Plaintiff can’t amend NOI to add a party, MSC rules

A medical malpractice plaintiff can’t use Bush v. Shabahang and MCL 600.2301 to amend his notice of intent (NOI) to add a party to the lawsuit, the Michigan Supreme Court ruled.

In the majority decision of Driver v. Cardiovascular Clinic, Justice Mary Beth Kelly wrote that the NOI only applies to the person upon which it was served. Therefore it didn’t toll the statute of limitations for any non-parties.

Further, she wrote, Bush is inapplicable to the case because it requires the case be pending, which this one was not, at least against the non-party.

By its plain language, MCL 600.2301 only applies to actions or proceedings that are pending. Here, plaintiff failed to commence an action against CCA before the six-month discovery period expired, and his claim was therefore barred by the statute of limitations. “An action is not ‘pending’ if it cannot be ‘commenced’ . . . .” In Bush,
however, this Court explained that an NOI is part of a medical malpractice “proceeding.” The Court explained that, “[s]ince an NOI must be given before a medical malpractice claim can be filed, the service of an NOI is a part of a medical malpractice ‘proceeding.’ As a result, [MCL 600.2301] applies to the NOI ‘process.’”
Although plaintiff gave CCA an NOI, he could not file a medical malpractice claim against CCA because the six-month discovery period had already expired. Service of the NOI on CCA could not, then, have been part of any “proceeding” against CCA because plaintiff’s claim was already time-barred when he sent the NOI. A proceeding cannot be pending if it was time-barred at the outset. Therefore, MCL 600.2301 is inapplicable because there was no action or proceeding pending against CCA in this case.

She also said that allowing the plaintiff to amend the NOI would alter the substantial rights of the non-party.

Every defendant in a medical malpractice suit is entitled to a timely NOI. The legislative purpose behind the notice requirement “was to provide a mechanism for ‘promoting settlement without the need for formal litigation, reducing the cost of medical malpractice litigation, and providing compensation for meritorious medical malpractice claims that would otherwise be precluded from recovery because of litigation costs . . . .’” Applying MCL 600.2301 in the present case would deprive CCA of its statutory right to a timely NOI followed by the appropriate notice waiting period, and CCA would be denied an opportunity to consider settlement. CCA would also be denied its right to a statute-of-limitations defense. These outcomes are plainly contrary to, and would not be in furtherance of, the Legislature’s intent in enacting MCL 600.2912b.

Finally, the court held that Burton v. Reed City Hosp. is still alive, even under Bush.

Nothing in Bush altered our holding in Burton. The central issue in Bush involved the effect an NOI had on tolling when the NOI failed to comply with the content requirements of MCL 600.2912b(4). The central issue in Burton involved the effect the plaintiff’s failure to comply with the notice-waiting-period requirements had on tolling. Indeed, the Bush Court repeatedly emphasized that the focus of MCL 600.5856(c) is compliance with the notice waiting period set forth in MCL 600.2912b.67 In contrast to placing doubt on the viability of Burton, this aspect of Bush aligned with Burton’s holding that a plaintiff must comply with the notice waiting period to ensure the complaint tolls the statute of limitations.

Chief Justice Robert P. Young Jr. concurred, incorporating by reference his dissent from Potter v. McCleary regarding the service of an NOI on a professional corporation.

Justice Diane M. Hathaway dissented, arguing that the plaintiff should have been allowed to amend the notice of non-party statute.

The majority erroneously asserts that plaintiff cannot use the NNPF 91-day window because plaintiff did not provide an NOI to CCA six months before filing the original action. However, the majority errs in this analysis. Under this reasoning, no plaintiff who brings a malpractice lawsuit under the discovery rule can ever use the NNPF statute to bring a claim against an identified nonparty at fault because no plaintiff will ever have provided an NOI to a nonparty at fault six months before filing the original suit. This reasoning renders an entire provision of the NNPF statute, the provision
allowing plaintiffs to file claims against nonparties at fault, nugatory. This clearly was not the intent of the Legislature and violates the basic tenets of statutory construction.

The majority fails to recognize that the NNPF statute creates it own 91-day window in which to bring claims against identified nonparties at fault. If the majority’s reasoning were correct, and a plaintiff were not afforded the opportunity to start his or her claim by providing an NOI to the nonparty at fault during the 91-day window, the NNPF and NOI statutes would be in irreconcilable conflict.

She wrote that, in this instance, the plaintiff tried to meet the requirements of the statute, and therefore, Bushshould have allowed him to amend the NOI.

Justice Michael F. Cavanagh said he would concur with the result of Hathaway’s dissent.

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MSC: Affidavit of merit not a pleading, can’t be amended retroactively

Since it was decided in 2009, the Michigan Supreme Court’s decision in Bush v. Shabahang has been used by the Court of Appeals to allow plaintiffs to fix several different types of defects in medical malpractice-specific pleadings.

But the court’s decision in Ligons v. Crittendon Hospital denied a plaintiff the opportunity to amend a defective affidavit of merit (AOM) and dismissing the case.

Writing for the majority, Justice Brian Zahra said the AOM isn’t a “pleading” under the court rules, so any rule allowing an amended “pleading” doesn’t apply.

An AOM, even if required to be appended to a complaint, is not included in this restrictive definition of a “pleading.” Plaintiff relies heavily on a statement in Barnett v Hidalgo, which described an AOM as “part of the pleadings” in determining that an AOM is “generally admissible as an adoptive admission[.]” But plaintiff fails to appreciate the context in which the statement was made: describing a document as “part” of the pleadings when addressing an evidentiary issue does not turn the document into a pleading for purposes of MCR 2.118(D) if it does not meet the definition in MCR 2.110(A).60 Indeed, elsewhere Barnett clearly referred to the AOM as distinct from the complaint, stating that AOMs “are required to accompany a complaint . . . .” Id. at 160. Under MCR 2.110(A)(1), for purposes of the court rules it is the “complaint” itself that constitutes a “pleading,” not the complaint and any document accompanying it. Barnett neither held nor relied on the premise that an AOM is a pleading for purposes of the rule permitting amendment of pleadings, MCR 2.118

Zahra also wrote that Bush doesn’t apply to AOMs either.

The Bush Court’s application of MCL 600.2301 to a medical malpractice NOI was rooted in the Legislature’s 2004 amendment of MCL 600.5856(c), the notice-tolling statute, and does not apply to AOMs. Unlike NOIs, which give notice to defendants, AOMs are meant to weed out frivolous cases before they are ever filed. Applying Bush beyond the scope of the 2004 amendment of MCL 600.5856(c) and NOIs to AOMs would be an unwarranted expansion of its focus on the notice-tolling statute, would free the opinion from its statutory moorings, would frustrate the purpose of the AOM requirement, and would create unnecessary conflict with existing caselaw, such as Kirkaldy, which Bush did not overrule. We therefore decline to apply the rationale of Bush beyond its limited statutory focus.

The majority said dismissal with prejudice is required in such circumstances.

Justice Michael Cavanagh dissented, arguing that the AOM in the case wasn’t defective because the statute doesn’t require specificity, and even if it was, the statutes don’t require that the case be dismissed with prejudice.

Nevertheless, assuming arguendo that the AOM in this case was deficient, I believe that MCL 600.23013 should apply to allow a cure of the alleged deficiency within the AOM. To begin with, applying MCL 600.2301 would not conflict with MCL 600.2912d, when the latter is read as a whole. Indeed, as recognized by Justice HATHAWAY, the AOM statute does not expressly provide a penalty for deficiencies within the contents of an AOM. And, notably, the allowances of additional time to file an AOM in MCL 600.2912d(2) and (3) do not explicitly preclude amending or disregarding defects within the contents of an AOM. Instead, those provisions merely provide a plaintiff additional time in which to file the initial AOM and, thus, do not address curing an arguably defective AOM. And while I continue to adhere to my position in Kirkaldy v Rim, 478 Mich 581, 586-587; 734 NW2d 201 (2007) (CAVANAGH, J., concurring), as Justice HATHAWAY suggests, allowing a defect within an AOM to be cured under MCL 600.2301 would simply provide an alternative remedy to that of Kirkaldy, in which the majority opined  that the remedy for a successful challenge to a deficient AOM is dismissal without prejudice, id. at 586 (majority opinion). Accordingly, I believe that MCL 600.2301 should apply.

Justice Diane Hathaway also argued that the statute doesn’t require the specificity the majority is requiring.

The Legislature chose not to incorporate any of these phrases heightening the level of specificity in the AOM statute. If the Legislature had chosen to incorporate such qualifying language in MCL 600.2912d(1), then the majority might have a basis for its conclusion. However, MCL 600.2912d(1) is silent concerning the level of specificity with which the information in an AOM must be conveyed. Nothing in the plain language of this statute mandates the heightened level of specificity that the majority demands, and this Court is not free to add words or phrases to a statute. Thus, the requirement that the AOM “shall contain a statement of each of the following” simply means what it says. The statute requires that “a statement” must be made, not a “detailed statement,” “a complete statement,” or a “full explanatory statement.”

One of the other two MSC decisions that are supposed to be out today, Driver v. Cardiovascular Clinic, will also deal with application of Bush v. Shabahang and Burton v. Reed City Hospital. Stay tuned.

Last call for MSC’s 2010-2011 term

Robert P. Young Jr.

Next Sunday is the official end of the Michigan Supreme Court’s 2010-2011 term. According to the court’s public information office, only eight cases on leave are due by that day. The eight, and what’s at stake [Summaries and briefs from Michigan Supreme Court public information office available at links provided]:

People v. Kowalski: This case deals with several issues related to the state’s evidence against a defendant charged with “accosting, enticing, or soliciting a minor for immoral purposes” and using a computer to commit said acts.”

Krohn v. Auto-Owners Insurance Co.: First-party no-fault auto case involving a plaintiff who sought experimental surgery in Portugal. Defendant said it would pay for physical therapy and testing for the surgery, but not the surgery itself because it was experimental. According to the briefs, the surgery greatly improved the plaintiff’s condition.

Previous MILW coverage:Defining what’s reasonable: Plaintiff argues that Portugal procedure was reasonably necessary; insurer says no,” April 4, 2011

Driver v. Cardiovascular Clinic: This case deals with the applicability of Burton v. Reed City Hospital Corp. in light of Bush v. Shabahang. Burton said that a complaint filed before the 180-day post-Notice-of-Intent period expires is nullified, and doesn’t  toll the limitations period. Bush said courts can allow plaintiffs to amend a defective Notice-of-Intent “in the furtherance of justice.”

Previous MILW coverage:Courts struggle with application of Bush,” March 15, 2010

A matter of timing: MSC considers malpractice case stuck in waiting period limbo,” March 21, 2011

People v. Huston: Sentence scoring issue concerning the vulnerability of the victim and whether it was sufficient to increase the defendant’s sentence.

Ligons v. Crittendon Hospital: Plaintiff’s medical malpractice action was dismissed by Court of Appeals, which ruled that the two affidavits of merit served on defendant lacked a “meaningful statement of causation.” Can plaintiff amend the affidavit of merit under Bush v. Shabahang?

Duffy v. Department of Natural Resources: Plaintiff was injured riding an ATV on Little Manistee Trail, which is on state land. Is the trail a highway under the Governmental Tort Liability Act?

Previous MILW coverage:A road by any other name,” March 14, 2011.

Hamed v. Wayne County: Plaintiff was raped by a Wayne Count Sheriff’s deputy while in Wayne County Jail. Is the jail a “public accommodation” under the Michigan Eliott-Larson Civil Rights Act?

Previous MILW coverage:County liable for deputy’s sexual assault on detainee,” July 20, 2009

People v. Bonilla-Machado: OV 13 sentence scoring is at issue here, along with ineffective assistance of counsel.

We’ll provide in-depth coverage and analysis of these opinions and others throughout August at Michigan Lawyers Weekly.

MSC decides not to deal with sidewalk notice to cities after all

In the April 12 issue of Michigan Lawyers Weekly, I previewed oral arguments in Mawri v City of Dearborn, a case which dealt with requirements of a claimant’s notice to a city of an injury caused by a sidewalk defect.

In the case, the plaintiff sent a letter to the city in which he gave the wrong address (using the address next door) and did not describe the defect in the sidewalk.

The court heard arguments on April 13, and were apparently unmoved by Mawri’s case, vacating its order for leave affirming the Court of Appeals’ decision.

Justices Diane M. Hathaway and Chief Justice Marilyn Kelly dissented, citing the court’s 2009 decision in Bush v Shabahang:

The primary purpose of any notice statute is to provide timely notice to a defendant prior to suit. That objective was met in this case. The opinion of the Court of Appeals focuses on form rather than on the meaningful substantive requirements of MCL
691.1404(1). We recently addressed a similar pre-suit notice requirement in Bush v Shabahang, 484 Mich 156 (2009), and held that defects in a statutorily mandated pre-suit notice of intent in medical malpractice cases can be disregarded or cured by amendment under MCL 600.2301 as long as the plaintiff makes a good-faith attempt to comply with the notice provision.

MCL 600.2301 provides:

The court in which any action or proceeding is pending, has power
to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the
proceedings which do not affect the substantial rights of the parties.
[Emphasis added.]

I see no reason why MCL 600.2301 should not apply to the notice requirement in the present case for the same reasons expressed in Bush. Here the plaintiff made a good faith attempt to notify the defendant in a timely manner but the notice contained an ostensible defect. The defendant, however, had actual notice of the defect on a timely basis and accordingly no substantial right of any party was affected. Because § 2301 mandates that the court “shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties,” the Court of Appeals was required to disregard this minor technical defect.

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