VALERIE E SFREDDO V UNIVERSITY OF MICH BD OF REGENTS
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STATE OF MICHIGAN
COURT OF APPEALS
VALERIE E. SFREDDO and JOSEPH
SFREDDO,
UNPUBLISHED
August 19, 2004
Plaintiffs-Appellants,
v
UNIVERSITY OF MICHIGAN REGENTS and
UNIVERSITY OF MICHIGAN HEALTH
SYSTEMS,
No. 249912
Court of Claims
LC No. 02-000179-MH
Defendants-Appellees.
Before: Bandstra, P.J., and Fitzgerald and Hoekstra, JJ.
PER CURIAM.
In this medical malpractice and ordinary negligence action, plaintiffs Valerie E. Sfreddo
and Joseph Sfreddo appeal as of right from the trial court’s orders granting summary disposition
in favor of defendants University of Michigan Regents and University of Michigan Health
Systems on the grounds that the malpractice claims were barred by the statute of limitations and
the ordinary negligence claims also were barred because the alleged negligence arose within the
course of a professional relationship and are therefore subject to the procedural requirements of
medical malpractice claims. We affirm.
This case arises from plaintiff Valerie Sfreddo1 allegations that she sustained injuries
during a magnetic resonance imaging (MRI) procedure conducted at the University of Michigan
Medical Center on March 9, 2000. On May 18, 2000, plaintiffs’ counsel at the time sent a letter
to defendants’ general counsel stating that notice was being given as required under MCL
600.2912b for a claim of professional negligence. On March 5, 2002, approximately twenty-two
months after issuing their first notice and just days before the expiration of the statute of
limitations, plaintiffs’ subsequently retained counsel sent a second letter to defendants that again
stated that notice was being given under MCL 600.2912b for a claim of medical malpractice. On
1
Plaintiff Joseph Sfreddo’s claim is for loss of consortium.
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September 3, 2002,2 plaintiffs filed their complaint for medical malpractice arising out of the
claimed injury occurring during the MRI conducted on March 9, 2002.
Defendants moved for summary disposition under MCR 2.116(C)(7) asserting that
plaintiffs’ action was barred by the two-year statute of limitations for a medical malpractice
action, MCL 600.5805(5).3 The trial court determined that plaintiffs’ initial notice of intent met
the minimum requirements of the notice statute and therefore granted defendants’ motion. In
effect, the trial court’s decision indicated that plaintiffs’ second notice did not toll the running of
the statute of limitations pursuant to MCL 600.5856(d).4 However, the trial court also allowed
plaintiffs time to file an amended complaint to allege ordinary negligence.
After plaintiffs filed an amended complaint, defendants filed a second motion for
summary disposition under MCR 2.116(C)(7) maintaining that the amended complaint also
stated a claim of medical malpractice that was barred by the statute of limitations. The trial court
granted this motion and dismissed the case, determining that the allegations of the amended
complaint raised questions of medical judgment. This appeal ensued.
Both issues raised by plaintiffs in this case challenge the trial court’s decision to grant
summary disposition under MCR 2.116(C)(7). We review a trial court’s grant of summary
disposition de novo. Spiek v Dep’t of Transportation, 456 Mich 331, 337; 572 NW2d 201
(1998). “Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by the
statute of limitations.” Waltz v Wyse, 469 Mich 642, 647; 677 NW2d 813 (2004). In
determining whether the trial court properly granted summary disposition under this subsection,
“[w]e consider all documentary evidence submitted by the parties, accepting as true the contents
of the complaint unless affidavits or other appropriate documents specifically contradict them.”
Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001); MCR 2.116(G)(5).
Plaintiffs first argue that the trial court erred in relying on the May 18, 2000 notice to
determine if the complaint was timely filed instead of holding that it was insufficient and then
concluding that the second notice sent on March 5, 2002, which was shortly before the end of the
two-year period for filing medical malpractice claims, tolled the running of the statute of
limitations under the provisions of MCL 600.5856(d). We disagree.
Under Michigan statutory provisions that govern the tolling of the statute of limitations in
medical malpractice cases, if a notice of intent to sue is given pursuant to MCL 600.2912b and
the interval when a potential plaintiff is not allowed to sue under that statute expires before the
limitation period ends, then the tolling provision of MCL 600.5856(d) is of no consequence.
Omelenchuk v City of Warren, 461 Mich 567, 574; 609 NW2d 177 (2000), clarified and
2
The complaint is dated August 26, 2002.
3
MCL 600.5805(5) was renumbered as MCL 600.5805(6) by 2002 PA 715, effective March 31,
2003.
4
Our Legislature recently amended MCL 600.5856, see 2004 PA 87, effective April 22, 2004,
but that amendment is not applicable here.
-2-
overruled in part on other grds in Wyse, supra at 652-655. Further, if a potential plaintiff issues
more than one notice of intent under MCL 600.2912b, only the first notice can result in the
tolling of the statute of limitations under MCL 600.5856(d), even if the first notice had no tolling
effect. See Ashby v Byrnes, 251 Mich App 537, 544-545; 651 NW2d 922 (2002). Here,
factually, this case is controlled by the above case law; however, plaintiffs take the novel
approach of attacking the sufficiency of their first notice of intent delivered by their first
attorney; thus claiming that the notice of intent prepared by their second attorney is the only
operative notice and it served to toll the running of the statute.
Regardless of the sufficiency of the first notice, we do not believe that plaintiffs can
attack the validity of their own notice for purposes of tolling the statute. The intent of the
statutory scheme, as identified in Ashby, is to allow only the initial notice to result in the tolling
of the statute of limitations. Id. Permitting a plaintiff to attack his own notice frustrates this
intent because a subsequent notice can then become the one that determines whether the statute
of limitations is tolled. Allowing such attacks conceivably might be consistent with the statutory
scheme, but for the fact that a plaintiff has the right to send subsequent notices that read together
can provide proper notice of intent to sue. See MCL 600.2912b(6); cf. Roberts v Mecosta Co
Gen Hosp, 466 Mich 57; 642 NW2d 663 (2002); Ashby, supra. In this case, plaintiffs had many
months in which to send subsequent notices to correct deficiencies, if any, in their original notice
and still timely file their complaint, which they did not do. The trial court properly granted
summary disposition with respect to the notice issue.
Next, plaintiffs maintain that the trial court erred in holding that plaintiffs’ claims of
ordinary negligence were in fact claims of medical malpractice and therefore are banned by the
same statute of limitations as their medical malpractice claims. We disagree.
In the recent case of Bryant v Oakpointe Villa Nursing Centre, __ Mich __; __ NW2d __
(Docket Nos. 121723, 121724, decided July 30, 2004), our Supreme Court articulated a two-part
test for determining whether a claim sounds in medical malpractice or ordinary negligence: A
court must decide “(1) whether the claim pertains to an action that occurred within the course of
a professional relationship; and (2) whether the claim raises questions of medical judgment
beyond the realm of common knowledge and experience.” Id. at slip op p 12. The Bryant Court
explained that “[a] professional relationship sufficient to support a claim of medical malpractice
exists in those cases in which a licensed health care professional, licensed health care facility, or
the agents or employees of a licensed health care facility, were subject to a contractual duty that
required that professional, that facility, or the agents or employees of that facility, to render
professional health care services to the plaintiff.” Id. at slip op pp 12-13. The next step, the
Bryant Court explained,
is determining whether the claim raises questions of medical judgment requiring
expert testimony or, on the other hand, whether it alleges facts within the realm of
a jury’s common knowledge and experience. If the reasonableness of the health
care professionals’ action can be evaluated by lay jurors, on the basis of their
common knowledge and experience, it is ordinary negligence. If, on the other
hand, the reasonableness of the action can be evaluated by a jury only after having
been presented the standards of care pertaining to the medical issue before the
jury explained by experts, a medical malpractice claim is involved. [Id. at slip op
pp 13-14.]
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In the present case, plaintiff Valerie Sfreddo’s alleged injuries indisputably arose within
the course of a professional relationship. At a medical facility, she underwent an MRI procedure
performed by a radiology technician in the radiology department during a physician-ordered
diagnostic test. Further, we conclude that the MRI procedure involved questions of medical
judgment requiring expert testimony. Although plaintiffs argue that the issue in this case
involves the ordinary use of the MRI’s intercom to respond to plaintiff Valerie Sfreddo’s urgent
request to be removed from the machine, we find that the decision whether to interrupt the
procedure and remove a patient, and the extent and the means by which the technician
conducting the procedure should maintain communication with the patient, are questions of
medical judgment that require expert testimony.
Affirmed.
/s/ Richard A. Bandstra
/s/ Joel P. Hoekstra
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