Order Michigan Supreme Court
Lansing, Michigan
March 27, 2009 Marilyn Kelly,
Chief Justice
135706 Michael F. Cavanagh
AGNES HARDACRE and GERALD Elizabeth A. Weaver
HARDACRE, Maura D. Corrigan
Robert P. Young, Jr.
Plaintiffs-Appellees, Stephen J. Markman
v SC: 135706 Diane M. Hathaway,
COA: 276934 Justices
Saginaw CC: 04-054872-NH
SAGINAW VASCULAR SERVICES,
P.C., and GEORGE CARTY, M.D.,
Defendants-Appellants.
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On order of the Court, the application for leave to appeal the October 25, 2007
order of the Court of Appeals is considered, and it is DENIED, because we are not
persuaded that the questions presented should be reviewed by this Court.
CORRIGAN, J. (dissenting).
I would reverse. The circuit court incorrectly concluded that the plaintiff’s notice
of intent comported with the statutory presuit notice requirements for medical
malpractice actions. In particular, the notice failed to state “[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,” as required by MCL 600.2912b(4)(e).
Plaintiff’s claim originated from alleged improper medical and surgical care
provided in connection with bypass surgeries on her left leg. In the presuit notice, she
stated that, during the first surgery, “grafts were placed in a way so as not to adequately
bypass the occluded segments of the vessel . . . .” About two weeks after the first
surgery, defendants performed a second surgery on the same leg. Plaintiff alleged that
the “graft was sewn too short.” She stated that, two days after surgery, “while walking in
the hallway of the hospital, [she] experienced a tearing sensation in her left calf due to
tearing of the graft.” She returned to surgery that day for repair. Plaintiff further alleged
that defendants knew about her history of vascular disease and hematologic history—a
history consistent with a clotting disorder. She asserted that, after both admissions,
defendants failed to discharge her with necessary anticoagulants.
Within a week of her second discharge, plaintiff was readmitted for “failure of the
left bypass procedures.” She consulted with an orthopedic surgeon and the decision was
2
made to amputate her left leg above the knee. Plaintiff claims that defendants committed
malpractice that resulted in the need for amputation. But the notice fails to explain how
defendants’ acts were the proximate cause of the orthopedic surgeon’s decision to
amputate.
The proximate cause section of the notice merely states that “[t]imely and proper
compliance with the Standard of Care would have prevented the need for repeat surgery
and need for amputation of the leg.” The standard of care section, however, merely
repeats plaintiff’s malpractice allegations by listing several potential methods of injury
prevention; it states that defendants should have recognized the significance of plaintiff’s
clotting disorder, administered anticoagulant medication after surgery, placed bypass
grafts to reestablish blood flow to the lower extremity, and used an appropriately sized
graft. The notice fails to state how defendants’ surgical care or failure to provide an
anticoagulant proximately caused an injury that resulted in the need for amputation.
Thus, the notice was insufficient as a matter of law. It failed to allege any causative link
between the claimed malpractice and the ultimate injury, which could have been the
result of many things, presumably including plaintiff’s underlying poor vascular
condition or an infectious process unrelated to the alleged acts of malpractice.
Accordingly, plaintiff’s purported statement of proximate cause is at least as
deficient as the statement we found lacking in Boodt v Borgess Med Ctr, 481 Mich 558
(2008). There, the statement of proximate cause similarly alleged: “If the standard of
care had been followed, [the decedent] would not have died . . . .” Id. at 560. But, as
here, the standard of care section simply listed several alleged acts of malpractice, such as
the defendant’s negligent perforation of an artery during surgery and failure to perform a
timely pericardiocentesis. Id. Thus, as here, the notice did not “describe the manner in
which these actions or the lack thereof caused [the decedent’s] death.” Id. As we stated
in Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 699-700 n 16 (2004),
“it is not sufficient . . . 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.” (Emphasis in original.)
For these reasons, I dissent from the order denying leave. At a minimum, I would
remand this case for the Court of Appeals to consider defendants’ challenges to the
notice.
MARKMAN, J., joins the statement of CORRIGAN, J.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
March 27, 2009 _________________________________________
d0324 Clerk