LISA ROBERTS V MECOSTA COUNTY GENERAL HOSPITAL
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
LISA ROBERTS,
FOR PUBLICATION
August 27, 2002
9:15 a.m.
Plaintiff-Appellant,
v
MECOSTA COUNTY GENERAL HOSPITAL,
GAIL A. DESNOYERS, M.D., BARB DAVIS,
OBSTETRICS & GYNECOLOGY, f/k/a
GUNTHER DESNOYERS & MEKAR, and
MICHAEL ATKINS, M.D.,
Defendants-Appellees.
No. 212675
Mecosta Circuit Court
LC No. 97-012006-NH
ON REMAND
Updated Copy
November 8, 2002
Before: Sawyer, P.J., and O'Connell and Smolenski, JJ.
SAWYER, P.J.
In our original opinion, this Court held that defendants had waived their challenge to the
adequacy of plaintiff 's notices of intent to bring this medical malpractice case by waiting until
after the complaint was filed. Roberts v Mecosta Co General Hosp, 240 Mich App 175, 185186; 610 NW2d 285 (2000). Thereafter, the Supreme Court reversed, holding that the statute
imposes no obligation on defendants to object to the notice of intent before the complaint is filed.
Roberts v Mecosta Co General Hosp, 466 Mich 57, 66; 642 NW2d 663 (2002). The matter is
now on remand to this Court for consideration of issues not decided in the original appeal.
Plaintiff argues that the notices of intent filed in this case were, in fact, adequate and, in
the alternative, even if they did not strictly comply with the statute, the notices substantially
complied with the statute and substantial compliance is sufficient. We need not address the
substantial compliance argument because we are persuaded that the notices did, in fact, strictly
comply with the statute.
As the Supreme Court reminded us in this case, id. at 63, if statutory language is clear
and unambiguous, we are to enforce the statute as written, not read additional requirements into
the statute:
An anchoring rule of jurisprudence, and the foremost rule of statutory
construction, is that courts are to effect the intent of the Legislature. People v
Wager, 460 Mich 118, 123, n 7; 594 NW2d 487 (1999). To do so, we begin with
-1-
an examination of the language of the statute. Wickens v Oakwood Healthcare
System, 465 Mich 53, 60; 631 NW2d 686 (2001). If the statute's language is clear
and unambiguous, then we assume that the Legislature intended its plain meaning
and the statute is enforced as written. People v Stone, 463 Mich 558, 562; 621
NW2d 702 (2001). A necessary corollary of these principles is that a court may
read nothing into an unambiguous statute that is not within the manifest intent of
the Legislature as derived from the words of the statute itself. Omne Financial,
Inc v Shacks, Inc, 460 Mich 305, 311; 596 NW2d 591 (1999).
Thus, our consideration of the question whether plaintiff 's notices of intent were
adequate must begin with the language of the statute and the requirements it creates. The statute
at issue here, MCL 600.2912b(4), provides as follows:
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.
We find the statute to be clear and unambiguous, requiring that the notice of intent must, at a
minimum, "contain a statement" of the six enumerated items. See Roberts, supra, 466 Mich 6566.
In the case at bar, plaintiff sent two notices of intent, one on September 19, 1996, to
defendant hospital, and one on September 23, 1996, to the remaining defendants. We will look
at each statutory item and compare it to the notices to determine if the notices were adequate.
(a) The factual basis for the claim.
The September 19 notice 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
-2-
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 any children.
The September 23 notice 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 approximately ten years ago and, as
a result of the negligence set forth above, she is now unable to have any children.
The statute provides that the notice "shall contain a statement of" the "factual basis for the
claim." Obviously, the notices involved here contain such a statement.
(b) The applicable standard of practice or care alleged by the claimant.
The September 19 notice alleged the following standard of care:
-3-
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.
Defendants argue that this statement of the standard of care is inadequate. However,
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. We are reluctant to declare
plaintiff 's stated standard of care inaccurate without being able to identify what is the proper
standard of care.
In any event, we do not believe the question whether plaintiff accurately stated the
standard of care is of any moment to this case. The clear and unambiguous language of the
statute requires that plaintiff 's notice "contain a statement of" the "applicable standard of practice
or care alleged by the claimant." The notices in this case do, in fact, contain a statement of what
plaintiff alleges to be the standard of practice or care. The 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 plaintiff is incorrect in stating the standard of care. Indeed, the statute would
seem to anticipate a disagreement over the standard or care because MCL 600.2912b(7), which
covers the defendant's response to a notice of intent, includes a provision for the defendant to set
forth what it believes is the applicable standard of care or practice.
To establish a requirement that the notice of intent must accurately state the standard of
practice or care would read into the statute a requirement that the statute does not create. As the
Supreme Court observed in Roberts, supra, 466 Mich 66:
Further, nowhere does the statute provide that a defendant must object to
any deficiencies in a notice of intent before the complaint is filed. In the absence
of such a statutory requirement, we do not have the authority to create and impose
an extrastatutory affirmative duty on the defendant. Omne Financial, supra. The
role of the judiciary is not to engage in legislation. Tyler v Livonia Sachs, 459
Mich 382, 392-393, n 10; 590 NW2d 560 (1999). The Legislature did not require
that an objection to a notice of intent must be raised before a certain stage of the
litigation.
-4-
With respect to the statement of the standard of practice or care, nothing in the statute requires
that the statement be correct or otherwise imposes a penalty if the statement is incorrect. Rather,
the clear directive of the statute is for the plaintiff to include in the notice what the plaintiff
alleges the standard to be. If the Legislature had intended to require the statement of the
standard of care to be accurate, it would have omitted the phrase "alleged by the claimant" from
MCL 600.2912b(4)(b).
Simply put, plaintiff complied with the requirements of the statute that she include a
statement of the alleged standard of practice or care. To require more would necessitate that we
improperly engage in legislation and impose an extrastatutory affirmative duty on plaintiff. See
Roberts, supra, 466 Mich 66.
(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.
The September 19 notice refers to paragraph two of the notice, while 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."
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.1
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.
Accordingly, we conclude that this statutory requirement was met.
(d) The alleged action that should have been taken to achieve compliance with the alleged
standard of practice or care.
Both notices refer to paragraph two of the respective notices. Again, we look to the
statements in paragraph one of each notice to provide additional information. 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. Thus, this requirement was met.
(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.
1
The references to the respective paragraphs two would set out that the individual defendants
failed to retain and provide competent medical personnel to attend to plaintiff.
-5-
Once again, both notices refer to their respective paragraph two. And also once again,
the more detailed statements of the factual basis for the claim provides the necessary
information. Specifically, 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.
(f) The names of all health professionals and health facilities the claimant is notifying under this
section in relation to the claim.
The September 19 notice lists "Mecosta County General Hospital and all agents and
employees, actual or ostensible, thereof," while the September 23 notice lists "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." Thus, all the defendants are listed in the
two notices.
In sum, while the notices of intent in this case may not represent the picture of clarity and
certainly do not represent the "perfect notice," they do comply with the statute. To declare them
inadequate would require that we read into the statute requirements that simply do not exist.
Accordingly, we conclude that the trial court erred in determining that the notices were
inadequate and in dismissing the case on the basis of that determination.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction. Plaintiff may tax costs.
/s/ David H. Sawyer
/s/ Peter D. O'Connell
/s/ Michael R. Smolenski
-6-
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.