Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:
Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 2, 2008
MELISSA BOODT, as Personal
Representative of the Estate of
David Waltz, Deceased,
Plaintiff-Appellee/
Cross-Appellant,
v No. 132688
BORGESS MEDICAL CENTER,
Defendant-Appellee/
Cross-Appellee
and
MICHAEL ANDREW LAUER, M.D.,
and HEART CENTER FOR
EXCELLENCE, P.C.,
Defendants-Appellants/
Cross-Appellees,
and
MICHAEL ANDREW LAUER, M.D.,
P.C.,
Defendant.
_______________________________
BEFORE THE ENTIRE BENCH
PER CURIAM.
At issue in this wrongful-death, medical-malpractice action is whether
plaintiff’s notice of intent was sufficient with respect to the defendant physician,
Michael A. Lauer, M.D. The trial court granted defendants’ motion for summary
disposition, holding that plaintiff’s notice of intent was not sufficient, and the
Court of Appeals reversed with respect to the grant of summary disposition to
Lauer. 272 Mich App 621; 728 NW2d 471 (2006).
Regarding causation, the notice of intent states: “If the standard of care had
been followed, [David] Waltz would not have died on October 11, 2001.” This
statement does not describe 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,” as required by MCL 600.2912b(4)(e). Even when the notice is read in its
entirety, it does not describe the manner in which the breach was the proximate
cause of the injury. When so read, the notice merely indicates that Lauer caused a
perforation and that he then failed to do several things that he presumably should
have done, such as perform a pericardiocentesis in a timely manner. However, the
notice does not describe the manner in which these actions or the lack thereof
caused Waltz’s death. As this Court explained in Roberts v Mecosta Co Gen Hosp
(After Remand), 470 Mich 679, 699-700 n 16; 684 NW2d 711 (2004) (Roberts II),
“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
2
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.)
Although the instant notice of intent may conceivably have apprised Lauer
of the nature and gravamen of plaintiff’s allegations, this is not the statutory
standard; § 2912b(4)(e) requires something more. In particular, it requires a
“statement” describing 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)(e). The notice at issue here does not contain such a
statement.1
On the other hand, as we also explained in Roberts II, 470 Mich at 694, §
2912b(4) does not require a plaintiff to provide statements in the notice that
“ultimately [must] be proven, after discovery and trial, to be correct and accurate
in every respect.” We recognize that a “notice of intent is provided at the earliest
stage of a medical malpractice proceeding,” id. at 691, and, thus, a plaintiff need
only “specify what it is that she is claiming under each of the enumerated
categories in § 2912b(4),” id. at 701 (emphasis in original). As long as these
1
The dissent contends that the notice does contain such a statement
because, according to the dissent, it states that “Lauer negligently caused Waltz’s
death by the continued administration of an anticoagulant after internal bleeding
was detected.” Post at 4. However, contrary to the dissent’s contention, this
statement cannot be found anywhere in the notice of intent. Instead, the notice
only states that defendants “[f]ailed to timely recognize the perforation and stop
the anticoagulation and order an echocardiogram[.]” Nowhere in the notice does
plaintiff state the “manner in which [this failure] was the proximate cause of the
injury claimed in the notice.” MCL 600.2912b(4)(e).
3
claims are made in good faith, the notice is not rendered insufficient simply
because it is later discovered that the claims are imperfect or inaccurate in some
respect. Id. at 692 n 7.
This Court has already held that a defective notice of intent does not toll the
period of limitations. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 64; 642
NW2d 663 (2002) (Roberts I).2 Plaintiff now argues that even if the notice here
did not toll the period of limitations, under MCL 600.5856(a) and MCL
600.2912d(1),3 the filing of the complaint and the affidavit of merit did toll the
period. See Kirkaldy v Rim, 478 Mich 581; 734 NW2d 201 (2007) (holding that
2
The dissent complains that defendant waited until it was “too late to
correct an alleged deficiency” to raise it. Post at 2. However, as we explained in
Roberts I, 466 Mich at 59, “MCL 600.2912b places the burden of complying with
the notice of intent requirements on the plaintiff and does not implicate a
reciprocal duty on the part of the defendant to challenge any deficiencies in the
notice before the complaint is filed.” Further, the case the dissent relies on for its
position that “dismissal on the basis of a deficient notice of intent [is]
inappropriate when there was no prejudice to the recipient,” post at 8, citing Lisee
v Secretary of State, 388 Mich 32; 199 NW2d 188 (1972), did not involve the
notice of intent specifically required by § 2912b. Further, in Rowland v
Washtenaw Co Rd Comm, 477 Mich 197, 213; 731 NW2d 41 (2007), this Court, in
contrast to the holding in Lisee, supra at 45, made clear that a prejudice
requirement cannot be read into a statutory notice provision that does not itself
contain such a requirement. The Rowland Court’s approach is most consistent
with our goal to uphold the Legislature’s intent by honoring the Legislature’s
choice of language. Our adherence to Rowland explains why we treat the statutory
language at issue here differently than how Lisee treated the statutory language at
issue in that case.
3
MCL 600.5856(a) states that the filing of a complaint tolls the period of
limitations. MCL 600.2912d(1) requires a medical-malpractice plaintiff to file an
affidavit of merit with the complaint.
4
the filing of the complaint and affidavit of merit tolls the period of limitations, at
least until the sufficiency of the affidavit is successfully challenged). We
respectfully disagree.
MCL 600.2912b(1) states that “a person shall not commence an action
alleging medical malpractice against a health professional or health facility unless
the person has given the health professional or health facility written notice under
this section not less than 182 days before the action is commenced.” MCL
600.2912b(4) states that the “notice given to a health professional or health facility
under this section shall contain a statement of at least all of the following . . . .”
Therefore, a plaintiff cannot commence an action before he or she files a notice of
intent that contains all the information required under § 2912b(4). See Roberts I,
466 Mich at 64 (holding that the period of limitations is not tolled unless notice is
given in compliance with all the provisions of § 2912b[4]). Because plaintiff’s
notice of intent here did not contain all the information required under § 2912b(4),
she could not have commenced an action.4 Therefore, her complaint and affidavit
of merit could not have tolled the period of limitations.
4
The dissent argues that, pursuant to MCL 600.2301, we should remand
this case to the trial court to allow plaintiff to amend her notice of intent. 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
(continued . . .)
5
This case is distinguishable from Kirkaldy, because there the plaintiff
presumably filed a notice of intent that satisfied § 2912b(4)(e). We concluded that
the plaintiff’s subsequent filing of a complaint and an affidavit of merit, which
was later determined to be defective, tolled the period of limitations until the
affidavit’s sufficiency was successfully challenged. In this case, however,
plaintiff failed to file a notice of intent that satisfied the requirements of §
2912b(4)(e), and, thus, plaintiff was not yet authorized to file a complaint and an
affidavit of merit. Therefore, the filing of the complaint and the affidavit of merit
(continued . . .)
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.
As discussed above, because the notice of intent was deficient, no action is
pending, and § 2301 only applies to pending actions. In addition, § 2301 only
applies to a “process, pleading, or proceeding.” Although the dissent
acknowledges that a notice of intent is not a pleading, it argues that a notice of
intent is a “proceeding.” Post at 6 and n 6. However, contrary to the dissent’s
contention, our decision in Fildew v Stockard, 256 Mich 494; 239 NW 868 (1932),
did not even discuss the meaning of the term “proceeding.” Moreover, any
discussion in Fildew regarding whether the statute permitted amendment was
dictum in light of the fact that the Court first concluded that the defendants had
waived any objection to the plaintiff’s misdescription in the summons and the
affidavits for writs of garnishment of the state in which the defendant company
was incorporated. Id. at 496. Likewise, our decision in Tudryck v Mutch, 320
Mich 99, 107; 30 NW2d 518 (1948), did not discuss the meaning of the term
“proceeding.” Nor did we apply the predecessor of § 2301 to amend the
settlement agreement in Tudryck, as demonstrated by the fact that we found it
“unnecessary to [even] determine [whether] the settlement agreement was
defective . . . .” Id. Neither of these cases stands in any way for the proposition
that a notice of intent constitutes a “proceeding.”
6
that plaintiff was not yet authorized to file could not possibly have tolled the
period of limitations.
Because we conclude that plaintiff’s notice of intent with regard to Lauer
did not satisfy the requirements of § 2912b(4)(e), we reverse in part the judgment
of the Court of Appeals and reinstate the trial court’s order granting summary
disposition to Lauer. Finally, we deny plaintiff’s application for leave to appeal as
a cross-appellant because we are not persuaded that we should review the question
presented.
Clifford W. Taylor
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
7
STATE OF MICHIGAN
SUPREME COURT
MELISSA BOODT, as Personal
Representative of the Estate of
David Waltz, Deceased,
Plaintiff-Appellee/
Cross-Appellant,
v No. 132688
BORGESS MEDICAL CENTER,
Defendant-Appellee/
Cross-Appellee
and
MICHAEL ANDREW LAUER, M.D.,
and HEART CENTER FOR
EXCELLENCE, P.C.,
Defendants-Appellants/
Cross-Appellees,
and
MICHAEL ANDREW LAUER, M.D.,
P.C.,
Defendant.
_______________________________
CAVANAGH, J. (dissenting).
I believe that plaintiff has stated the manner in which the perforation of
decedent’s artery was the proximate cause of his death and, thus, that her notice of
intent meets the requirements of MCL 600.2912b. I also believe that when a
notice of intent required by MCL 600.2912b is deficient, MCL 600.2301 should
control and the deficiency should be disregarded if there is no effect on the
substantial rights of a party. Most importantly, I believe that the Legislature did
not intend a statute mandating notice to one party to be used by that party to defeat
another party’s claim after it is too late to correct an alleged deficiency.
Therefore, I respectfully dissent.
On October 5, 2001, David Waltz was admitted to Borgess Medical Center
for chest pains. The next day, Dr. Michael Lauer performed an angioplasty on
Waltz. During the procedure, Lauer perforated Waltz’s coronary artery. Waltz
experienced severe hypotension and hypoxia. Dr. Alponse DeLucia, III, a
cardiothoracic surgeon, performed emergency coronary-bypass surgery, but, by
this time, Waltz had suffered an anoxic brain injury. He died six days later, on
October 11, 2001. According to Lauer’s own testimony, the perforation was the
cause of Waltz’s death.
Plaintiff is the personal representative of Waltz’s estate. Following the
requirements of MCL 600.2912b(1) and (2), plaintiff mailed a notice of intent
(NOI) to three defendants on January 13, 2003.1 After waiting 182 days, as
required by MCL 600.2912b(1), plaintiff commenced this action by filing a
complaint naming the three defendants and an affidavit of merit on June 19, 2003.
Plaintiff filed the complaint and affidavit four months before the expiration of the
1
The three named defendants are Lauer, Borgess Medical Center, and
Heart Center for Excellence, P.C.
2
applicable period of limitations. MCL 600.5805(5), now MCL 600.5805(6). In
February 2005, 20 months after plaintiff filed suit and more than two years after
receiving plaintiff’s NOI, defendants filed a motion for summary disposition,
claiming that a defect in plaintiff’s NOI entitled them to dismissal.
The majority concludes that plaintiff did not meet the requirements of MCL
600.2912b(4)(e), which requires a statement of 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.” I disagree.
Plaintiff’s NOI states that “Mr. Waltz presented to defendants for an
elective [percutaneous transluminal coronary angioplasty]. During the procedure,
the defendant caused a perforation which led to Mr. Waltz’ death.” Plaintiff’s
NOI further alleges that Waltz might have survived but for negligence in
responding to the perforation. The NOI alleges actions that defendants should
have taken but did not. It states that defendants did not (1) recognize the
perforation in a timely manner, (2) stop the administration of an anticoagulant, (3)
order an echocardiogram, (4) insert a balloon pump, (5) timely perform a
pericardiocentesis,2 (6) attempt another pericardiocentesis after the initial attempt
2
According to MedlinePlus, Medical Encylopedia, a service of the National
Institutes of Health and the United States National Library of Medicine:
Pericardiocentesis involves the use of a needle to withdraw
fluid from the pericardial sac (membrane that surrounds the heart).
(continued . . .)
3
proved unsuccessful, and (7) keep the LAD3 wire in place to maintain access to
the blood vessel.
I believe that this is a statement of the manner in which Lauer’s breach was
the proximate cause of Waltz’s death. Plaintiff’s NOI alleges that Lauer’s breach
caused a perforation of Waltz’s artery and deprived Waltz of the enumerated
means that would have helped him survive the emergency.
This Court has stated that, given the presuit timing of the notice and lack of
information available, “the claimant is not required to craft her notice with
omniscience”; thus, it is not fatal that the allegations in the NOI are inaccurate.
Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 691; 684 NW2d
711 (2004). Plaintiff alleges, for example, that Lauer negligently caused Waltz’s
death by the continued administration of an anticoagulant after internal bleeding
(continued . . .)
***
This test may be performed to remove fluid that is
compressing the heart for examination. It is usually done to evaluate
the cause of a chronic or recurrent pericardial effusion (fluid in the
pericardial sac). It may also be done as a treatment measure to
relieve cardiac tamponade (compression of the heart from an
accumulation of fluid within the pericardial sac).
[ (visited June 2, 2008).]
3
“LAD” refers to the left anterior descending coronary artery, in which the
guide wire was placed for Waltz’s angioplasty.
4
was detected.4 This may or may not be accurate, but it is an allegation of the
manner in which Lauer’s negligence was the proximate cause of the injury in this
case.
I am uncertain what the majority finds lacking here, and the majority does
not specify it. In fact, the majority appears to say that plaintiff did not state the
manner of causation because she did not state the manner of causation. I would
find plaintiff’s statement sufficient under MCL 600.2912b(4)(e).
Additionally, if plaintiff’s NOI were deficient, I would allow her to amend
it or direct the trial court to disregard the deficiency in this case. The most
obvious, direct, and irrefutable legislative intent of this statute is notice. Indeed,
the statute mandates that a potential medical-malpractice defendant receive notice
of impending litigation. There is no indication of an intent for the NOI to be used
as a trap for the unwary, ambushing a plaintiff who is without notice of the
technical defect in her NOI.5 The majority’s decision annihilates notice for a
plaintiff with the slightest deficiency under MCL.600.2912b. What is worse, a
plaintiff may receive this terminal blow, not only without notice of the NOI’s
deficiency, but after any opportunity to correct the defect is past.
I believe that MCL 600.2301 should apply when an NOI is deficient. That
statute states:
4
This allegation is readily ascertainable in plaintiff’s NOI.
5
In South Norfolk v Dail, 187 Va 495, 503; 47 SE2d 405 (1948), the court
aptly referred to dismissal of a claim on the basis of a defective notice as “a trap
for the unwary.”
5
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.
While MCR 2.118 controls the amendment of pleadings, an NOI is not a pleading,
and its amendment is controlled by MCL 600.2301, which applies to any process
or proceeding before a court.6
The statute allows amendment “at any time” before judgment is rendered.
At the time defendants asserted that plaintiff’s NOI was defective, judgment had
not been entered (in fact, the trial had not even begun yet). Therefore, allowing
amendment is proper. The amendment may be “either in form or substance.” So
amending the substance of the NOI to more clearly state, for example, the manner
in which the breach caused the injury is proper.
The statute operates “for the furtherance of justice.” Justice is furthered by
applying MCL 600.2301 in a case in which a statute mandating notice to one party
operates as a terminal trap without notice to the party required to give notice. In
6
In my view, service of an NOI is part and parcel of medical-malpractice
“proceedings” in Michigan; service of an NOI is encompassed by MCL 600.2301.
See Fildew v Stockard, 256 Mich 494; 239 NW 868 (1932) (applying 1929 CL
14144, a predecessor of MCL 600.2301, to an affidavit for a writ of garnishment
that was required to be filed before commencement of the action), and Tudryck v
Mutch, 320 Mich 99, 106-107; 30 NW2d 518 (1948) (applying 1929 CL 14144 to
a settlement agreement and stating that “[t]o argue at this late date that the
Tudrycks did not authorize the settlement or that their attorney exceeded his
authority is, to say the least, not appealing to the conscience of the Court”).
6
this case, Lauer has not asserted that plaintiff’s claim lacks merit, that he was not
negligent, or that plaintiff’s notice failed to put him on notice of plaintiff’s claim.
Lauer merely alleges that plaintiff’s NOI was technically insufficient under MCL
600.2912b. The aim of MCL 600.2301 is “‘to abolish technical errors in
proceedings and to have cases disposed of as nearly as possible in accordance with
the substantial rights of the parties.’” Gratiot Lumber & Coal Co v Lubinski, 309
Mich 662, 668-669; 16 NW2d 112 (1944) (citation omitted). If plaintiff’s NOI
were deficient, MCL 600.2301 should apply to allow amendment.
The second sentence of MCL 600.2301 requires a court to “disregard any
error or defect in the proceedings which do not affect the substantial rights of the
parties.” I do not believe that Lauer’s substantial rights would be affected by
disregarding a defect in plaintiff’s NOI in this case. The only possible effect on
Lauer is lack of notice. But lack of notice is not evident here because he had
actual notice.7 Indeed, in deposition testimony taken on October 24, 2003, Lauer
stated that he knew what the case was about. In his answer to plaintiff’s
interrogatories, submitted on December 3, 2003, Lauer admitted that he caused the
perforation of Waltz’s artery and that the perforation caused Waltz’s death. When
asked in those interrogatories whether he admitted negligence, Lauer responded,
7
Additionally, the specific notice requirements of MCL 600.2912b(4) are
precisely duplicated in the complaint and affidavit of merit once litigation is
commenced. See MCL 600.2912d(1), listing the required content of an affidavit
of merit; MCR 2.111(B), listing the required content of a complaint; and Locke v
Pachtman, 446 Mich 216, 222; 521 NW2d 786 (1994), stating the requirements
for a claim asserting medical malpractice.
7
“Perforation is a rare, but accepted, complication of [percutaneous coronary
intervention, i.e., angioplasty], even when everything is done properly.” Lauer
knew what plaintiff’s claim was about. He now challenges that claim only to
invalidate it after plaintiff can no longer fix the alleged error.8
In similar circumstances, this Court held that dismissal on the basis of a
deficient notice of intent was inappropriate when there was no prejudice to the
recipient. In Lisee v Secretary of State, 388 Mich 32; 199 NW2d 188 (1972), the
plaintiff gave the Secretary of State notice of a potential claim, as required by
MCL 257.1118, which stated:9
In all actions in which recovery is to be sought against the
[motor vehicle accident claims] fund, said action must be
commenced within 3 years from the time the cause of action accrues.
Provided that recovery from the fund shall not be allowed in any
event unless notice of intent to claim against the fund is served upon
the secretary, on a form prescribed by him, within 1 year of the date
that the cause of action shall accrue. [Emphasis added.]
The Secretary of State refused to pay the plaintiff’s claim and defended on the
grounds that the plaintiff had failed to file a notice of intent within the statutory
period. Lisee, supra at 37. This Court held that the deficient notice of intent did
not bar recovery because there was no prejudice to the Secretary of State. Id. at
45. We reasoned as follows:
8
Because I believe that plaintiff’s notice of intent was sufficient, or that
any insufficiency should be disregarded under MCL 600.2301, I do not reach the
issue whether plaintiff’s complaint and affidavit of merit tolled the period of
limitations.
9
After the claim accrued in Lisee, the statute was amended to make the
notice period six months, among other changes. 1968 PA 223.
8
The purpose of the notice provision of [MCL 257.1118] is
met in this case. The Secretary of State did receive actual notice of
the accident through the notice of intent to claim filed by the estate
of Ella Burgy . . . . Hence, the Secretary of State was not prejudiced
in any way. Because of the remedial nature of this Act and because
of the lack of prejudice to the defendant, we hold that plaintiffs’
failure to file notice within the time required under [MCL 257.1118]
is not a bar to recovery under the circumstances of this case. [Id. at
44-45 (emphasis added).]
There is no reason to treat MCL 600.2912b differently from MCL 257.1118 when
the critical language is nearly identical.
The majority states that MCL 600.2912b places no duty on a defendant to
challenge deficiencies in a plaintiff’s NOI before the plaintiff’s case is filed. The
question here is not one of a defendant’s duty; rather, the question is one of
legislative intent. The clear intent of MCL 600.2912b is to require pretrial notice
to potential medical-malpractice defendants. I find no indication in the statute that
it was intended to trap unwary plaintiffs and defeat otherwise meritorious claims
months or years after an action is commenced.
I believe that plaintiff’s NOI contains a statement of the manner in which
Lauer’s breach caused the injury at issue. If plaintiff’s NOI were deficient, I
would remand this case to the trial court for consideration under MCL 600.2301.
On remand, Lauer would be free to argue that his substantial rights have been
affected.
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
9