, that “the
manner in which [the standard of care] was breached is the
fact that it was breached,” and counsel took the untenable
(continued…)

22

 We are also unable to discern in the paragraphs

setting forth the factual basis for the claim any statement

of the manner in which the standards of care were breached.

The notices indicate that plaintiff complained of severe

pain, was diagnosed with a miscarriage, underwent a

dilation and curettage procedure, was sent home, returned

to the hospital four days later, was diagnosed with an

ectopic pregnancy, and underwent surgery to remove her

“left tube.” Although these are certainly tragic

circumstances, the facts as set forth in the notices simply

do not serve to notify defendants of the manner in which

they breached their respective standard of care. The

notices do not aver how plaintiff alleged her treatment by

any defendant was deficient. There is no allegation, for

(continued…)
position that this is all that is required by §
2912b(4)(c). Such a construction renders the statutory
notice requirement completely nugatory. Moreover, it does
not fulfill the statutory purposes of notifying potential
malpractice defendants of the basis of the claims against
them.

Counsel’s construction of § 2912b(4)(c) is analogous
to the following hypothetical example: A parent sees that
a priceless lamp in his living room is broken. The parent
asks his child, “How did the lamp become broken?” The
child replies, “The lamp is broken.” The repetition of the
fact that the lamp is broken is unresponsive to the
question that was asked. Similarly, plaintiffs’ notices of
intent answer the question, “How was the standard of care
breached?” with the response, “The standard of care was
breached.”

23

example, that any of the defendants failed to perform

critical tests, incorrectly diagnosed her condition, or

failed to refer her to a specialist in keeping with the

appropriate standard of care. Although, perhaps, an

inference arises from the recitation of facts that

plaintiff was alleging that one or more of the defendants

should have earlier diagnosed an ectopic pregnancy, such an

“inference” is not sufficient to meet the statutory

requirement that plaintiff provide a statement of the

manner in which each defendant breached the applicable

standard of care.15

15
Plaintiff’s notices of intent state that defendants
engaged in “negligence” and, thus, it may said that
plaintiff specifically alleged in her notices that a
“breach” of the standard of care occurred. However, it is
not sufficient under § 2912b(4)(c) to merely assert that a
breach occurred, because that section requires that a
notice more precisely contain a statement regarding the
manner in which the breach is alleged to have occurred.

Despite enacting a statute that requires a plaintiff
in general terms to provide her contentions regarding six
aspects of her claim of medical malpractice, the dissent’s
view is that the Legislature created a nullity and that a
plaintiff satisfies her obligation under this statute by
essentially declaring, “I went to the doctor and something
bad happened.” Contrary to the dissent’s assertion that
the majority has required a “high degree of specificity”——
neither a term nor a concept found in our opinion——what we
have required is what the statute expressly requires: A
good-faith effort on the part of a plaintiff to answer the
statutory questions, including the manner in which the
(continued…)

24

 4. MCL 600.2912b(4)(d): ACTION THAT SHOULD HAVE BEEN TAKEN

In response to § 2912b(4)(d), which mandates a

statement of “[t]he alleged action that should have been

taken to achieve compliance with the alleged standard of

practice or care,” plaintiff’s notices merely refer the

reader to “paragraph 2” (which, on appeal, plaintiff claims

should have read “paragraph 1”). The Court of Appeals

panel held that the recitations of facts in the notices

were sufficient to meet this requirement:

Clearly, when reading the notices as a
whole, plaintiff alleges that the action that
should have been taken was to have timely
diagnosed the ectopic pregnancy so that it could
have been treated without the loss of plaintiff’s
left fallopian tube. [252 Mich App 672.]

Once again, we disagree. Plaintiff has failed to identify

any particular action that any defendant should have taken

in order to achieve compliance with the standard of care.

Defendants are left to guess not only which aspect of

plaintiff’s treatment was deficient, but what plaintiff

alleges defendants should have done differently.

5. MCL 600.2912b(4)(e): PROXIMATE CAUSE

Plaintiff’s notices of intent fail to satisfy the

requirement of § 2912b(4)(e) that the notice contain a

(continued…)

plaintiff claims that the applicable standard of care was

breached.

25

statement of “[t]he 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.” The

Court of Appeals held that

plaintiff clearly states that the misdiagnosis
resulted in having to have emergency surgery four
days later to remove her only remaining fallopian
tube as a result of the tube bursting from the
undiagnosed ectopic pregnancy, thus rendering her
sterile. This is clearly a statement of the
manner in which it is alleged that the breach of
the standard of practice or care proximately
caused the injury. [253 Mich App 673.]

We disagree with the assertion that plaintiff “clearly

state[d]” that a misdiagnosis by any of the defendants

resulted in her fallopian tube bursting and in her ensuing

sterility. Nowhere in the notices does plaintiff state

that any of the defendants misdiagnosed her condition; nor

do the notices state any consequences stemming from a

misdiagnosis. Indeed, the reader is left to wonder whether

plaintiff is alleging that a diagnosis of ectopic pregnancy

could have been made in time to avoid the rupture of her

“tube,” or whether she is alleging that her tube ruptured

as a direct result of her treatment by defendants DesNoyers

and Davis on October 4, 1996.16 With no specific

16
Plaintiff’s notices of intent state that “as a
result of [defendants’] negligence . . . , [plaintiff] is
(continued…)

26

allegations regarding the conduct of any of the named

defendants, the notices are insufficient to meet the

particularized requirements of § 2912b(4)(e).17

6. MCL 600.2912b(4)(f): HEALTH PROFESSIONALS AND FACILITIES

Finally, we agree with the Court of Appeals that the

notices of intent, which list “Mecosta County General

Hospital and all agents and employees, actual or

ostensible, thereof” as well as “Obstetrics & Gynecology of

Big Rapids, Gail DesNoyers, M.D., Michael Atkins, M.D.,

(continued…)
now unable to have any children.” At first blush, this
may appear to satisfy the proximate causation requirement
of § 2912b(4)(e). However, it is not sufficient under this
provision to merely state that defendants' alleged
negligence caused an injury. Rather, § 2912b(4)(e)
requires that a notice of intent more precisely contain a
statement as to the manner in which it is alleged that the
breach was a proximate cause of the injury.
17
The dissent urges, on the basis of legislative
history, that the Legislature’s purpose in enacting § 2912b
was to encourage settlement discussions. Post at 8. This
use of legislative history is questionable. See In re
Certified Question (Kenneth Henes Special Projects
Procurement, Marketing, & Consulting Corp v Continental
Biomass Industries, Inc), 468 Mich 109, 114-118 (2003).
However, assuming that the Legislature’s primary purpose
was to facilitate settlement, it is clear from the decision
to depart from the generally applicable notice pleading
environment created by our court rules that the Legislature
believed more particularized statements were required in
the context of medical malpractice litigation. Indeed, if
settlement is a primary objective of § 2912b, the
heightened particularity required by the statute fosters
this goal by providing a defendant with a clear
understanding of the plaintiff’s allegations.

27

Barb Davis, PAC, and all agents and employees, actual or

ostensible, thereof,” contain a proper statement of the

names of all defendant health professionals and facilities.

IV. CONCLUSION

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 make good-faith averments that 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. The information in the

notice of intent must be set forth with that degree of

specificity which will put the potential defendants on

notice as to the nature of the claim against them. 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,

28

be specifically identified in an ascertainable manner

within the notice.

The notices of intent supplied by plaintiff to

defendants in this case fail to comply with the statutory

mandate. Among the defendants are two different

facilities, an obstetrician, an emergency room physician,

and a physician’s assistant, yet no attempt was made to

identify a specific standard of practice or care applicable

to any particular defendant. Rather than indicating the

manner in which the (improperly alleged) standards of care

were breached by defendants, the notices simply indicate

that the standards were, in fact, breached. Nowhere in the

notices does plaintiff state what actions the various

defendants should have taken to comply with the appropriate

standards of practice or care, or how defendants’ conduct

constituted the proximate cause of plaintiff’s claimed

injury. Although the factual recitations in the notices

indicate that plaintiff suffered an adverse medical result,

this result is not connected in any meaningful way with the

conduct of any defendant. Accordingly, plaintiff did not

fulfill her obligation under § 2912b, and the statute of

limitations was not tolled during the notice period. We

therefore reverse the judgment of the Court of Appeals and

29

reinstate the judgments of the trial court granting summary

disposition to defendants.

Robert P. Young, Jr.
Maura D. Corrigan
Clifford W. Taylor
Stephen J. Markman

30

 S T A T E O F M I C H I G A N

SUPREME COURT

LISA ROBERTS,

Plaintiff-Appellee,

v No. 122312

MICHAEL ATKINS, M.D.,

Defendant-Appellant,

and

MECOSTA COUNTY GENERAL HOSPITAL,
GAIL A. DESNOYERS, M.D., BARB
DAVIS, and OBSTETRICS AND
GYNECOLOGY OF BIG RAPIDS, P.C.,
formerly known as GUNTHER, DESNYOYERS
& MEKARU,

Defendants.
_______________________________

LISA ROBERTS,

Plaintiff-Appellee,

v No. 122335

GAIL A. DESNOYERS, M.D., BARB
DAVIS, OBSTETRICS AND GYNECOLOGY
OF BIG RAPIDS, P.C., formerly
known as GUNTHER, DESNOYERS &
MEKARU,

Defendants-Appellants,

and

MICHAEL ATKINS, M.D., and
MECOSTA COUNTY HOSPITAL,
Defendants.
_______________________________

LISA ROBERTS,

Plaintiff-Appellee,

v No. 122338

MECOSTA COUNTY GENERAL HOSPITAL,

Defendant-Appellant,

and

GAIL A. DESNOYERS, M.D., MICHAEL
ATKINS, M.D., BARB DAVIS, and
OBSTETRICS AND GYNECOLOGY OF
BIG RAPIDS, P.C., formerly known
as GUNTHER, DESNOYERS & MEKARU,

Defendants.
_______________________________

KELLY, J. (dissenting).

INTRODUCTION

We granted leave to appeal to determine what

constitutes an adequate notice of intent under MCL

600.2912b(4) preparatory to the filing of a medical

malpractice complaint. The majority concludes that the

statute requires a high degree of specificity at the notice

stage of a potential lawsuit.

I respectfully disagree. Requiring such a level of

specificity is inconsistent with the statute's words and

purpose. I would hold that the notice of intent must

provide sufficient information about a claim that a

2

defendant may ascertain and investigate its basis and

determine whether to discuss settlement. After reviewing

the notices of intent that plaintiff provided in this case,

I conclude that they satisfy the statute’s requirements.

Therefore, I would affirm the decision of the Court of

Appeals.

FACTS AND PROCEDURAL HISTORY

Early in her pregnancy, plaintiff experienced severe

abdominal pain and bleeding. The defendant physicians

diagnosed a spontaneous abortion, performed a dilation and

curettage procedure, and sent plaintiff home to recover.

Plaintiff’s pain persisted. Three days later, it

worsened and she sought care at the defendant hospital.

The emergency room doctor, defendant Atkins, diagnosed

cramps and released plaintiff.

Later that night, plaintiff returned to the defendant

hospital. It was determined that she had had an ectopic

pregnancy that had ruptured her left fallopian tube. The

defendant physicians removed plaintiff’s left fallopian

tube. Because her right fallopian tube had been removed

several years earlier, the operation rendered her sterile.

Plaintiff brought suit for medical malpractice. She

claimed that the physicians' misdiagnoses led to her

sterility.

3

 Plaintiff’s counsel sent to the defendant hospital an

initial notice of intent to sue, as required by MCL

600.2912b(4).1 Counsel amended the notice approximately a

month later, added other defendants who are agents or

1
MCL 600.2912b provides in part:

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

(a) The factual basis for the claim.

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

(c) The manner in which it is claimed that
the applicable standard of practice or care was
breached by the health professional or health
facility.

(d) The alleged action that should have been
taken to achieve compliance with the alleged
standard of practice or care.

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

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

4

employees of the hospital, and sent the amended notice to

them.

Ultimately, plaintiff brought suit and defendants

moved for summary disposition. They asserted that the

notices of intent failed to comply with MCL 600.2912b(4),

and because by then the statutory period of limitations had

expired, plaintiff’s claims were barred. The trial court

granted the motion. The Court of Appeals vacated the

decision and remanded the case. 240 Mich App 175; 610 NW2d

285 (2000). It held that defendants had waived their right

to challenge the sufficiency of the notices.

This Court granted leave to appeal. A majority found

that a challenge to the sufficiency of the notices had not

been waived. It then remanded the case to the Court of

Appeals to consider whether plaintiff had complied with the

statute’s notice requirements. Roberts v Mecosta Co Gen

Hosp, 466 Mich 57; 642 NW2d 663 (2002) (Roberts I). On

remand, the Court of Appeals held that the plaintiff had

complied with the requirements. Roberts v Mecosta Co Gen

Hosp (On Remand), 252 Mich App 664; 653 NW2d 441 (2002).

We again granted leave to appeal. 468 Mich 869 (2003).

STANDARD OF REVIEW

We review summary disposition judgments de novo.

Harvey v Michigan, 469 Mich 1, 6; 664 NW2d 767 (2003). We

5

also review questions of statutory interpretation de novo.

Omelenchuk v City of Warren, 461 Mich 567, 571 n 10; 609

NW2d 177 (2000). See also Roberts I at 62.

STATUTORY CONSTRUCTION AND ANALYSIS

The issue before us is whether plaintiff’s notices

satisfied the requirements of MCL 600.2912b(4). Our duty

is to determine what the Legislature intended. Omelenchuk

at 576 n 19. We begin with the language of the statute,

and if the intent of the Legislature is clearly expressed,

no further construction is warranted. Helder v Sruba, 462

Mich 92, 99; 611 NW2d 309 (2000).

The statute by its terms requires that the notice

contain a “statement” of at least six items: (1) the

factual basis for the claim, (2) the alleged applicable

standard of practice or care, (3) the alleged manner in

which the applicable standard of practice or care was

breached, (4) the alleged action that should have been

taken to comply with the applicable standard of practice or

care, (5) the manner in which the breach of the standard of

care proximately caused the injury, and (6) the names of

all health professionals and health facilities that the

claimant is notifying under the statute. MCL 600.2912b(4).

To ascertain what the Legislature intended by this

statute, we first examine the meaning of the word

6

“statement.” The statute does not define “statement,” and

a resort to a lay dictionary to ascertain the meaning

intended is of limited usefulness. One dictionary

provides:

Statement, n 1. something stated. 2. a
communication or declaration in speech or
writing, setting forth facts, particulars, etc.
3. a single sentence or assertion: I disagree
with your last statement. [Random House
Webster’s College Dictionary (1995).]

A “statement” can be merely a general assertion or it can

be a detailed description.

Plaintiff argues that the statute requires the former,

and defendants argue that it requires the latter. The word

as it appears in the sentence is susceptible to both

meanings. Thus, to determine what the statute intends, we

examine its structure as a whole, and particularly, the

text surrounding the word "statement." G C Timmis & Co v

Guardian Alarm Co, 468 Mich 416, 420; 662 NW2d 710 (2003).

In discerning the intended meaning, we consider also

the Legislature's apparent purpose in enacting the

provision. In re Wirsing, 456 Mich 467, 474; 573 NW2d 51

(1998). We may even consider legislative history. Adrian

School Dist v Michigan Pub School Employees Retirement Sys,

458 Mich 326, 335; 582 NW2d 767 (1998).

7

 The statute in question requires that claimants

alleging medical malpractice send a notice of intent to sue

to potential defendants at least 182 days before filing a

complaint. MCL 600.2912b(1). Each potential party is then

required to make available to the others medical records in

his possession relating to the claim. MCL 600.2912b(5).

Within 154 days after receiving the notice of intent,

the defendants are required to respond to it stating (1)

the factual basis for their defense to the claim, (2) the

standard of practice or care that they allege is

applicable, (3) the manner in which they claim to have

complied with the standard of care, and (4) the reasons why

they contend that they were not the proximate cause of the

plaintiff’s alleged injury. MCL 600.2912b(7).

The statute anticipates that the defendants will often

challenge the alleged applicable standard of practice or

care and the manner in which it was breached. Id. The

statutory period of limitations is tolled during the

waiting period after the notice of intent is sent. MCL

600.5856(d). The 182-day waiting period before the filing

of a complaint is immediately lifted if the defendants

communicate in writing that they do not intend to settle

the claim. MCL 600.2912b(9).

8

 The overall structure and the operation of the notice

provision suggest that the Legislature intended the act to

encourage settlement discussions.2 The 182-day waiting

period enables the parties to engage in settlement

discussions before initiating a lawsuit, possibly avoiding

litigation entirely. During this period, information is

exchanged without regard to the formal rules of discovery.

Moreover, the plaintiff is effectively immobilized

while awaiting a response from the defendants. The waiting

period is waived only if the defendants file written notice

that they do not intend to settle the claim.

At this stage in the dispute, it is unlikely that all

anticipated experts and witnesses will have been identified

and deposed. Theories of liability and defenses may not

have been developed with precision. A higher level of

specificity about a claim emerges from the information

exchanged by the parties after the notice is sent.

The statute works no unfairness on defendants. The

potential defendants who receive the notice assuredly

possess a high level of medical expertise. They do not

require information of great specificity in order to begin

2
This conclusion is buttressed by statements in the
statute’s Senate Legislative Analysis, SB 270, August 11,
1993, and House Legislative Analysis, HB 4403-4406, March
22, 2993.

9

investigating an impending lawsuit. Also, most of the

records pertinent to a medical malpractice claim are likely

to be under the control of the defendants. A general

assertion of the basis for the claim and of the items

required by the statute is sufficient to inform them about

the claim and to encourage settlement discussions.

Moreover, the provision does not require a “unique

standard,” “specific” information, or a “particularized”

statement as the majority asserts. Ante at 16 n 8, 21, 19.

Had the Legislature intended extensive detail in the

notice, it would have required it.

Numerous other statutes specify “detailed,”

“complete,” or “full” statements, or statements made “with

specificity.” In the State Employees’ Retirement Act, for

example, each member is required to file a “detailed

statement” of his prior service as an employee. MCL 38.14.

MCL 500.424(2) in the Insurance Code provides:

In addition to subsection (1), an alien
insurer shall make and execute under oath a
report of its financial standing and of its
deposit together with a full statement of its
business in the United States for the year
preceding the statement pursuant to section 438.
[Emphasis added.]

MCL 462.2(2) in the railroad commission act
requires the governor to provide a “complete
statement” of the charges against a railroad
commissioner after removing the commissioner for

10

 neglect of duty or malfeasance. MCL 333.22231(4)
states:

(4) Before a final decision on an
application is made, the bureau of the department
designated by the director as responsible for the
certificate of need program shall issue a
proposed decision with specific findings of fact
in support of the proposed decision with regard
to each of the criteria listed in section 22225.
The proposed decision also shall state with
specificity the reasons and authority of the
department for the proposed decision. The
department shall transmit a copy of the proposed
decision to the applicant. [Emphasis added.]

These provisions demonstrate that the Legislature

knows what phrasing to use when it intends to require

extensive detail. Because it did not explicitly mandate

such specificity in this statute, we should refrain from

adding it ourselves.

In the past, the Court has avoided making a

requirement that notices be detailed if they serve the

object of the statute and do not prejudice the defendant.

Hummel v Grand Rapids, 319 Mich 616, 625; 30 NW2d 372

(1948). The decision in Omelenchuck recognized that

tolling provisions should not be traps for the unwary and

that, without proper notice, there can be no tolling.

Given that medical malpractice actions are complex and

fact-intensive, the Court is ill-advised to require a

11

detailed blueprint for notices of intent where the

Legislature did not.3 Omelenchuck at 576, n 19.

FACTUAL ANALYSIS

With these considerations in mind, I examine the

notices that plaintiff sent in this case to determine if

they satisfy the statute.

The September 19, 1996, notice of intent, amending the

August 15, 1996, notice sent to the defendant hospital set

out the following factual basis:

This is a claim for negligence which
occurred on October 4, 1994, at Mecosta County
General Hospital. It is claimed that on said date
while pregnant with her first child, Claimant
presented herself to Mecosta County General
Hospital complaining of severe pain. At that time
a diagnosis of a spontaneous abortion was made
and a D and C was performed. Claimant was sent
home at that time.

Over the course of the next few days
Claimant continued to experience pain and
cramping and, on October 7, 1994, was again seen
at Mecosta County General Hospital. Claimant was
told that the pain she was experiencing was
cramps from the D and C she had done and was sent
home.

3
The complex nature of medical malpractice would deter
the Legislature from requiring a high degree of specificity
in notices of intent to sue. The Legislature is presumed
to be aware of existing law. This includes judicial
interpretations of statutes. See People v Schultz, 435
Mich 517, 543-544; 460 NW2d 505 (1990). That renders it
more telling when the Legislature chose not to use the same
or similar words here as it used in other instances when it
wished to require detail.

12

 Claimant returned to the hospital on October
8, 1994, wherein it was discovered that Claimant
had not had a spontaneous abortion but had an
ectopic pregnancy in her left tube which had
burst. Emergency surgery was performed at that
time and her left tube was removed.

Claimant had her right tube removed
approximately ten years ago and, as a result of
the negligence set forth above, she is now unable
to have any children.

The September 23, 1996, notice of intent sent to the

remaining defendants gave the following factual basis:

This is a claim for negligence which
occurred on October 4, 1994, at Obstetrics &
Gynecology of Big Rapids. It is claimed that on
said date while pregnant with her first child,
Claimant presented herself to Barb Davis, PAC,
Dr. Michael Atkins, and Dr. Gail DesNoyers
complaining of severe abdominal pain and
bleeding. At that time a diagnosis of a
spontaneous abortion was made and a D & C was
performed at Mecosta County General Hospital.
Claimant was sent home at that time, despite Dr.
DesNoyer's [sic] knowledge of Claimant's history
of a prior ectopic pregnancy.

Over the course of the next few days,
Claimant continued to experience pain and
cramping and, on October 7, 1994, was seen at
Mecosta County General Hospital by Dr. Michael
Atkins. Claimant was told that the pain she was
experiencing was cramps from the D & C she had
done and was sent home.

Claimant returned to the hospital on October
8, 1994, wherein it was discovered that Claimant
had not had a spontaneous abortion but had an
ectopic pregnancy in her left tube which had
burst. Emergency surgery was performed at that
time and her left tube was removed.

Claimant had her right tube removed

13

 approximately ten years ago and, as a result of
the negligence set forth above, she is now unable
to have any children.

In these statements, plaintiff set out the factual

circumstances, alleged an initial misdiagnosis, and stated

the correct diagnosis.

The September 19 notice articulated the applicable

standard of care:

Claimant contends that the applicable
standard of care required that Mecosta County
General Hospital provide the claimant with the
services of competent, qualified and licensed
staff of physicians, residents, interns, nurses
and other employees to properly care for her,
render competent advice and assistance in the
care and treatment of her case and to render same
in accordance with the applicable standards of
care.

Similarly, the September 23 notice contained the following:

Claimant contends that the applicable
standard of care required that Obstetrics &
Gynecology of Big Rapids, Dr. Gail DesNoyers and
Barb Davis, PAC, provide the Claimant with the
services of competent, qualified and licensed
staff of physicians, residents, interns, nurses
and other employees to properly care for her,
render competent advice and assistance in the
care and treatment of her case and to render same
in accordance with the applicable standards of
care.

Our courts have long recognized that medical

malpractice is generally the failure to exercise that

degree of skill, care, and diligence exercised by members

of the same medical profession. Dorris v Detroit

14

Osteopathic Hosp Corp, 460 Mich 26; 594 NW2d 455 (1999);

Adkins v Annapolis Hospital, 116 Mich App 558, 564, 323

NW2d 482 (1982), affirmed 420 Mich 87; 360 NW2d 150 (1984).

Plaintiff’s notices state that the standard of care is to

provide competent services. Because this is sufficiently

close in meaning to exercising professional care, it meets

the requirement of MCL 600.2912b(4)(b) to delineate the

appropriate standard of care.

Where the standard of care is stated generally, it is

unsurprising that the same standard is specifically

applicable to each defendant. The majority’s conclusion

that the Legislature intended that there be the requirement

of a unique “standard applicable specifically” to each

defendant, ante at 19, is myopic. This requirement is not

in the statute. Hence, it does not exist.

To state the manner in which the alleged standard of

care was breached under MCL 600.2912b(4)(c), the September

19 notice to the defendant hospital refers to paragraph two

of the notice. The September 23 notice contains the

following statement: "Claimant claims that Obstetrics &

Gynecology of Big Rapids, Dr. Gail DesNoyers and Barb

Davis, PAC, failed to provide her with the applicable

standard of practice and care outlined in paragraph 2

above." It is manifest that plaintiff claims that the

15

actions of the defendant physician did not fulfill the duty

of care owed to plaintiff.

Both notices refer to paragraph two of the respective

notices to state the “[alleged] action that should have

been taken to achieve compliance with the alleged standard

of practice or care” and “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.”

MCL 600.2912b(4)(d), (e). When these paragraphs are read

together with the first paragraphs, they state that the

defendants should have correctly diagnosed plaintiff

according to their professional duty. They assert that a

correct diagnosis would have prevented the serious medical

injury that plaintiff suffered. Finally, the notices name

the defendants. MCL 600.2912b(4)(f).

I agree with the Court of Appeals that these notices

are not “picture[s] of clarity” or “the ‘perfect notice.’”

252 Mich App 673. However, I would find them sufficient

under the statute.4

4
Ironically, this case highlights why the Legislature
did not require a detailed statement. A potential
defendant is under no obligation to challenge upon its
receipt the sufficiency of the notice of intent to sue.
Roberts I. The plaintiff, while awaiting the defendant’s
response, cannot be assured that the notice is legally
(continued…)

16

 CONCLUSION

I would find that the Legislature intended that

parties alleging medical malpractice under MCL 600.2912b(4)

provide notice of intent to sue that includes a succinct

statement of certain enumerated items. It did not intend

that the statement contain extensive details. 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.

The statements in the notices of intent to sue

provided by plaintiff in this case satisfied the

requirements of MCL 600.2912b(4). They addressed each of

the statutorily enumerated items and provided adequate

notice of plaintiff’s claims. Defendants were given enough

information to investigate the basis for the claims and

consider settlement. Defendants have not asserted that

they misunderstood the notices; they have asserted merely

that the notices were insufficient under the statute.

(continued…)
sufficient. If its sufficiency should be challenged and
found to be deficient only after a lawsuit has been filed,
the period of limitations likely will have expired on the
claim. I believe that the Legislature did not intend to
impose particularized requirements on an injured party who
is effectively immobilized until either the defendant
responds or the waiting period elapses.

17

 For these reasons, I would affirm the decision of the

Court of Appeals.

Marilyn Kelly
Michael F. Cavanagh
Elizabeth A. Weaver

18