GARY L BUSH V BEHROOZ-BRUCE SHABAHANG MD
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STATE OF MICHIGAN
COURT OF APPEALS
GARY L. BUSH, Guardian of GARY E. BUSH, a
Protected Person,
FOR PUBLICATION
May 1, 2008
9:00 a.m.
Plaintiff-Appellee,
v
No. 274708
Kent Circuit Court
LC No. 06-000982-NM
BEHROOZ-BRUCE SHABAHANG, M.D.,
Defendant-Appellant,
Advance Sheets Version
and
JOHN CHARLES HEISER, M.D., WEST
MICHIGAN CARDIOVASCULAR SURGEONS,
GEORGE T. SUGIYAMA, M.D., M. ASHRAF
MANSOUR, M.D., VASCULAR ASSOCIATES,
P.C., and SPECTRUM HEALTH
BUTTERWORTH CAMPUS,
Defendants.
GARY L. BUSH, Guardian of GARY E. BUSH, a
Protected Person,
Plaintiff-Appellee,
v
BEHROOZ-BRUCE SHABAHANG, M.D.,
GEORGE T. SUGIYAMA, M.D., M. ASHRAF
MANSOUR, M.D., VASCULAR ASSOCIATES,
P.C., and SPECTRUM HEALTH
BUTTERWORTH CAMPUS,,
Defendants,
and
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No. 274709
Kent Circuit Court
LC No. 06-000982-NM
JOHN CHARLES HEISER, M.D., WEST
MICHIGAN CARDIOVASCULAR SURGEONS,
Defendants-Appellants.
GARY L. BUSH, Guardian of GARY E. BUSH, a
Protected Person,
Plaintiff-Appellee,
v
BEHROOZ-BRUCE SHABAHANG, M.D., JOHN
CHARLES HEISER, M.D., WEST MICHIGAN
CARDIOVASCULAR SURGEONS, GEORGE T.
SUGIYAMA, M.D., M. ASHRAF MANSOUR,
M.D., VASCULAR ASSOCIATES, P.C.,
No. 274726
Kent Circuit Court
LC No. 06-000982-NM
Defendants,
and
SPECTRUM HEALTH BUTTERWORTH
CAMPUS,
Defendant-Appellant.
Before: Fitzgerald, P.J., and Smolenski and Beckering, JJ.
SMOLENSKI, J.
In this medical-malpractice case, defendant Behrooz-Bruce Shabahang, M.D., appeals by
leave granted the trial court’s April 28, 2006, order denying his motion for summary disposition
that was based on the grounds that plaintiff’s notice of intent to sue was deficient and that
plaintiff prematurely filed suit. Defendants John Charles Heiser, M.D., and West Michigan
Cardiovascular Surgeons (WM Cardiovascular), and, in a separate appeal, defendant Spectrum
Health Butterworth Campus also appeal by leave granted the trial court’s April 28, 2006, order
denying their motions for summary disposition that were based on the ground that plaintiff’s
notice was deficient.1 The appeals were consolidated. Because we conclude that plaintiff’s
1
This Court originally denied defendants’ requests for leave to appeal. See Bush v BehroozBruce Shabahang, MD, unpublished order of the Court of Appeals, entered August 4, 2006
(continued…)
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notice did not meet the minimum requirements of MCL 600.2912b(4) with respect to the
imposition of direct liability against WM Cardiovascular and for the nursing and physician
assistants of Spectrum Health, we reverse in part the decision of the trial court. However,
because defendants have failed to demonstrate that the notice was otherwise deficient and
plaintiff did not prematurely file suit in contravention of MCL 600.2912b, we affirm the trial
court’s denial of summary disposition in all other respects.
I. Facts and Procedural History
On August 7, 2003, Gary E. Bush (Bush), who was 33 at the time, had surgery to repair
an aortic aneurysm at Spectrum Health’s Butterworth Campus. Shabahang and Heiser, who are
surgeons employed by WM Cardiovascular, performed the surgery. Plaintiff, Bush’s guardian,
claims that when Shabahang cut open Bush’s chest, he lacerated the aneurysm, which made it
necessary for Heiser to cannulate Bush’s femoral artery and femoral vein so that Bush could be
placed on a heart-bypass machine before the surgery could proceed. Defendants George T.
Sugiyama, M.D., and M. Ashraf Mansour, M.D., who are vascular surgeons with defendant
Vascular Associates, P.C., repaired Bush’s femoral artery and femoral vein, respectively.
According to plaintiff, the injuries Bush suffered during the surgery and during his recovery
rendered him unable to lead an independent life.
On August 5, 2005, which was just days before the expiration of the applicable period of
limitations, plaintiff served a notice of intent to file a medical-malpractice complaint against
Shabahang, Heiser, Sugiyama, Mansour, WM Cardiovascular, Vascular Associates, and
Spectrum Health. Sugiyama, Mansour, Vascular Associates, and Shabahang responded to
plaintiff’s notice as required by MCL 600.2912b(7). On January 27, 2006, which was 175 days
after plaintiff served notice on defendants, plaintiff filed his complaint against all defendants.
Shortly thereafter, Sugiyama, Mansour, and Vascular Associates moved for summary
disposition under MCR 2.116(C)(7), (8), and (10). They argued that dismissal was appropriate
on two grounds: (1) plaintiff failed to file a notice that complied with the requirements of MCL
600.2912b, and (2) plaintiff failed to wait the required 182 days before filing his complaint.
Shabahang, Heiser, and WM Cardiovascular joined the motion. Spectrum Health later filed its
own motion for summary disposition based solely on the alleged deficiency of the notice.
In response to these motions, plaintiff argued that the notice met the minimum statutory
requirements. Plaintiff responded to the allegations that the complaint was prematurely filed by
(…continued)
(Docket No. 270433); Bush v Behrooz-Bruce Shabahang, MD, unpublished order of the Court of
Appeals, entered August 4, 2006 (Docket No. 270437); Bush v Behrooz-Bruce Shabahang, MD,
unpublished order of the Court of Appeals, entered August 4, 2006 (Docket No. 270897).
However, in lieu of granting leave to appeal, our Supreme Court remanded these appeals for
consideration as if on leave granted. See Bush v Heiser, 477 Mich 934 (2006); Bush v
Shabahang, 477 Mich 934 (2006); Bush v Spectrum Health Butterworth Campus, 477 Mich 935
(2006). On remand from our Supreme Court, the appeals were assigned new docket numbers
and were consolidated. See Bush v Behrooz-Bruce Shabahang, MD, unpublished order of the
Court of Appeals, entered December 21, 2006 (Docket Nos. 274708, 274709, and 274726).
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arguing that the responses to the notice were deficient. Because defendants’ responses to the
notice were deficient, plaintiff contended that he could properly file his complaint after 154 days
from the date of service of the notice. Hence, plaintiff concluded, his complaint was not
prematurely filed.
The trial court determined that the notice was insufficient with regard to Sugiyama,
Mansour, and Vascular Associates. On the basis of that conclusion, the trial court granted
summary disposition in favor of Sugiyama, Mansour, and Vascular Associates.2 The trial court
also granted summary disposition in favor of Spectrum Health, but only to the extent that its
alleged liability was based on the actions of Sugiyama and Mansour. The trial court also granted
summary disposition in favor of Spectrum Health with regard to the claims of negligence on the
part of Spectrum Health’s physician assistants because plaintiff failed to file a conforming
affidavit of merit. However, “[a]s to the other doctors and defendants . . . the Court’s of the
opinion that the [notice] is clearly sufficient, so those motions are denied.” The trial court also
determined that plaintiff’s complaint was not prematurely filed.
The trial court entered an order reflecting its decision on April 28, 2006.
These appeals followed.
II. Sufficiency of the Notice
We shall first address defendants’ various arguments that plaintiff’s notice of intent to
sue failed to satisfy the requirements of MCL 600.2912b(4).3
A. Standard of Review
This Court reviews de novo a trial court’s decision on a motion for summary disposition.
Boodt v Borgess Med Ctr, 272 Mich App 621, 624-625; 728 NW2d 471 (2006). This issue also
involves questions of statutory interpretation, which this Court reviews de novo. Tousey v
Brennan, 275 Mich App 535, 538; 739 NW2d 128 (2007).
B. Notice Requirements of MCL 600.2912b
Before commencing an action alleging medical malpractice against a health professional
or health facility, a medical-malpractice claimant must provide each health professional and
health facility written notice of intent to file a claim. MCL 600.2912b(1); see also Roberts v
Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 685; 684 NW2d 711 (2004). The notice
must include several statutorily enumerated statements about the intended suit. See MCL
2
The trial court’s dismissal of these defendants is not at issue in the present appeals.
3
On January 23, 2006, plaintiff served defendants with an amended notice. However, in an
order entered on April 28, 2006, the trial court voided this amended notice. Because plaintiff has
not challenged this order on appeal, we shall only consider the sufficiency of the August 5, 2005,
notice.
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600.2912b(4). Dismissal is an appropriate remedy for noncompliance with the notice provisions
of MCL 600.2912b. Burton v Reed City Hosp Corp, 471 Mich 745, 753; 691 NW2d 424 (2005).
However, a notice is presumed valid until successfully challenged. Potter v McCleary (On
Remand), 278 Mich App 279, 286; 748 NW2d 599 (2008). Hence, even a deficient notice will
toll the period of limitations during the notice period under MCL 600.5856(c). Potter, supra at
286. And, if the notice is successfully challenged, the remedy is dismissal without prejudice so
that the plaintiff may have the opportunity to cure the deficiency within the unexpired portion of
the period of limitations. Id.
Although the notice must include each of the statements enumerated under MCL
600.2912b(4), the claimant is not required to ensure that the statements are correct. Boodt, supra
at 626. Rather, the claimant need only make “a good-faith effort to ‘set forth [the information]
with that degree of specificity which will put the potential defendants on notice as to the nature
of the claim against them.’“ Id., quoting Roberts, supra at 701. For that reason, the notice need
only meet the level of specificity generally required of a medical-malpractice complaint. Boodt,
supra at 626-627. Further, MCL 600.2912b does not require a particular format for the
statements in the notice; they need only be present in some “readily decipherable form . . . .”
Boodt, supra at 628. Hence, the relevant question is not “whether any specific portion of the
notice” contains the required information, but whether the notice—when read as a whole—
contains the required information. Id.
C. Standard-of-Care-Statements
WM Cardiovascular, Heiser4 and Shabahang5 argue that plaintiff’s notice failed to
include a proper statement of the specific standard of care applicable to each of them. We
disagree.
Under MCL 600.2912b(4)(b), plaintiff’s notice had to include a statement of the standard
of care. The alleged standard must be particularized for each of the professionals and facilities
named in the notices. Roberts, supra at 694.
4
We note that, in their brief on appeal, WM Cardiovascular and Heiser also allege that plaintiff’s
notice did not properly include statements regarding what WM Cardiovascular and Heiser should
have done to comply with the applicable standard of care. Although this argument was only
given cursory treatment on appeal, we have examined the issue and conclude that plaintiff’s
notice was not deficient in this regard.
5
Shabahang argues generally that the notice was entirely deficient, but on appeal only directly
addresses plaintiff’s purported failure to give notice of the applicable standard of care. By
failing to adequately brief any other claims of error with regard to the sufficiency of plaintiff’s
notice, Shabahang abandoned those claims. See Hamade v Sunoco, Inc (R&M), 271 Mich App
145, 173; 721 NW2d 233 (2006). Therefore, we shall limit our analysis accordingly.
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1. West Michigan Cardiovascular Surgeons
Plaintiff’s notice does not adequately address the standard of care applicable to WM
Cardiovascular under a direct theory of liability for failure to properly train or hire. The notice
merely provides that WM Cardiovascular should have hired competent staff members and
properly trained them. But the notice identifies no relevant standard for determining competency
or properly training staff persons. Nor can the standard be gleaned from the other sections of the
notice: plaintiff failed to state how WM Cardiovascular’s hiring and training practices violated
that standard, failed to state which hiring practices or training methods it should have employed,
and failed to state how those improper practices proximately caused Bush’s injuries. For this
reason, to the extent that plaintiff’s claims rest on these theories, the trial court should have
granted summary disposition in favor of WM Cardiovascular. Id. at 694-695.
However, when read as a whole, see Boodt, supra at 628, the notice did provide WM
Cardiovascular with adequate notice of vicarious liability. The notice provided that facilities
such as WM Cardiovascular had a duty to “properly train and hire competent employees . . .
including physicians . . . who are able to competently treat, assess, chart, monitor, diagnose, care
for, refer . . . and surgically treat patients . . . .” The notice further provided that, on the basis of
these duties, WM Cardiovascular was “responsible for the breach of the standard of practice of
all their employees.” This was sufficient to place WM Cardiovascular on notice that plaintiff
alleged that WM Cardiovascular could be held vicariously liable for a breach of the applicable
standard of care by its employees.
2. Heiser
If plaintiff’s notice of the standard of care is read in isolation from the remainder of the
notice, it clearly does not provide a particularized standard for Heiser. See Roberts, supra at
694. The standards of care for all the physicians are lumped together and stated in the most
general of terms: “The standard of care or practice requires that physicians . . . be able to
competently treat, diagnose, monitor, care for, refer to other specialties and surgically treat
patients . . . .” Reduced to its core, this statement merely asserts that the standard requires
physicians to be competent. But this sort of general averment is insufficient to satisfy the
requirements of MCL 600.2912b(4)(b). See Roberts, supra at 694 (noting that general assertions
that the standard of care requires the defendants to give “‘prope[r] care’” and render “‘competent
advice’” are not adequately responsive). Nevertheless, when this section is read in conjunction
with the other sections, plaintiff’s notice adequately addressed the standard of care applicable to
Heiser.
In the sections dealing with the manner of breach and the recommended actions, plaintiff
noted that Heiser was required to be prepared “for possible aortic aneurysm laceration during
repeat sternotomy” and had to “properly and carefully cannulate” Bush. The notice also
provided that Heiser should have given Bush an anticoagulant to reduce the likelihood of an
“embolic event” and that after the surgery Heiser had a duty to “diagnose or treat the signs or
symptoms of stroke.” Although plaintiff did not directly indicate that these things were required
under the standard of care, the context leaves no doubt that these statements are statements of the
standard of care applicable to a cardiothoracic surgeon acting under the given facts. Hence, the
notice provides that Heiser had a duty under the standard of care to be prepared for the types of
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complications that arise during a “repeat sternotomy,” to take steps to reduce the likelihood of an
“embolic event,” to properly perform the cannulation procedure by placing the clamp in the
proper place and in such a way as to reduce damage to the artery and prevent plaque
fragmentation, and to ensure proper postoperative monitoring for stroke, which Heiser should
have known was a possible complication with this type of surgery. Therefore, when read as a
whole, plaintiff’s notice contained a good-faith statement of the standard of care plaintiff alleged
applied to Heiser. Boodt, supra at 626.
3. Shabahang
As already noted, plaintiff’s notice did not contain an adequate statement of the
applicable standards of care under the heading of that name. But as was the case with Heiser,
when the notice is examined as a whole and without regard to the specific headings, the notice
met the minimal requirements of MCL 600.2912b(4)(b).
In addition to the general statement that Shabahang had a duty under the applicable
standard of care to competently treat and diagnose patients, plaintiff’s notice also alleged that
Shabahang had a duty to properly evaluate the risks associated with the various procedures based
on Bush’s history before recommending a particular procedure. Specifically, plaintiff stated that
Shabahang “should have advised Mr. Bush of the extreme risks involved” given Bush’s “history
of pediatric cardiac surgery and the location of the aneurysm.” The notice also provided that
Shabahang, like Heiser, should have been prepared for the specific issues that might arise during
a procedure of this nature and should have taken specific steps to reduce the likelihood of both
operative and postoperative complications. As part of this duty, plaintiff alleged that Shabahang
should have ensured that Bush was properly monitored for complications, such as stroke.
Finally, plaintiff also clearly indicated that Shabahang had a duty to use the oscillating saw with
sufficient care as to avoid lacerating the aneurysm.
Plaintiff’s notice adequately addressed the standard of care applicable to Shabahang as a
cardiothoracic surgeon.
D. Statements of Proximate Cause
WM Cardiovascular and Heiser also argue that plaintiff’s notice failed to contain a proper
statement concerning how these defendants’ alleged breaches of the standard of care proximately
caused Bush’s injuries. We do not agree.
Plaintiff’s notice had to also include a statement of 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.” MCL 600.2912b(4)(e). In order to satisfy this requirement, the notice must contain
specific allegations regarding the conduct of the named defendants. Roberts, supra at 699-700.
In the present case, we have already concluded that plaintiff’s notice met the minimum
requirements for alleging that WM Cardiovascular could be held vicariously liable for the
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actions of Heiser and Shabahang. Hence, whether plaintiff’s notice met the requirements for the
statements of proximate cause depends on whether the statements of proximate cause for Heiser
and Shabahang met the requirements of MCL 600.2912b(4)(e).6
As with the standard of care, plaintiff’s statement of proximate cause improperly bundled
all defendants under one umbrella statement that was too general to meet the particularity
requirements of the statute. See Roberts, supra at 699-700, citing MCL 600.2912b(4)(e).
However, when read as a whole, the notice adequately states the manner in which Heiser’s
breaches of the standard of care are alleged to have caused Bush’s injuries.
The notice provides that, because Heiser failed to properly perform the cannulation
procedure, Bush’s artery suffered injury and there was “fragmentation of the plaque.” Plaintiff
also alleged that Heiser’s improper technique caused “compartment syndrome” and that all this
resulted in the cannulae’s being in for an excessive time. Finally, plaintiff asserted that, had
Heiser ordered the use of an anticoagulant, Bush might not have suffered an embolic event and,
had Heiser ensured proper monitoring, Bush’s stroke could have been treated properly. These
failures, plaintiff claimed, caused Bush to suffer “neurological injury, stroke, seizures, speech
impairment, ambulation deficits, embolic phenomenon with subsequent brain stem syndrome
with supranuclear opthalmoplegia, proximal upper extremity weakness and myocardial
infarction.” These statements, when read together, were sufficient to meet the notice
requirements for proximate causation as applied to Heiser.
E. Spectrum Health’s Claims of Error
Spectrum Health also challenges the sufficiency of plaintiff’s notice. Specifically,
Spectrum Health contends that the notice does not meet the requirements for a statement of the
standard of care and a statement of proximate causation for the hospital’s staff or Heiser or
Shabahang. We agree in part and disagree in part.
Although plaintiff’s notice alleges errors on the part of Spectrum Health’s nursing staff
and physician assistants, the notice does not purport to state a separate standard of care for the
nurses and physician assistants. This problem is compounded by the fact that the notice does not
delineate the specific actions taken by the nursing staff or physician assistants that purportedly
breached the standard of care. Rather, plaintiff’s notice generally asserts that the staff should
have performed monitoring, charting, assessing, and reporting and engaged in advocacy for the
patient and otherwise challenged the actions of physicians. Finally, the notice does not state the
manner in which the identified breaches proximately caused Bush’s injuries. Thus, even when
the notice is read as a whole, it does not adequately address the standard of care applicable to
Spectrum Health’s staff other than Heiser and Shabahang. For that reason, we agree with
6
Because WM Cardiovascular has not contested the statement of proximate cause for
Shabahang, we shall here limit our analysis to the statement of proximate cause applicable to
Heiser. Nevertheless, as noted later in this opinion, we conclude that the notice also contained
an adequate statement of proximate cause for Shabahang.
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Spectrum Health that the trial court erred when it concluded that plaintiff’s notice met the
minimum requirements of MCL 600.2912b(4)(b) with regard to Spectrum Health’s nursing staff
and physician assistants. Likewise, to the extent that plaintiff purported to give notice that
Spectrum Health could be held directly liable for Bush’s injuries on the basis of the theories that
it negligently hired or failed to train its staff, for the same reasons we explained with regard to
WM Cardiovascular, we conclude that the notice did not meet the requirements of MCL
600.2912b.
However, we disagree with Spectrum Health’s contention that plaintiff failed to
adequately provide notice that Spectrum Health could be held vicariously liable for the actions of
Heiser and Shabahang. As noted above with regard to WM Cardiovascular, plaintiff provided
notice that entities such as Spectrum Health were “responsible for the breach of the standard of
practice of all their employees[,] agents[,] or assigns,” which includes Heiser and Shabahang.
Further, we reject Spectrum Health’s argument that plaintiff had to include a statement that
asserted that, had Spectrum Health’s employees complied with the standard of care, Bush’s
chance of obtaining a more favorable result would have been at least 51 percent or higher, see
Ensink v Mecosta Co Gen Hosp, 262 Mich App 518, 539; 687 NW2d 143 (2004), or a statement
that Bush’s injuries were reasonably foreseeable. The Legislature did not include these
requirements in MCL 600.2912b(4), and we decline to read them into the statute.
Spectrum Health also argues that the notice did not provide proper statements of the
standard of care or proximate cause for Heiser and Shabahang. As already noted, plaintiff’s
notice included proper statements of the standard of care for both Heiser and Shabahang. And
we have also already considered and rejected the argument that plaintiff’s notice failed to make a
proper statement of proximate cause for Heiser. Therefore, the only remaining question is
whether the notice properly included a statement of proximate cause applicable to Shabahang.
As with the statement of proximate cause applicable to Heiser, when read in its entirety,
plaintiff’s notice met the minimum requirements for a statement of proximate cause regarding
the actions of Shabahang. Boodt, supra at 626. The notice provided that Shabahang should not
have recommended such a dangerous procedure and should have properly informed Bush of the
degree of danger. It also provided that Shabahang should have been better prepared for the
complications associated with this type of surgery and should not have lacerated the aneurysm.
Plaintiff further alleged that this laceration directly “initiated the cascade of events described
herein leading to brain injury and left leg compartment syndrome.” Finally, plaintiff stated that,
with the use of an anticoagulant and proper monitoring, the injuries associated with the embolic
event might have been avoided or mitigated. These statements were sufficient to meet the
requirements for a statement of proximate cause under MCL 600.2912b(4)(e) with regard to
Shabahang.
F. Conclusion
When read as a whole, plaintiff’s notice met the minimum requirements for statements of
the standard of care and proximate cause for Heiser and Shabahang and adequately gave notice
that WM Cardiovascular and Spectrum Health could be vicariously liable for the actions of
Heiser and Shabahang. However, the notice did not meet the requirements of MCL 600.2912b to
the extent that plaintiff sought to hold WM Cardiovascular and Spectrum Health directly liable
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under a negligent-hiring or a failure-to-train theory and to the extent that plaintiff sought to hold
Spectrum Health liable on the basis of the actions of its staff members other than Heiser or
Shabahang.
III. Premature Filing of Complaint
We shall next address Shabahang’s argument that the trial court erred when it concluded
that plaintiff did not prematurely file suit in violation of MCL 600.2912b(1).
A. Statutory Notice Requirements
A plaintiff is prohibited from commencing an action alleging medical malpractice unless
the plaintiff has given the health professional written notice “not less than 182 days before the
action is commenced.” MCL 600.2912b(1). The notice must include a statement of the factual
basis for the claim, the applicable standard of care, the manner in which it is claimed that the
health professional breached the standard of care, the alleged actions that should have been taken
to achieve compliance with the standard of care, the manner that the breach proximately caused
the injury, and the names of all health professionals notified under the section in relation to the
claim. MCL 600.2912b(4). The defendant’s remedy for a plaintiff’s failure to comply with
these provisions is dismissal of the plaintiff’s case. Burton, supra at 753. Our Supreme Court
has further held that the filing of a complaint before the expiration of the 182-day notice period
does not commence the suit. Id. at 754. Hence, a suit filed before the expiration of the 182-day
notice period will not toll the period of limitations under MCL 600.5856(a). Burton, supra at
756.
Within 154 days after receipt of the notice required by MCL 600.2912b(1), a defendant
must furnish a written response to the plaintiff. MCL 600.2912b(7). The response must include
a statement of the factual basis for the defense, the standard of care the health professional
claims applies, the manner in which it is claimed that the health professional complied with the
standard of care, and the manner in which the health professional contends that the alleged
negligence was not the proximate cause of the plaintiff’s injuries. MCL 600.2912b(7)(a) to (d).
If the plaintiff does not receive the written response required under MCL 600.2912b(7) within
the 154-day period, the plaintiff may commence the suit “upon the expiration of the 154-day
period.” MCL 600.2912b(8). Hence, although the remedy for a plaintiff’s failure to provide an
adequate notice is dismissal of the action, the plaintiff’s remedy for a defendant’s failure to file
an adequate response is that the plaintiff may commence the suit up to 28 days earlier than would
otherwise be required under MCL 600.2912b(1).
B. Premature Filing and Notice
In the present case, it is undisputed that Shabahang provided a response to plaintiff’s
notice. However, on appeal plaintiff argues that the notice did not meet the requirements of
MCL 600.2912b(7). Therefore, plaintiff further contends, he could properly commence his suit
upon the expiration of the 154-day period. See MCL 600.2912b(8). Shabahang counters that
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plaintiff could not unilaterally determine that the response was inadequate. Instead, the response
must be considered presumptively adequate. Therefore, Shabahang continues, once he filed his
response, plaintiff was required to wait the full 182 days.7 We do not agree that plaintiff had to
successfully challenge the validity of the response before filing his complaint under the
shortened period provided by MCL 600.2912b(8).
Under the plain language of MCL 600.2912b(7), a medical-malpractice defendant must
provide a written response that includes the statements enumerated under MCL 600.2912b(7)(a)
through (d). Further, a plaintiff is entitled to commence the suit up to 28 days before the
expiration of the 182-day waiting period required under MCL 600.2912b(1), if the plaintiff “does
not receive the written response required under [MCL 600.2912b(7)] within the required 154day time period . . . .” MCL 600.2912b(8) (emphasis added). Because the plaintiff is entitled to
the response required by MCL 600.2912b(7) within the 154-day period, it is clear that the
defendant’s response must be timely and must meet the substantive requirements of MCL
600.2912b(7)(a) through (d). Therefore, if a defendant’s response is either untimely or does not
meet the requirements of MCL 600.2912b(7), the plaintiff will be entitled to the remedy
provided under MCL 600.2912b(8). However, the statute does not directly address whether a
plaintiff must first challenge the validity of a defendant’s response before utilizing the earlyfiling provisions of MCL 600.2912b(8).
Shabahang relies in part on our Supreme Court’s decision in Saffian v Simmons, 477
Mich 8; 727 NW2d 132 (2007), for the proposition that plaintiff cannot unilaterally determine
that his response did not meet the requirements of MCL 600.2912b(7).
In Saffian, the plaintiff sued for malpractice. After the defendant failed to answer the
plaintiff’s complaint, the plaintiff filed a default. Saffian, supra at 10. On appeal, the defendant
argued that he did not have to answer the plaintiff’s complaint because the plaintiff’s affidavit of
merit did not meet the substantive requirements of MCL 600.2912d and, therefore, never
commenced the suit. Our Supreme Court disagreed.
The Court first noted that MCL 600.2912e(1) “provides that a defendant in a medical
malpractice action ‘shall’ answer the complaint within 21 days after the plaintiff has filed ‘an
affidavit in compliance with section 2912d.’“ Saffian, supra at 12. The Court then explained
that “nothing in either MCL 600.2912e(1) or MCR 2.108(A)(6) authorizes a defendant to
determine unilaterally whether the plaintiff’s affidavit of merit satisfies the requirements of MCL
600.2912d.” Saffian, supra at 13. After noting the absence of statutory language providing for a
defendant’s unilateral determination concerning the sufficiency of the affidavit, the Court
approvingly noted that the Court of Appeals majority and concurrence had determined that it was
up to the trial court to determine the sufficiency of the pleadings. Id. As such, until properly
7
After hearing oral arguments on the adequacy of Shabahang’s response to plaintiff’s notice, the
trial court ruled that plaintiff’s complaint was not prematurely filed. Hence, the trial court
implicitly determined that Shabahang’s response did not meet the requirements of MCL
600.2912b(7). On appeal, Shabahang does not challenge this determination.
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rebutted in a judicial proceeding, an affidavit of merit is presumed valid. Id. The Court also
justified its holding on policy grounds; it explained that the presumption would establish a “more
orderly process” for challenging affidavits and advance “the efficient administration of justice . .
. . ” Id. at 14.
Just a few months later, our Supreme Court reiterated that affidavits of merit are
presumptively valid. See Kirkaldy v Rim, 478 Mich 581, 586; 734 NW2d 201 (2007), citing
Saffian, supra at 13. It further clarified that “a complaint and affidavit of merit toll the period of
limitations until the validity of the affidavit is successfully challenged in ‘subsequent judicial
proceedings.’“ Kirkaldy, supra at 586. “Thus, if the defendant believes that an affidavit is
deficient, the defendant must challenge the affidavit.” Id. And, if the challenge is successful, the
proper remedy is dismissal without prejudice, after which time the period of limitations resumes
running. Id.
This Court, in turn, adopted by analogy our Supreme Court’s treatment of potentially
deficient affidavits of merit in Kirkaldy as the proper method for treating potentially deficient
notices under MCL 600.2912b(1). See Potter, supra at 286. Hence, under Potter, a notice of
intent is presumed valid until successfully challenged. Id. Further, the remedy for a successful
challenge “is dismissal without prejudice, affording the plaintiff the opportunity to cure the
deficiency within the time remaining within the limitations period as theretofore tolled by the
now-invalidated notice or the subsequent filing of the complaint.” Id.
Although the presumption of validity for affidavits of merit and notices under Saffian,
Kirkaldy, and Potter appears applicable by analogy to the response required by MCL
600.2912b(7), on closer examination, the underlying bases in support of a presumption of
validity for affidavits of merit and notices actually militate against such a presumption for the
response required by MCL 600.2912b(7). As a preliminary matter, it must be noted that the
Court in Potter adopted the presumption for notices solely on the basis of Kirkaldy, which in turn
relied exclusively on Saffian; neither the Court in Kirkaldy nor the Court in Potter offered an
independent analysis of the bases for the presumption. In Saffian, our Supreme Court relied on
three bases for the creation of the presumption of validity for affidavits of merit: (1) the absence
of statutory language permitting a defendant to unilaterally determine whether the affidavit was
valid, (2) the fact that trial courts typically determined the sufficiency of pleadings, and (3)
policy reasons such as the orderly and efficient administration of justice. Saffian, supra at 13-14.
Under the statutory provisions governing affidavits of merit and notices of intent, the
Legislature did not specifically provide a remedy for a plaintiff’s failure to comply with the
substantive requirements for affidavits of merit and notices. See MCL 600.2912d and MCL
600.2912b. In contrast, MCL 600.2912b(8) provides a remedy for a defendant’s failure to file
the response required by MCL 600.2912b(7). Under the plain language of this statute, the
plaintiff “may commence” the medical-malpractice suit after the passage of 154 days rather than
waiting the full 182 days required by MCL 600.2912b(1). See MCL 600.2912b(8). By stating
that the plaintiff “may commence” the suit, the Legislature implicitly—if not explicitly—gave
the plaintiff the discretion to decide whether to avail himself or herself of the benefit of MCL
600.2912b(8).
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Moreover, a defendant’s response is not a pleading under MCR 2.110(A) and is not a
prerequisite for the filing of any pleading. This is in contrast to the requirements for an affidavit
of merit and notice, which are both prerequisites to commencing a medical-malpractice suit. See
MCL 600.2912b(1) and MCL 2912d(1); see also Scarsella v Pollak, 461 Mich 547, 553; 607
NW2d 711 (2000) (noting that a filing of a medical-malpractice complaint is ineffective without
an affidavit of merit), and Burton, supra at 752-753 (noting that compliance with MCL
600.2912b(1) is mandatory before the commencement of a medical-malpractice suit). Thus, a
challenge to the sufficiency of an affidavit of merit or notice constitutes a challenge to the suit as
a whole. Because a defective affidavit of merit or notice will result in the dismissal of the
plaintiff’s suit, it is essential to the efficient administration of justice that the trial court determine
the validity of the affidavit or notice. In contrast, a plaintiff’s unilateral decision to file early in
the belief that the defendant’s response under MCL 600.2912b(7) was deficient does not
substantively affect the defendant’s rights; the defendant may still challenge the plaintiff’s filing
as premature under MCL 600.2912b(1). Indeed, a plaintiff who files before the expiration of the
182-day waiting period in reliance on MCL 600.2912b(8) assumes the risk that the trial court
will conclude that the defendant’s response was adequate and, therefore, dismiss the plaintiff’s
case. Finally, because of the limited number of days within which a plaintiff may make use of
MCL 600.2912b(8), it is impractical to require plaintiffs to challenge the defendant’s response
by motion and hearing before the trial court. By the time the parties could schedule a hearing
and brief the issue, much—if not all—of the time afforded to the plaintiff by MCL 600.2912b(8)
would be lost.
For these reasons, we conclude that a plaintiff does not need to challenge the sufficiency
of the response required under MCL 600.2912b(7) before utilizing the shortened filing period
provided by MCL 600.2912b(8). Nevertheless, we caution that a plaintiff who files suit before
the expiration of the 182-day period required under MCL 600.2912b(1) on the basis that the
defendant’s response did not meet the requirements of MCL 600.2912b(7) still risks dismissal of
his or her suit if the trial court later determines that the defendant’s response was adequate. See
Burton, supra at 756.
C. Conclusion
For these reasons, we conclude that plaintiff could properly choose to file after the
expiration of the 154-day period specified in MCL 600.2912b(8) in reliance on the belief that
Shabahang’s response did not meet the requirements of MCL 600.2912b(7). Consequently, the
trial court did not err when it concluded that plaintiff’s complaint was not prematurely filed.
IV. General Conclusions
Although it could have been drafted more artfully, plaintiff’s notice contained adequate
statements of the standard of care and proximate causation applicable to Heiser and Shabahang.
Further, the notice put WM Cardiovascular and Spectrum Health on notice that plaintiff claimed
that they could be held vicariously liable for the actions of Shabahang and Heiser. Therefore, the
trial court did not err when it refused to grant summary disposition on the basis of defendants’
claims that the notice was deficient in these regards. However, plaintiff’s notice did not meet the
requirements of MCL 600.2912b for purposes of holding WM Cardiovascular and Spectrum
Health directly liable under a negligent-hiring or failure-to-train theory. It was also insufficient
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to provide notice of vicarious liability with regard to Spectrum Health’s staff members other than
Heiser and Shabahang. Therefore, the trial court should have granted summary disposition in
favor of WM Cardiovascular and Spectrum Health to the extent that plaintiff’s claims rely on
direct-liability theories and to Spectrum Health to the extent that plaintiff’s claims arise from the
actions of Spectrum Health’s staff other than Heiser and Shabahang.8 Finally, because plaintiff
could properly elect to file suit after 154 days on the basis of his belief that Shabahang’s
response to plaintiff’s notice was deficient, the trial court did not err when it concluded that
plaintiff’s suit was not prematurely filed.
We affirm in part, reverse in part, and remand for entry of partial summary disposition
without prejudice in favor of WM Cardiovascular and Spectrum Health consistent with this
opinion. The applicable limitations periods remain tolled until entry of the grants of summary
disposition. In all other respects, we affirm. We do not retain jurisdiction.
Beckering, J., concurred.
/s/ Michael R. Smolenski
/s/ Jane M. Beckering
8
As noted above, the trial court already dismissed plaintiff’s claims against Spectrum Health to
the extent that those claims were based on the actions of Spectrum Health’s physician assistants.
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