MARVA TOUSEY V GERARD BRENNAN MD
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STATE OF MICHIGAN
COURT OF APPEALS
MARVA TOUSEY, Personal Representative of the
Estate of GORDON TOUSEY, Deceased,
FOR PUBLICATION
May 15, 2007
9:20 a.m.
Plaintiff-Appellant,
v
GERARD BRENNAN, M.D. and NORTHSIDE
IMMEDIATE CARE CENTER,
Defendants-Appellees.
No. 274086
Muskegon Circuit Court
LC No. 05-043815-NH
Official Reported Version
Before: Hoekstra, P.J., and Fitzgerald and Owens, JJ.
PER CURIAM.
In this wrongful death action alleging medical malpractice, plaintiff appeals as of right
the trial court's order granting summary disposition in favor of defendants Gerard Brennan,
M.D., and Northside Immediate Care Center (NICC). We reverse.
I. Basic Facts and Procedural History
This case arises from the death of plaintiff 's husband, Gordon Tousey, who, it is not
disputed, suffered a fatal myocardial infarction just two days after being seen by Dr. Brennan for
chest pains. Before filing suit, plaintiff served defendants with notice of her intent to file a
medical malpractice claim, as required by MCL 600.2912b. In her notice, plaintiff asserted that
Dr. Brennan had breached the applicable standard of care by failing to immediately (1)
hospitalize Tousey and secure both a coronary angiogram and cardiology consultation, (2) begin
aspirin and heparin therapy and the use of beta blockers, and (3) send a sample of Tousey's blood
for laboratory testing. With her subsequently filed complaint, plaintiff also filed three affidavits
of merit, two of which were authenticated by out-of-state notaries public.
Defendants sought summary disposition of plaintiff 's suit on the ground that plaintiff 's
notice of intent failed to adequately set forth the "manner" in which any alleged breach of the
standard of care was a proximate cause of Tousey's death, as required by MCL 600.2912b(4)(e).
Defendants additionally argued that each of the three affidavits of merit filed by plaintiff should
be struck. Specifically, defendants argued that the affidavits authenticated by the out-of-state
notaries failed to also contain the special certification mandated by MCL 600.2102(4) and this
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Court's holding in Apsey v Mem Hosp (On Reconsideration), 266 Mich App 666; 702 NW2d 870
(2005). Thus, defendants argued, the out-of-state affidavits could not be received and considered
by the court. Defendants further argued that the in-state affidavit, like plaintiff 's notice of intent,
failed to specify the manner in which any alleged violation of the applicable standard of care
proximately cause Tousey's death. See MCL 600.2912d(1)(d).
Although rejecting defendants' claim that the in-state affidavit failed to set forth
proximate cause, the trial court agreed that the out-of-state affidavits did not comply with the
requirements of MCL 600.2102(4) and the holding in Apsey. Thus, the court struck the out-ofstate affidavits.
Relying on Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679; 684 NW2d
711 (2004), the trial court also agreed that plaintiff 's notice of intent was deficient:
In applying the Roberts standards to the case at bar, the court finds that
plaintiff 's notice of intent does not in any way state how the breach of the
standard of care caused the decedent's heart attack, or how the actions that should
have been taken to achieve compliance with the standard of practice or care could
have prevented or reduced the likelihood of Mr. Tousey's fatal heart attack. . . . In
sum, the language as to proximate cause in the notice of intent conveys only this
meaning: The breaches of the standard of care are the proximate cause of Gordon
Tousey's heart attack. There is nothing in the language which suggests how those
breaches of the standard of care were the proximate cause of Gordon Tousey's
heart attack, as required by Roberts, supra.
After concluding that plaintiff 's failure to comply with MCL 600.2912b(4)(e) required that her
notice of intent be struck, the trial court dismissed plaintiff 's suit with prejudice on the ground
that the period of limitations for plaintiff 's medical malpractice claim had expired.
II. Analysis
This Court reviews de novo as a question of law a trial court's decision regarding a
motion for summary disposition. Gulley-Reaves v Baciewicz, 260 Mich App 478, 484; 679
NW2d 98 (2004). Statutory interpretation likewise presents a question of law, calling for review
de novo. Id.
A. Notice of Intent
A medical malpractice claimant is required, among other prerequisites to commencing
suit, to provide a health facility or practitioner with a written notice of intent setting forth several
statutorily enumerated statements about the intended suit. MCL 600.2912b; see also Roberts,
supra at 685-686. A claimant is not required to ensure that such statements are correct, but the
claimant must make a good-faith effort to set forth the required information "with that degree of
specificity which will put the potential defendants on notice as to the nature of the claim against
them." Roberts, supra at 701. The expected level of specificity must be considered in light of
the fact that discovery would not yet have begun. Id. at 691. The details need only "allow the
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potential defendants to understand the claimed basis of the impending malpractice action . . . ."
Roberts, supra at 692 n 7.
Plaintiff argues that her notice of intent satisfied these requirements and that the trial
court therefore erred in finding the notice deficient and dismissing her suit. We agree.
Among the information required by MCL 600.2912b to be stated by the claimant in the
notice of intent is "[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). With
regard to this, plaintiff 's notice of intent stated, in relevant part, that "[d]ue to the negligence
and/or breaches of the . . . standard of care or practice by Dr. Gerard Brennan, Gordon Tousey
suffered a life ending myocardial infarction." The trial court found this "declarative statement"
to be insufficient to comply with MCL 600.2912b(4)(e). However, guided by Roberts, this Court
recently held that in determining whether a plaintiff has satisfied the requirements of MCL
600.2912b, the question is "whether the notice contains the required information, not whether
any specific portion of the notice does." Boodt v Borgess Med Ctr, 272 Mich App 621, 628; 728
NW2d 471 (2006) (emphasis in original).
In Boodt, supra at 624, the plaintiff 's decedent died after the defendant doctor, Michael
Lauer, M.D., perforated the decedent's coronary artery during an angioplasty, causing massive
bleeding. After the plaintiff filed suit, Dr. Lauer and the defendant hospital at which the
procedure was performed sought dismissal on the ground that the plaintiff 's notice of intent
failed to comply with the requirements of MCL 600.2912b. Id. In concluding that the plaintiff 's
statement that, "'[i]f the standard of care had been followed, [the plaintiff 's decedent] would not
have died'" sufficiently complied with the requirements of MCL 600.2912b(4)(e) with respect to
Dr. Lauer, the panel explained:
This perfunctory statement, taken by itself, would be insufficient to
explain how defendant's alleged violations of the standard of care resulted in the
death, as required by MCL 600.2912b(4)(e). However, it must be viewed in the
context of the entire document, the facts underlying the case, and the proper
pleading standard. The notice of intent, as a whole, reveals that Dr. Lauer was
conducting a procedure on a major blood vessel that involved inserting a wire into
that vessel, and that during the procedure Dr. Lauer perforated the blood vessel.
Dr. Lauer then failed to take steps that might have permitted him or a surgeon to
repair the vessel, such as stopping the administration of an anticoagulant,
performing a pericardiocentesis, notifying a surgeon, and maintaining access to
the blood vessel. [Id. at 631-632.]
Recognizing that "the purpose of the notice of intent is to give notice of a claim against
the specified parties," and that the notice therefore need only be specific enough so that
defendants are not forced to "'guess upon what grounds plaintiff believes recovery is justified,'"
the panel noted that there was "no real guesswork involved in coming to the conclusion that Dr.
Lauer poked a hole in an artery, causing massive bleeding that was not stopped in time to prevent
the decedent's death." Id. at 627, 632 (citation omitted). Thus, the panel concluded, the
plaintiff 's notice met the requirements of MCL 600.2912b(4)(e). Id. at 632-633.
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When viewed as a whole and in conjunction with the underlying facts, the notice of intent
at issue here similarly involves "no real guesswork" regarding the grounds upon which "'plaintiff
believes recovery [to be] justified.'" Id. at 627, 632 (citation omitted). The notice indicates that
Tousey was seen by Dr. Brennan at NICC1 for chest pain on July 9, 2001. After drawing blood
and performing an electrocardiogram that showed "changes" from the time Tousey underwent an
angioplasty in 1997, Dr. Brennan indicated to Tousey that he may have suffered a minor heart
attack. After then informing Tousey that an appointment with a cardiologist would be scheduled,
Dr. Brennan sent Tousey home. The following day, Dr. Brennan's office informed Tousey that a
cardiology appointment had been scheduled for the morning of July 13, 2001. However, on July
11, 2001, Tousey's family found him unconscious in the bathroom of his home, and he died later
that day at a local hospital.
This information, when viewed in combination with the statement that Dr. Brennan
breached the applicable standard of care by failing to immediately hospitalize Tousey and secure
both a coronary angiogram and a cardiology consultation, begin aspirin and heparin therapy and
the use of beta blockers, and send Tousey's blood for laboratory testing, fulfills the purpose of
MCL 600.2912b by informing defendants of plaintiff 's belief that Dr. Brennan's failure to do
these things resulted in Tousey's fatal heart attack. Accordingly, we reverse the trial court's order
granting summary disposition in favor of defendants on that ground.
B. Out-of-State Affidavits of Merit
Plaintiff also challenges the trial court's ruling that the out-of-state affidavits submitted
by her must be struck for failure to comply with the requirements of MCL 600.2102(4) and this
Court's holding in Apsey. Although the trial court correctly relied on Apsey in striking the
affidavits, our Supreme Court has since reversed that decision. See Apsey v Mem Hosp, 477
Mich 120; 730 NW2d 695 (2007) (holding that the special-certification provisions of MCL
600.2102[4] are merely alternative means of authenticating out-of-state affidavits). Accordingly,
we reverse the trial court's order striking plaintiff 's out-of-state affidavits for failure to comply
with MCL 600.2102(4).
Reversed.
/s/ Joel P. Hoekstra
/s/ E. Thomas Fitzgerald
/s/ Donald S. Owens
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Although not raised by defendants below or on appeal, we note that plaintiff failed in her notice
of intent to assert any breach by NICC of an applicable standard of care, let alone the manner in
which any such breach proximately caused Tousey's injury.
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