LITITIA BOND V ADAM COOPER
Annotate this Case
Download PDF
STATE OF MICHIGAN
COURT OF APPEALS
LITITIA BOND, Personal Representative of the
Estate of NORMA JEAN BLOCKER, Deceased,
Plaintiff-Appellant,
UNPUBLISHED
May 22, 2008
ON RECONSIDERATION
and
BLUE CROSS BLUE SHIELD OF MICHIGAN,
Intervening Plaintiff,
v
ADAM COOPER, M.D., KRISTEN MCDANIEL,
D.O., and BOTSFORD GENERAL HOSPITAL,
No. 273315
Oakland Circuit Court
LC No. 2005-066794-NH
Defendants-Appellees.
Before: Meter, P.J., and Kelly and Fort Hood, JJ
PER CURIAM.
Plaintiff appeals as of right from a circuit court order granting defendants’ motion for
summary disposition pursuant to MCR 2.116(C)(7) in this medical malpractice action. We
vacate and remand for proceedings consistent with this opinion.
The trial court determined that plaintiff’s notice of intent to file suit (NOI) failed to
adequately 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.” MCL 600.2912b(4)(e). The trial
court did not address defendants’ additional argument that plaintiff’s affidavit of merit was also
deficient.
The issues involve matters of statutory interpretation, which are reviewed de novo. This
Court also reviews the trial court’s grant of summary disposition de novo. Roberts v Mecosta Co
Gen Hosp (After Remand), 470 Mich 679, 685; 684 NW2d 711 (2004).
We agree with plaintiff that, contrary to the approach of defendants and the trial court, an
analysis of the adequacy of the NOI requires review of the NOI as a whole, not section by
section. In Boodt v Borgess Medical Ctr, 272 Mich App 621, 626-627, 638; 728 NW2d 471
(2006), the majority agreed that “MCL 600.2912b requires that the information for the categories
-1-
be present in some readily decipherable form, not that it ‘be in any particular format.’” Id., p
628, quoting Roberts, supra, p 696. Separating the information into specially labeled paragraphs
may be helpful, but “it is by no means necessary as long as the required information can actually
be found somewhere in the document without difficulty.” Boodt, supra, p 628. In this case, in
analyzing whether the NOI complied with MCL 600.2912b(4)(e), the trial court unduly limited
its review to the paragraph labeled, “The Manner in Which the Breach was a Proximate Cause of
the Claimed Injury.”
We need not determine whether the NOI, when examined as a whole, was adequate to put
defendants on notice of “‘the nature of the claim against them,’” and provided sufficient details
to allow them “‘to understand the claimed basis of the impending malpractice action.’” Boodt,
supra, p 621, quoting Roberts, supra, p 692 n 7, 701, because we conclude that dismissal without
prejudice is the appropriate remedy in light of the deficiencies in plaintiff’s affidavit of merit.1
Pursuant to MCL 600.2912d(1)(d), the affidavit “shall contain a statement of each of the
following . . . [t]he manner in which the breach of the standard of practice or care was the
proximate cause of the injury alleged in the notice.”
The affidavit of merit that accompanied plaintiff’s complaint stated that defendant
doctors “when presented with a patient exhibiting the signs and symptoms such as those
demonstrated by Norma Jean Blocker, owe a duty to timely and properly”:
a.
Perform a thorough and complete examination at regular and
proper intervals;
b.
Obtain and thorough and complete medical history at regular and
proper intervals;
c.
Avoid unnecessary surgical procedure, i.e., TAH and BSO;
d.
Implement conservative treatment including but not limited to,
further observation and/or Lupon therapy;
e.
Avoid injury to the bowel by excessive traction or packing;
f.
abdomen;
Adequately observe the abdominal contents prior to closure of the
g.
obstruction;
Recognize the signs and symptoms of and [sic] ileus or bowel
1
Even if defendants asserted that the NOI was nonetheless deficient when examined as a whole
in light of Boodt, supra, the trial court’s remedy for a deficient notice of intent is also dismissal
without prejudice. Potter v Murry (On Remand), ___ Mich App ___; ___ NW2d ___ (2008)
(Docket No. 262529, issued March 20, 2008), slip op pp 4-5.
-2-
h.
Perform appropriate diagnostic testing to rule in or rule out an ileus
or bowel obstruction including, but not limited to, an MRI, CT scan, lower GI
series or abdominal x-rays;
i.
Consult with the appropriate specialists including, but not limited
to, an Infectious Disease Specialist, General Surgeon and/or Gastroenterologist;
j.
obstruction;
Timely and properly diagnose and treat an ileus or bowel
k.
Recognize the need for prolonged in-patient hospitalization,
continued encourage ambulation and the need for positive bowel movement; and
l.
discovery.
Any and all acts of negligence identified through the course of
With respect to defendant hospital, the affidavit of merit repeated these assertions and added:
a.
Select, employ, train and monitor its employees, servant, agents,
ostensible agents and/or its staff of physicians, nurses, nurses’ aides, technicians
and residents, to insure they were competent to perform adequate medical care;
b.
Ensure that appropriate policies and procedures are adopted and
followed including, but not limited to, pursuing patient advocacy by following the
chain of command where indicated.
The remainder of the affidavit of merit states, in its entirety:
5. It is my opinion that the acts or omissions listed above constitute
violations of the applicable standard of care.
6. In order to have conformed with the standard of care, the above named
should have done those things listed in paragraph 3 above.
7. Within a reasonable degree of medical certainty, the violations of the
standard of care are a proximate cause of the damages claimed by the Plaintiff.
8. Within a reasonable degree of medical certainty, the damages claimed
by the Plaintiff could not have happened without the occurrence of negligence.
9. This opinion is based upon a review of the information to date and may
or may not change upon review of additional materials.
The deficiency of this affidavit of merit is apparent. Simply stating that violations of the
standard of care “are a proximate cause of the damages” does not fulfill the statutory requirement
that the affidavit state the “manner in which the breach of the standard of practice or care was the
proximate cause of the injury alleged in the notice.” MCL 600.2912d(1)(d). The deficiency is
not remedied by an examination of the affidavit as a whole. The affidavit of merit simply sets
forth contentions regarding the duties owed; it does not identify any breach or “violations” of the
-3-
standard of care. Inasmuch as the affidavit does not identify any breaches of the standard of
care, it is also deficient in explaining the manner in which they caused an injury to the decedent.
Although we conclude that the affidavit of merit was deficient, the “complaint and
affidavit of merit toll the period of limitations until the validity of the affidavit is successfully
challenged in ‘subsequent judicial proceedings.’” Kirkaldy v Rim, 478 Mich 581, 586; 734
NW2d 201 (2007). Therefore, once it is concluded that the affidavit of merit is invalid, the
period of limitations commences again provided there is time remaining. Id. Thus, the remedy
for a successful challenge to the affidavit of merit is dismissal without prejudice. Id. If time
remains, the plaintiff may file a new complaint with conforming affidavits of merit. Potter v
Murry (On Remand), ___ Mich App ___; ___ NW2d ___ (2008) (Docket No. 262529, issued
March 20, 2008), slip op p 3. Accordingly, we vacate the trial court’s order granting summary
disposition with prejudice and remand in light of Kirkaldy, supra, and Potter, supra.
Vacated and remanded for proceedings consistent with this opinion. We do not retain
jurisdiction.
/s/ Patrick M. Meter
/s/ Kirsten Frank Kelly
/s/ Karen M. Fort Hood
-4-
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.
