LINDA SHEMBER V UNIVERSITY OF MICHIGAN MEDICAL CENTERAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
August 21, 2008
UNIVERSITY OF MICHIGAN MEDICAL
CENTER, UNIVERSITY OF MICHIGAN
BOARD OF REGENTS, UNIVERSITY OF
MICHIGAN HOSPITALS & HEALTH
CENTERS, and UNIVERSITY OF MICHIGAN
Washtenaw Circuit Court
LC No. 06-000080-NH
Advance Sheets Version
PIA MALY SUNDGREN, ANTHONY D’AMICO,
STEVEN KRONICK, JOHN N. SHENK, SONJA
KRAFCIK, CAROL R. BRADFORD, M.D., DALE
EKBOM, M.D., JAMES A. FREER, M.D., and
PAUL DEFLORIO, M.D.,
Before: Markey, P.J., and White and Wilder, JJ.
In this medical malpractice action, plaintiff appeals by right the trial court’s February 5,
2007, order granting summary disposition in favor of four individual defendants, Drs. Carol L.
Bradford, Dale Ekbom, James A. Freer, and Paul DeFlorio. Plaintiff also challenges the trial
court’s earlier June 5, 2006, order dismissing her claims against the other five individual
defendants, Drs. Pia M. Sundgren, Anthony D’Amico, Steven Kronick, John N. Shenk, and
Steven Krafcik, and denying her motion to amend the complaint to allege fraudulent
concealment. We affirm.
On July 31, 2003, plaintiff underwent surgery at the University of Michigan Hospital to
drain a cervical epidural abscess. She allegedly developed left hemiplegia before the surgery,
which left her without the use of her left arm and leg. In a notice of intent to file a claim, MCL
600.2912b, mailed on July 20, 2005, plaintiff asserted that her condition was caused by the
failure of health care providers to timely and appropriately diagnose and treat her condition on
July 24 and 30, 2003, and that she suffered further injury because of improper postoperative care.
The notice was addressed to the University of Michigan Hospitals & Health Centers, various
unnamed persons, and 20 named physicians, including five of the individual defendants, Drs.
Bradford, Ekbom, Freer, DeFlorio, and Krafcik.
In an amended notice of intent, dated January 18, 2006, plaintiff modified the basis of her
claims against the individual defendants in this case to allege more specific standards of care
applicable to emergency physicians and nurses, the “radiologist/neuroradiologist,” and “ENT
consulting physicians,” and added allegations regarding a July 28, 2003, clinical visit.
On January 20, 2006, plaintiff filed the instant action against the University of Michigan
defendants and the nine individual defendants. In February 2006, the individual defendants
moved for summary disposition under MCR 2.116(C)(7) and (10) on the grounds that plaintiff’s
claims were barred by the statute of limitations and that the claim against Dr. Krafcik lacked an
appropriate affidavit of merit required by MCL 600.2912d. Before the hearing on the motion for
summary disposition, plaintiff moved to amend her complaint pursuant to MCR 2.116(I)(5) and
2.118(A)(2) to add additional theories of liability and to allege fraudulent concealment. In a
proposed amended complaint filed with the motion, plaintiff alleged that “defendants,” by
withholding certain medical records, fraudulently concealed the identity of the four individual
defendants who were not named in her initial presuit notice of intent to file a claim.
Following a hearing on May 17, 2006, the trial court entered an order dated June 5, 2006,
dismissing with prejudice plaintiff’s claims against Drs. Sundgren, D’Amico, Kronick, Shenk,
and Krafcik. Plaintiff’s motion to amend her complaint to allege fraudulent concealment was
also denied. The trial court allowed the parties to file supplemental briefs with respect to the
remaining individual defendants and the additional theories of liability alleged in plaintiff’s
proposed amended complaint. Plaintiff also filed a motion for reconsideration of the order
denying her motion to amend her complaint to allege fraudulent concealment, asserting that she
had additional evidence to support the claim.1
The University of Michigan defendants were dismissed without prejudice pursuant to a
stipulated order dated July 31, 2006.
On February 5, 2007, the trial court issued an opinion and order dismissing the four
remaining individual defendants, Drs. Bradford, Ekbom, Freer, and DeFlorio, with prejudice.
Plaintiff’s motions for reconsideration and to amend her complaint were also denied.
II. Standard of Review
We review de novo a trial court’s grant of summary disposition to determine if the
moving party was entitled to judgment as a matter of law. Maiden v Rozwood, 461 Mich 109,
118; 597 NW2d 817 (1999). Questions of statutory construction are also reviewed de novo.
Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006). Summary disposition may be
granted under MCR 2.116(C)(7) when a claim is barred because of a statute of limitations. The
moving party may support the motion with affidavits, depositions, admissions, or other
documentary evidence. Maiden, supra at 119. Such evidence is considered to the extent that the
content or substance would be admissible as evidence. MCR 2.116(G)(6). The allegations in the
complaint are accepted as true unless contradicted by the documentary evidence. Maiden, supra
at 119. “If the pleadings or other documentary evidence reveal no genuine issues of material
fact, the court must decide as a matter of law whether the claim is statutorily barred.” Holmes v
Michigan Capital Med Ctr, 242 Mich App 703, 706; 620 NW2d 319 (2000).
We review a trial court’s denial of a motion to amend a complaint for an abuse of
discretion. Weymers v Khera, 454 Mich 639, 654; 563 NW2d 647 (1997). An abuse of
discretion occurs when a trial court’s decision falls outside the range of principled outcomes.
Woodard, supra at 557. A motion to amend under MCR 2.118 should ordinarily be granted, but
may be denied for the following particularized reasons: “‘ undue delay,  bad faith or
dilatory motive on the part of the movant,  repeated failure to cure deficiencies by
amendments previously allowed,  undue prejudice to the opposing party by virtue of the
amendment, [and 5] futility. . . .’” Sands Appliance Services, Inc v Wilson, 463 Mich 231, 239240; 615 NW2d 241 (2000), quoting Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213
NW2d 134 (1973).
III. Malpractice Claims Against Drs. Sundgren, D’Amico, Kronick, and Shenk
Because it concluded that the statutory period of limitations had expired, the trial court
granted summary disposition in favor of Drs. Sundgren, D’Amico, Kronick, and Shenk, who
were not named in plaintiff’s initial notice of intent to file a claim. The trial court further
determined that plaintiff had failed to demonstrate any reason for tolling the limitations period in
spite of plaintiff’s claim of fraudulent concealment or the initial or amended notice of intent to
file a claim.
Initially, we note that this Court previously denied defendants’ motion to strike the
portion of plaintiff’s brief relating to the earlier June 5, 2006, order. Shember v Univ of
Michigan Med Ctr, unpublished order of the Court of Appeals, entered November 30, 2007
(Docket No. 276515). Further, plaintiff’s failure to list each individual defendant as an appellee
in the claim of appeal, as required by MCR 7.204(D)(1), was not fatal to this Court’s jurisdiction
over the four individual defendants, who each received notice of the appeal. See Kaufman &
Payton, PC v Nikkila, 200 Mich App 250, 258 n 1; 503 NW2d 728 (1993) (Connor, J.,
dissenting). Additionally, a party claiming an appeal of right from a final order is free to raise
issues on appeal related to prior orders. See Bonner v Chicago Title Ins Co, 194 Mich App 462,
472; 487 NW2d 807 (1992). Therefore, appellate review of the trial court’s decision dismissing
these four individual defendants is not precluded.
Nonetheless, “[i]t is axiomatic that where a party fails to brief the merits of an allegation
of error, the issue is deemed abandoned by this Court.” Prince v MacDonald, 237 Mich App
186, 197; 602 NW2d 834 (1999). An appellant may not leave it to this Court to discover and
rationalize the basis of a claim. Peterson Novelties, Inc v City of Berkley, 259 Mich App 1, 14;
672 NW2d 351 (2003). Although this Court may overlook preservation requirements in certain
circumstances, “a party’s failure to brief an issue that necessarily must be reached precludes
appellate relief.” City of Riverview v Sibley Limestone, 270 Mich App 627, 638; 716 NW2d 615
Here, plaintiff has not raised any issue challenging the trial court’s determination that,
absent a legally cognizable tolling event, the two-year limitations period in MCL 600.5805(6)
expired before the complaint was filed on January 20, 2006; consequently, summary disposition
of the malpractice claims against Drs. Sundgren, D’Amico, Kronick, and Shenk was proper
under MCR 2.116(C)(7). Further, plaintiff does not argue that she may take advantage of the
presuit notice-tolling provision in MCL 600.5856 with respect to these individual defendants.
At best, plaintiff has presented an issue challenging the trial court’s determination that
there was no evidence of fraudulent concealment to toll the limitations period. But plaintiff
incorrectly presents this issue solely as one relevant to whether she should have been allowed to
amend her complaint to add a substantive claim for fraudulent concealment.
It is true that a plaintiff must allege in a complaint facts supporting fraudulent
concealment in order to rely on the fraudulent concealment tolling provision.2 Sills v Oakland
Gen Hosp, 220 Mich App 303, 310; 559 NW2d 348 (1996); Dunmore v Babaoff, 149 Mich App
140, 146-147; 386 NW2d 154 (1985). But the fraudulent concealment tolling provision is not
itself a substantive cause of action for which a plaintiff may recover damages from a tortfeasor.
Fraudulent concealment is recognized as a tolling event in MCL 600.5855. See Sills,
supra; Dunmore, supra. Plaintiff is charged with the discovery of facts that with the exercise of
reasonable diligence she ought to have discovered. The Meyer & Anna Prentis Family
MCL 600.5855 provides:
If a person who is or may be liable for any claim fraudulently conceals the
existence of the claim or the identity of any person who is liable for the claim
from the knowledge of the person entitled to sue on the claim, the action may be
commenced at any time within 2 years after the person who is entitled to bring the
action discovers, or should have discovered, the existence of the claim or the
identity of the person who is liable for the claim, although the action would
otherwise be barred by the period of limitations.
Foundation, Inc v Barbara Ann Karmanos Cancer Institute, 266 Mich App 39, 45-46 n 2; 698
NW2d 900 (2005). To prove fraudulent concealment, plaintiff must show that a person who is or
may be liable for the claim engaged in some arrangement or contrivance of an affirmative
character, which was designed to prevent subsequent discovery of the existence of the claim or
the identity of the person liable for the claim. Doe v Roman Catholic Archbishop, 264 Mich App
632, 642-643; 692 NW2d 398 (2004); Sills, supra at 310. Plaintiff must specifically plead the
acts or misrepresentations that comprised the fraudulent concealment and prove that they were
designed to prevent subsequent discovery. Phinney v Perlmutter, 222 Mich App 513, 563; 564
NW2d 532 (1997); Dunmore, supra at 147.
Because tolling based on fraudulent concealment relates to the statute of limitations, it is
appropriately reviewed under MCR 2.116(C)(7). The Meyer & Anna Prentis Family
Foundation, Inc, supra at 46 n 3. Therefore, it was appropriate for the trial court to consider the
evidence the parties submitted when reviewing defendants’ motion for summary disposition.
The affidavits plaintiff and her counsel executed aver that they both attended a meeting
on September 2, 2004, at the University of Michigan’s risk management department and were
provided with incomplete medical records at that time. Plaintiff’s counsel averred, and
documentary evidence confirmed, that an issue arose in February 2005 regarding whether it was
necessary that plaintiff execute a release to authorize counsel’s receipt of the records, but there
was no evidence that plaintiff executed or timely provided the release.3 And while plaintiff’s
counsel averred that she was unsuccessful in obtaining copies of additional records from the risk
management department, plaintiff averred that she was able to obtain copies of the records in
August 2005, by personally going to the University of Michigan’s records department.
We must consider the evidence in the light most favorable to plaintiff. Brennan v
Edward D Jones & Co, 245 Mich App 156, 157; 626 NW2d 917 (2001). In so doing, we agree
with the trial court that there was no evidence of fraudulent concealment. Plaintiff was required
to exercise reasonable diligence. The Meyer & Anna Prentis Family Foundation, Inc, supra at
46 n 2. Assuming for purposes of review that the University of Michigan was or may be liable
within the meaning of MCL 600.5855, plaintiff’s counsel’s inability to obtain medical records
from the university’s employees plainly suggested the need for some other course of action to
either view or obtain copies of the records. The evidence did not support an inference that the
employees had embarked on a course of action designed to prevent or hinder plaintiff’s
identifying the particular physicians who might be liable for medical malpractice. Further,
plaintiff offered no evidence that she could not have, with reasonable diligence, timely accessed
or obtained copies of the records through other means, such as when, according to plaintiff’s
affidavit, she personally went to the records department in August 2005 and obtained the records.
We note that plaintiff submitted additional evidence with her motion for reconsideration of the
trial court’s denial of her motion to amend the complaint, but plaintiff does not challenge the trial
court’s decision to deny the motion for reconsideration.
Because plaintiff’s original complaint did not allege fraudulent concealment and because
plaintiff failed to demonstrate any evidence showing a genuine issue of material fact regarding
this issue, we uphold the trial court’s grant of summary disposition under MCR 2.116(C)(7) in
favor of Drs. Sundgren, D’Amico, Kronick, and Shenk. Holmes, supra at 706. Further, given
the lack of evidence to support this tolling theory, the trial court did not abuse its discretion in
denying plaintiff’s motion to amend the complaint to plead fraudulent concealment. Only where
summary disposition is based on MCR 2.116(C)(8), (9), or (10) is a trial court required to give a
party an opportunity to amend the complaint. MCR 2.116(I)(5); Weymers, supra at 658. Even
then, the evidence before the trial court can be considered in determining if an amendment would
be justified. MCR 2.116(I)(5); see also Ormsby v Capital Welding, Inc, 471 Mich 45, 52-60; 684
NW2d 320 (2004). Therefore, even if we were to treat this case as involving a motion under
MCR 2.116(C)(8) instead of MCR 2.116(C)(7), we would not reverse because the evidence
before the trial court when it decided the motion indicates that an amendment would have been
futile. Ormsby, supra at 53, 60; Dunmore, supra at 147.
IV. Malpractice Claims Against Drs. Bradford, Ekbom, Freer, and DeFlorio
The trial court granted summary disposition in favor of Drs. Bradford, Ekbom, Freer, and
DeFlorio on the ground that plaintiff’s claims were barred by the statute of limitations. It
determined that plaintiff could not take advantage of the presuit notice tolling provision in MCL
600.5856(c) because her initial notice of intent mailed on July 20, 2005, did not comply with the
requirement of MCL 600.2912b(4)(b) that the notice identify the applicable standard of practice
Although the trial court did not articulate the particular subrule of MCR 2.116 on which it
relied, the individual defendants sought summary disposition under MCR 2.116(C)(7), which is
appropriately applied to claims based on a statute of limitations. The Meyer & Anna Prentis
Family Foundation, Inc, supra at 46 n 3.
Plaintiff’s principal argument is that the trial court erred in finding that her initial presuit
notice of intent failed to comply with MCL 600.2912b(4)(b). We disagree. Under Roberts v
Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 690-696; 684 NW2d 711 (2004) (Roberts
II), a plaintiff must identify in a readily ascertainable manner all the specific information
mandated by the statute regarding each particular professional or facility that is named in the
notice. The notice is not required to be accurate in every respect. Id. at 691. But a plaintiff must
“make good-faith averments that provide details that are responsive to the information sought by
the statute and that are as particularized as is consistent with the early notice stage of the
proceedings.” Id. at 701 (emphasis in original); see also Boodt v Borgess Med Ctr, 481 Mich
558, 560-561; 751 NW2d 44 (2008). The standard applicable to one defendant is not necessarily
the same standard applicable to another defendant. Roberts II, supra at 694 n 11. The degree of
specificity must allow potential defendants to understand the nature of the claims against them.
Id. at 701. A plaintiff must only “‘specify what it is that she is claiming under each of the
enumerated categories in § 2912b(4).’” Boodt, supra at 561, quoting Roberts II, supra at 701
(emphasis in original).
In this case, plaintiff’s notice was addressed to the University of Michigan Hospitals &
Health Centers; 20 individuals from a variety of departments, including emergency medicine,
physical medicine and rehabilitation, otolaryngology, neurosurgery, and radiology; and unnamed
individuals. The only factual allegations directed at Dr. Bradford, an alleged member of the
Department of Otolaryngology, was that a “second esophageal dilation was performed on June 8,
2003.” Plaintiff also alleged a different esophageal dilation by Dr. Rontal, also an alleged
member of the Department of Otolaryngology, that resulted in a torn esophagus. The standard of
care alleged in the notice did not address the June 8 dilation, but rather contained broad
allegations regarding the alleged failure of health care providers to timely and appropriately
diagnose and treat plaintiff’s condition in the emergency room on July 24 and 30, 2003, broad
allegations regarding postoperative care, and a general allegation that the “applicable standard of
care required the Health Care providers to avoid perforation during an esophageal dilation;
timely and appropriately appreciate Claimant’s complaints and symptoms, timely and
appropriately diagnosis and treat Claimant’s condition in the ER which would include, but is not
limited to, ordering appropriate films in an emergent and STAT manner . . . .”
Without a more exacting statement of the standard of care applicable to an
otolaryngologist, who previously performed an esophageal dilation as alleged in the notice, Dr.
Bradford would be left to guess at the basis of plaintiff’s claim. Examined in its entirety, the
notice was insufficient to inform Dr. Bradford of the standard of care applicable to her
circumstances, as required by MCL 600.2912b(4)(b). Cf. Gawlik v Rengachary, 270 Mich App
1, 10-11; 714 NW2d 386 (2006) (notice of intent inadequate where it generally encompassed all
caregivers and failed to explain what the physician should have done).
Plaintiff’s claim with respect to Dr. Ekbom, also an alleged member of the Department of
Otolaryngology, is even more vague, because the notice does not contain any particular factual
allegations against him. Plaintiff’s claims against Dr. Freer, an alleged member of the
Department of Emergency Medicine, similarly contains no specific factual allegations. Viewed
in conjunction with the standard of care that is generally directed at the health care providers
mentioned in the notice, the notice is inadequate to satisfy MCL 600.2912b(4)(b) with respect to
The factual basis of plaintiff’s claim with respect to Dr. DeFlorio, an alleged member of
the “Department of Emergency Department,” is more detailed. The notice indicates that it
relates to the events of July 30, 2003, in the emergency room:
Claimant returned to the Emergency Room on July 30, 2003 at
approximately 1:00 a.m. and again presented with extreme pain in her neck and
shoulders. Claimant was kept in the ER for approximately 17 hours during which
she had experienced progressive neurological deficit for which nothing was done.
Due to incomplete records, it is believed that Dr. DeFlorio attempted to spinal tap
2-3 times at some point during Claimant’s 17 hours in the ER for suspected
meningitis, for which he failed each time and left Claimant to excruciating pain.
Dr. DeFlorio then indicated that he was “needed elsewhere” and left Claimant to
continue to sit in the ER while Claimant continued to experience progressive
neurological deficit for which nothing was done. Specifically, Plaintiff was
losing mobility and control of her left arm which she had control of 17 hours ago,
prior to her walking into the ER of the University of Michigan Hospital.
Claimant repeatedly advised her treaters of her increasing inability to move her
left arm throughout her course in the ER. An MRI was finally taken sometime
approximately late evening on July 30, 2003, which showed massive infection. . .
. The next day, on July 31, 2003, Dr. Frank LaMarca performed a posterior
cervical fusion-vertex. . . . [Emphasis added.]
Further, the alleged standard of care contained some specific allegations directed at the
events of July 30, 2003:
The Health Care Providers should have also timely and appropriately
diagnosed and treated Claimant’s condition upon her second presentation to the
ER on July 30, 2003 wherein she had the same complaints of extreme and
unbearable pain in her neck and shoulders and was also experiencing progressive
neurological deficit over the course of approximately 17 hours. The applicable
standard of care required the Health Care providers to . . . timely and
appropriately diagnose and treat Claimant’s condition in the ER which would
include, but is not limited to, ordering appropriate film in an emergent or STAT
manner, order timely CBCs, order timely or emergent/STAT consults including
neurosurgery for a patient who was experiencing progressive neurological deficit,
obtain Claimant’s past medical history and consult known treaters of Claimant in
a timely fashion to understand and appreciate Claimant’s past medical history,
immediately order a STAT MRI and immediately take the Claimant to the
operating room given the presence of massive infection and cord compression.
The alleged manner in which the standard of care was breached also refers to the events
on July 30, 2003, and, in particular, alleges that there was a failure to “to timely obtain and
review results of CBC, MRI, neurosurgery consult, failure to be admitted or triaged while in the
ER instead of waiting 17 hours in an ER cubical [sic] during which nothing was done regarding
Claimant’s progressive neurological deficit . . . .”
The problem with the notice is that it does not indicate that Dr. DeFlorio was the only
physician to see plaintiff during her 17-hour stay in the emergency room or that he became
involved in her care for any purpose other than the attempted spinal taps. To the contrary,
plaintiff alleged that there were other unidentified “treaters.” In addition, the alleged standard of
care is not particularized to Dr. DeFlorio’s circumstances, or even emergency physicians in
general, but rather is directed at the “health care providers” mentioned in the notice. The notice
suggests that the same list of actions would apply to all health care providers who had contact
with plaintiff in the emergency room.
On the other hand, Dr. DeFlorio, as a medical professional, would presumably have ready
access to information about the case after being provided with notice of the claim against him.
Thus, it would be easy for him to comprehend the factual nature of the impending lawsuit.
Further, while the unique standard applicable to a particular defendant is an element of a
malpractice action, the presuit notice need not contain a perfect rendition of the applicable
standard of care. Roberts II, supra at 692-694.
Examining the notice in its entirety, we conclude that no guesswork is necessary for Dr.
DeFlorio to appreciate that the basis of the claim against him was that he should not have left
plaintiff sitting untreated and unattended in the emergency room; he should have taken some
action other than the attempted spinal taps. But without any particularization of which listed
actions in the alleged standard of care for health care providers apply to Dr. DeFlorio, the notice
is insufficient to inform him of what he did not do or should have done to comply with the
applicable standard of care. Because the notice examined in its entirety does not comport with
plaintiff’s responsibility to make a good-faith averment of all the requirements of the statute
pertaining to Dr. DeFlorio, we uphold the trial court’s determination that plaintiff failed to satisfy
Next, plaintiff claims that a defect in the notice required under MCL 600.2912b does not
prevent her from taking advantage of the presuit notice-tolling provision in MCL 600.5856.
Although plaintiff failed to present this legal issue to the trial court, we will consider plaintiff’s
argument because the trial court specifically held that a notice that does not comply with the
requirements set forth in MCL 600.2912b(4) does not toll the statute of limitations under MCL
600.5856(c). This Court may overlook preservation requirements to consider an issue that is
necessary to a proper resolution of the case. Laurel Woods Apartments v Roumayah, 274 Mich
App 631, 640; 734 NW2d 217 (2007).
First, we note that the trial court relied on MCL 600.5856(c) as amended by 2004 PA 87,
effective April 22, 2004. This statute was amended after the alleged malpractice in this case. As
amended, MCL 600.5856(c) provides that the statute of limitations is tolled
[a]t the time notice is given in compliance with the applicable notice period under
section 2912b, if during that period a claim would be barred by the statute of
limitations or repose; but in this case, the statute is tolled not longer than the
number of days equal to the number of days remaining in the applicable notice
period after the date notice is given.
Conversely, at the time of the alleged malpractice in this case, former MCL 600.5856(d)
provided that the statute of limitations is tolled
[i]f, during the applicable notice period under section 2912b, a claim would be
barred by the statute of limitations or repose, for not longer than a number of days
equal to the number of days in the applicable notice period after the date notice is
given in compliance with section 2912b.
In general, amendments to statutes of limitations apply prospectively. See Davis v State
Employees’ Retirement Bd, 272 Mich App 151, 155; 725 NW2d 56 (2006). But there is no
vested right in the running of a statute of limitation, except when it has completely run and the
action is barred. In re Straight’s Estate, 329 Mich 319, 325; 45 NW2d 300 (1951). Here, § 1 of
the amendatory act provides that it applies to civil actions filed after April 22, 2004, unless the
statute of limitations expired before that date. Thus, the amended statute applies to this case.
Nonetheless, we find no merit to plaintiff’s argument that the amended statute
substantively changed the effect of the presuit notice tolling provision. An unambiguous statute
is enforced according to its plain language. Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 66;
642 NW2d 663 (2002) (Roberts I). 2004 PA 87 did not change the substance of the presuit
notice tolling provision.
Plaintiff’s reliance on Kirkaldy v Rim, 478 Mich 581; 734 NW2d 201 (2007), as support
for how the presuit notice tolling provision in MCL 600.5856(c) should operate, is misplaced.
The issue in Kirkaldy involved application of the tolling provision in MCL 600.5856(a) under
the former version of the statute, before it was amended by 2004 PA 87. Under MCL
600.5856(a), tolling commences “[a]t the time the complaint is filed and a copy of the summons
and complaint are served on the defendant.” See Kirkaldy, supra at 584 n 4.4 Viewed in
conjunction with the requirement in MCL 600.2912d that the complaint be accompanied by an
affidavit of merit, our Supreme Court concluded that the “period of limitations is tolled when a
complaint and affidavit of merit are filed and served on the defendant” and that the tolling
continues, even if the affidavit is defective, until the presumptive validity of the affidavit is
successfully challenged in a subsequent judicial proceeding. Kirkaldy, supra at 585-586.
This case is distinguishable from Kirkaldy because in that case the plaintiff had
presumably filed a notice of intent in compliance with MCL 600.2912b, and the presuit notice
tolling provision in MCL 600.5856(c) was not at issue. See Boodt, supra at 564. And while this
Court recently concluded in Potter v McLeary (On Remand), 278 Mich App 279, 286; 748
NW2d 599 (2008), that the Supreme Court’s treatment of deficient affidavits of merit in Kirkaldy
applies by analogy to deficient notices of intent under MCL 600.2912b so as to permit a notice of
intent to toll the statute of limitations unless and until the notice is successfully challenged in a
judicial proceeding, this Court did not consider the specific presuit notice tolling provision in
MCL 600.5856(c). Further, this Court did not apply our Supreme Court’s holding in Roberts I,
supra at 67, that compliance with MCL 600.2912b is required to toll the statute of limitations
because the plain language of MCL 600.5856 requires the plaintiff to comply with the provisions
of MCL 600.2912b in order to toll the limitations period. Although MCL 600.5856 was
amended after our Supreme Court’s decision, because the substantive requirement of the presuit
notice tolling provision was not changed, the holding in Roberts I that compliance with MCL
600.2912b is required to toll the statute of limitations remains valid, binding law.5
We are bound to follow a published opinion of this Court establishing a rule of law that
our Supreme Court or a special panel of this Court has not reversed or modified. MCR
7.215(J)(1). But under the doctrine of stare decisis, this Court must follow decisions of our
Supreme Court. People v Hall, 249 Mich App 262, 270; 643 NW2d 253 (2002), remanded on
other grounds 467 Mich 888 (2002). “[I]t is the Supreme Court’s obligation to overrule or
The amended version of MCL 600.5856(a) provides that tolling commences “[a]t the time the
complaint is filed, if a copy of the summons and complaint are served on the defendant within
the time set forth in the supreme court rules.”
As a practical matter, we note that MCL 600.2912b establishes an interval of time in which a
potential plaintiff is not permitted to sue for medical malpractice. If the interval ends before the
statute of limitation expires, the presuit notice tolling provision in MCL 600.5856 is of no
consequence. See Mayberry v Gen Orthopedics, PC, 474 Mich 1, 8-9; 704 NW2d 69 (2005).
modify case law if it becomes obsolete, and until this Court takes such action, the Court of
Appeals and all lower courts are bound by that authority.” Boyd v W G Wade Shows, 443 Mich
515, 523; 505 NW2d 544 (1993), overruled on other grounds Karaczewski v Farbman Stein &
Co, 478 Mich 28 (2007). We conclude that Roberts I remains valid precedent. See Boodt, supra
at 561-563. Consequently, we reject plaintiff’s claim that the defective notice of intent was
sufficient to toll the statute of limitations with respect to Drs. Bradford, Ekbom, Freer, and
We also reject plaintiff’s claim that she should have been afforded an opportunity to file
an amended notice of intent to correct any deficiency in the notice of intent mailed on July 20,
2005, pursuant to MCL 600.2301. Plaintiff has failed to establish that she preserved this issue by
presenting it to the trial court. See Peterman v Dep’t of Natural Resources, 446 Mich 177, 183;
521 NW2d 499 (1994).
Even if we were to overlook this deficiency on appeal, Laurel Woods Apartments, supra
at 640, we would reject plaintiff’s argument because MCL 600.2301 has no application to the
presuit notice required under MCL 600.2912b. Boodt, supra at 563 n 4. Dismissal, with
prejudice, is an appropriate remedy when a period of limitations has expired. See Scarsella v
Pollak, 461 Mich 547, 549; 607 NW2d 711 (2000). Prejudice to a defendant is not a factor in
applying the relevant medical malpractice statutes. See Burton v Reed City Hosp Corp, 471
Mich 745, 753; 691 NW2d 424 (2005).
Because the Legislature has not authorized retroactive amendment of the presuit notice to
toll the statute of limitations, plaintiff has not shown any error in the trial court’s failure to afford
her an opportunity to amend the notice. Thus, plaintiff has not demonstrated any basis for
disturbing the trial court’s determination that her malpractice claims against Drs. Bradford,
Ekbom, Freer, and DeFlorio were time-barred. We affirm the trial court’s decision granting their
motion for summary disposition and dismissing plaintiff’s claims against them with prejudice.
V. Malpractice Claim Against Dr. Krafcik
The trial court’s grant of summary disposition in favor of Dr. Krafcik was based on
plaintiff’s failure to file an affidavit of merit with the complaint that complied with MCL
600.2912d. Specifically, plaintiff failed to file an affidavit comporting with Dr. Krafcik’s proper
board certification as an internal medicine specialist.
On appeal, plaintiff does not challenge the trial court’s ruling. Plaintiff only asserts that
the trial court erred in dismissing her claim with prejudice on the basis of Kirkaldy. Although we
find merit to plaintiff’s argument, we will not reverse a trial court’s decision if the right result
was reached, albeit for the wrong reason. Netter v Bowman, 272 Mich App 289, 308; 725 NW2d
Here, the same deficiency in the July 20, 2005, presuit notice that exists with respect to
Drs. Bradford, Ekbom, Freer, and DeFlorio, also exists with respect to Dr. Krafcik. The only
allegation in the notice with respect to Dr. Krafcik was that he was a member of the Department
of Emergency Medicine. The notice was insufficient to toll the statute of limitations under MCL
600.5856(c). As with plaintiff’s claims against Drs. Bradford, Ekbom, Freer, and DeFlorio,
dismissal with prejudice was appropriate because the period of limitations had expired.
Wilder, J., concurred.
/s/ Jane E. Markey
/s/ Kurtis T.Wilder