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.
WHITE, J. (concurring in part and dissenting in part).
I agree that the circuit court did not err by denying plaintiff’s motion to amend her
complaint to allege fraudulent concealment. Although amendment normally should be
permitted, and the factual support then tested by summary disposition, in the instant case plaintiff
provided the court, through her attorney’s affidavit, with the factual basis for her claim of
fraudulent concealment, and the court did not err in rejecting that basis as inadequate. Thus, I
agree with the affirmance with respect to defendants first identified by name in the amended
notice of intent (NOI). I also agree that the NOI is insufficient as to Doctors Bradford and
Ekbom, the otolaryngologists.
I disagree with respect to Doctors Freer and DeFlorio, the emergency-room physicians.
Read in its entirety, the NOI sufficiently states that the emergency-room doctors violated the
standard of care by failing to order appropriate films in an emergent or stat manner, order timely
complete blood counts, order timely or emergent/stat consultations, including neurosurgery in
view of plaintiff’s progressive neurological deficit, obtain plaintiff’s past medical history and
consult her treaters, and order a stat magnetic resonance imaging and immediately take plaintiff
to surgery given the presence of massive infection and cord compression.
The claimed deficiency in the NOI is its failure to specifically state the standard of care
applicable to each defendant. The NOI does, however, state a specific standard of care. In
contrast to the tautological statement involved in Roberts v Mecosta Co Gen Hosp (After
Remand) 470 Mich 679; 684 NW2d 711 (2004) (Roberts II)—specifically, that the standard of
care required that the health care professionals render competent advice and assistance in the
care and treatment of the plaintiff and render same in accordance with the standard of care—the
NOI here set forth the specific actions required to comply with the standard of care. While the
NOI referred to “Health Care Professionals” rather than to emergency-room physicians, the
statement of facts, read together with the statement of the applicable standard of care, sufficiently
identifies the standard applicable to the emergency-room physicians.
I agree with plaintiff that, under the amended version of MCL 600.5856(c), giving notice
in compliance within the applicable notice period under MCL 600.2912b operates to toll the
statute of limitations if the claim would be barred during that period. However, § 5856(c)
expressly provides that the statute of limitations is tolled for a period not longer than the number
of days remaining in the notice period. Hence, plaintiff makes the additional argument that the
filing of the complaint and affidavits of merit further tolled the running of the statute of
limitations under § 5856(a) and Kirkaldy v Rim, 478 Mich 581; 734 NW2d 201 (2007), until the
claim was dismissed, and that the dismissal should have been without prejudice.
In Boodt v Borgess Med Ctr, 481 Mich 558; 751 NW2d 44 (2008), decided after this case
was submitted, our Supreme Court declined to apply Kirkaldy in the context of a defective NOI
and rejected the argument that the filing of a complaint and affidavit after giving a defective NOI
tolls the statute of limitation under § 5856(a). However, Boodt is distinguishable because in the
instant case plaintiffs filed an amended NOI1 within the statutory limitations period.2 To be sure,
because the complaint was filed just days after the amended NOI was sent, it was premature.
The first amended NOI, sent January 18, 2005, was far more detailed and specific than the
The original NOI was sent with at least six days remaining in the statutory limitations period
and thus, even if inadequate, under the amended tolling provision of § 5856(c), it tolled the
statute of limitations for the time remaining in the notice period. The amended NOI was sent
182 days later and was thus sent within the statutory limitations period.
However, the remedy for this is dismissal without prejudice. Dorris v Detroit Osteopathic Hosp,
460 Mich 26; 594 NW2d 455 (1999). Thus, because the first NOI tolled the statute, the second
NOI was timely; if the second NOI was sufficient, the action was timely but premature, and the
dismissal should have been without prejudice, notwithstanding Boodt.3 I would remand for
determination whether the amended NOI was sufficient.4
/s/ Helene N. White
Section 2912b(6) is not implicated because we are not here concerned with tacking.
The amended NOI cannot under any circumstances save the action against the doctors first
named in it because the original NOI did not toll the statute with respect to them.