LISA ROBERTS V MECOSTA COUNTY GENERAL HOSPITAL
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED JULY 21, 2004
LISA ROBERTS,
Plaintiff-Appellee,
o. 122312
N
v
MICHAEL ATKINS, M.D.,
Defendant-Appellant,
and
MECOSTA COUNTY GENERAL HOSPITAL,
GAIL A. DESNOYERS, M.D., BARB
DAVIS, and OBSTETRICS AND
GYNECOLOGY OF BIG RAPIDS, P.C.,
formerly known as GUNTHER, DESNYOYERS
& MEKARU,
Defendants.
_______________________________
LISA ROBERTS,
Plaintiff-Appellee,
v
No. 122335
GAIL A. DESNOYERS, M.D., BARB
DAVIS, OBSTETRICS AND GYNECOLOGY
OF BIG RAPIDS, P.C., formerly
known as GUNTHER, DESNOYERS &
MEKARU,
Defendants-Appellants,
and
MICHAEL ATKINS, M.D., and
MECOSTA COUNTY HOSPITAL,
Defendants.
_______________________________
LISA ROBERTS,
Plaintiff-Appellee,
v
No. 122338
MECOSTA COUNTY GENERAL HOSPITAL,
Defendant-Appellant,
and
GAIL A. DESNOYERS, M.D., MICHAEL
ATKINS, M.D., BARB DAVIS, and
OBSTETRICS AND GYNECLOGOY OF
BIG RAPIDS, P.C., formerly known
as GUNTHER, DESNOYERS & MEKARU,
Defendants.
_______________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
INTRODUCTION
This medical malpractice case is before us for the
second time.
663
(2002)
limitations
unless
In Roberts v Mecosta, 466 Mich 57; 642 NW2d
(Roberts
could
notice
was
I),
not
be
given
we
held
tolled
in
that
the
statute
under
MCL
600.5856(d)
compliance
with
all
of
the
provisions of MCL 600.2912b, and that § 2912b imposed no
2
requirement on defendants to object to the sufficiency of
plaintiff’s
notices
of
intent
before
the
filing
of
the
complaint.
Because the Court of Appeals had not addressed
the trial court’s conclusion that plaintiff’s notices of
intent did not comply with § 2912b, we remanded the matter
to that Court for further proceedings.
On remand, the
Court of Appeals held that plaintiff’s notices of intent
strictly complied with the provisions of § 2912b.
We
conclude
intent
are
therefore,
the
statute of limitations was not tolled under § 5856(d).
The
deficient
in
that
several
plaintiff’s
respects
notices
and
that,
of
unambiguous language of MCL 600.2912b(4) requires a medical
malpractice plaintiff to include in her notice of intent a
statement of (1) the factual basis for the claim, (2) the
applicable
standard
of
practice
or
care
alleged
by
the
claimant, (3) the manner in which it is claimed that the
applicable standard of practice or care was breached, (4)
the alleged action that should have been taken to comply
with the alleged standard, (5) the manner in which it is
claimed that the breach was the proximate cause of the
injury claimed in the notice, and (6) the names of all
professionals
and
facilities
the
claimant
is
notifying.
Although the notices of intent in this case are not wholly
deficient with regard to the above requirements, they are
3
nonetheless not in full compliance with § 2912b because
they fail to properly set forth allegations regarding the
standard
of
practice
or
care
applicable
to
each
named
defendant, allegations regarding the manner in which it was
claimed that defendants breached the applicable standards
of practice or care, the alleged actions that defendants
should
have
taken
standards,
or
defendants’
in
breaches
order
allegations
of
to
of
the
satisfy
the
the
manner
standards
alleged
in
which
constituted
the
proximate cause of plaintiff’s injury.
Because
unambiguous
decision
of
plaintiff
requirements
the
Court
did
not
of
of
§
fully
comply
2912b(4),
we
Appeals
and
we
with
the
reverse
the
reinstate
the
judgments of the trial court granting defendants’ motions
for summary disposition.
I. FACTS
AND
PROCEDURAL HISTORY
We set forth the following recitation of facts in our
prior opinion:
Plaintiff was pregnant and sought treatment
because she was experiencing severe pain in her
abdomen. She was diagnosed as having suffered a
spontaneous abortion and a D & C [dilation and
curettage] was performed. Plaintiff alleges that
it was later discovered that she had actually
been suffering from an ectopic pregnancy, not a
spontaneous abortion, and that her left fallopian
tube had burst.
Emergency surgery was performed
to
remove
plaintiff's
left
fallopian
tube.
4
Plaintiff claims that as a result of the second
operation, she can no longer bear children
because her right fallopian tube had previously
been removed.
Plaintiff
decided
to
pursue
a
medical
malpractice
claim,
alleging
that
defendants
misdiagnosed
her
condition
and
subsequently
performed an unnecessary operation.
Plaintiff served a notice of intent on
defendant Mecosta County General Hospital on
September
19,
1996,
and
on
the
remaining
defendants on September 23, 1996.
Serving these
notices constituted plaintiff's attempt to (1)
meet
the
notice
requirements
for
medical
malpractice actions prescribed by MCL 600.2912b
and (2) toll the statute of limitations pursuant
to MCL 600.5856(d).
After the waiting period required under MCL
600.2912b
had
passed,
plaintiff
filed
her
complaint.
Thereafter, defendants filed motions
for summary disposition.
Defendants argued,
inter alia, that plaintiff's claims were barred
by the statute of limitations because the notices
of intent failed to comply with the requirements
outlined in MCL 600.2912b(4).
Specifically,
defendants asserted that plaintiff's notices
failed to sufficiently state the standard of
care, the manner in which the standard was
breached, the action the defendants should have
taken, and the proximate cause of the injury.
Defendants advanced the position that, since the
notices
were
insufficient,
the
period
of
limitation was not tolled under MCL 600.5856(d)
and had therefore expired.
The trial court
granted the motions for summary disposition.
The Court of Appeals reversed and remanded,
holding that defendants had waived their ability
to challenge plaintiff's failure to comply with
the notice requirements because they did not
raise their objections before the time the
complaint was filed . . . . [Roberts I, supra at
59-61.]
5
This
Court
reversed
the
decision
of
the
Court
of
Appeals, holding that (1) the statute of limitations was
not tolled unless notice was given in compliance with all
the provisions of § 2912b, (2) that § 2912b imposed no duty
on defendants to challenge any deficiencies in the notices
of intent before the complaint was filed, and (3) that
defendants
were
not
required
to
assert
the
statute
of
limitations defense or to challenge the sufficiency of the
notices
of
intent
Roberts I, supra.
until
after
plaintiff
filed
suit.
We “express[ed] no opinion concerning
plaintiff’s compliance or noncompliance with MCL 600.2912b,
an issue that the Court of Appeals declined to answer.”
Id. at 71 n 8.
We remanded the matter to the Court of
Appeals to address this issue.
Id. at 71.
On remand, the Court of Appeals held that plaintiff’s
notices of intent strictly complied with the requirements
of § 2912b.1
252 Mich App 664, 666; 653 NW2d 441 (2002).
The panel opined that plaintiff’s notices of intent set
forth
a
proper
sufficient,
even
factual
if
not
basis
for
accurate,
her
allegation
applicable standard of practice or care.
1
claim
as
and
to
a
the
Id. at 667-670.
The panel declined to address plaintiff’s alternative
argument that her notices substantially complied with §
2912b(4) and that substantial compliance was sufficient.
6
The
panel
further
concluded
that,
by
reference
to
the
recitations of the factual basis for the claim, the notices
of intent set forth the manner in which it was claimed that
the applicable standards of care were breached, the alleged
actions that should have been taken, and the manner in
which it was alleged that the breaches of the standards of
care were the proximate cause of plaintiff’s injury.
The
panel
set
likewise
concluded
that
the
notices
properly
forth the names of all health professionals and facilities
that plaintiff notified in relation to the claim.
II.
This
case
STANDARD
involves
OF
REVIEW
questions
of
interpretation, which are reviewed de novo.
supra at 62.
statutory
Roberts I,
We review the trial court’s grant of summary
disposition de novo.
Id.
III.
ANALYSIS
A. RELEVANT STATUTES
MCL
600.2912b(1)2
precludes
a
medical
malpractice
claimant from commencing suit against a health professional
2
MCL 600.2912b(1) provides:
Except
as
otherwise
provided
in
this
section, a person shall not commence an action
alleging medical malpractice against a health
(continued…)
7
or health facility unless written notice is provided to
that
professional
commenced.
claimant
or
After
is
facility
providing
required
to
wait
before
the
for
the
written
the
action
notice,
applicable
is
the
notice
period to pass before filing suit.3
The
two-year
malpractice
actions
period
is
of
tolled
limitation
during
the
for
medical
notice
period
“after the date notice is given in compliance with section
2912b.”
MCL 600.5856(d) (emphasis supplied).
Thus, in
order to toll the limitation period under § 5856(d), the
claimant is required to comply with all the requirements of
§ 2912b.
Roberts I, supra at 64.
(continued…)
professional or health facility unless the person
has given the health professional or health
facility written notice under this section not
less
than
182
days
before
the
action
is
commenced. [Emphasis supplied.]
3
The claimant generally may not commence an action for
182 days after providing the notice of intent. Exceptions
to this general rule are set forth in MCL 600.2912b(3)
(providing that under certain circumstances the 182-day
notice period is shortened to 91 days), MCL 600.2912b(8)
(providing that the claimant may file an action after 154
days if no response to the notice is received as
contemplated by MCL 600.2912b[7]), and MCL 600.2912b(9)
(permitting the claimant to file the action immediately if,
at any time during the applicable notice period, the
professional or facility named in the notice informs the
claimant in writing that the professional or facility does
not intend to settle the claim within the applicable notice
period).
8
MCL 600.2912b(4) enumerates the specific topics that
the claimant is required to address in the written notice
of intent:
The notice given to a health professional or
health facility under this section shall contain
a statement of at least all of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or
care alleged by the claimant.
(c) The manner in which it is claimed that
the applicable standard of practice or care was
breached by the health professional or health
facility.
(d) The alleged action that should have been
taken to achieve compliance with the alleged
standard of practice or care.
(e) 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.
(f) The names of all health professionals
and health facilities the claimant is notifying
under this section in relation to the claim.
[Emphasis supplied.]
It is against this unambiguous statutory backdrop that we
must
determine
the
adequacy
of
plaintiff’s
notices
of
intent.
B.
PLAINTIFF’S NOTICES
OF
INTENT DO NOT COMPLY
WITH
§ 2912b(4)
Plaintiff provided the following notice of intent to
defendant Mecosta County General Hospital:
9
1.
FACTUAL BASIS FOR CLAIM
This is a claim for negligence which
occurred on October 4, 1994, at Mecosta County
General Hospital.
It is claimed that on said
date while pregnant with her first child,
Claimant presented herself to Mecosta County
General Hospital complaining of severe pain.
At
that time a diagnosis of a spontaneous abortion
was made and a D and C was performed.
Claimant
was sent home at that time.
Over the course of the next few days
Claimant
continued
to
experience
pain
and
cramping and, on October 7, 1994, was again seen
at Mecosta County General Hospital. Claimant was
told that the pain she was experiencing was
cramps from the D and C she had done and was sent
home.
Claimant returned to the hospital on October
8, 1994, wherein it was discovered that Claimant
had not had a spontaneous abortion but had an
ectopic pregnancy in her left tube which had
burst.
Emergency surgery was performed at that
time and her left tube was removed.
Claimant
had
her
right
tube
removed
approximately ten years ago and, as a result of
the negligence set forth above, she is now unable
to have children.
2.
THE APPLICABLE STANDARD OF PRACTICE OR CARE
ALLEGED
Claimant
contends
that
the
applicable
standard of care required that Mecosta County
General Hospital provide the claimant with the
services of competent, qualified and licensed
staff of physicians, residents, interns, nurses
and other employees to properly care for her,
render competent advice and assistance in the
care and treatment of her case and to render same
in accordance with the applicable standard of
care.
10
3.
THE MANNER IN WHICH IT IS CONTENDED THAT THE
APPLICABLE STANDARD OF CARE WAS BREACHED
See paragraph 2 above.[4]
4.
THE ACTION THAT SHOULD HAVE BEEN TAKEN TO
ACHIEVE COMPLIANCE WITH THE STANDARD OF PRACTICE
OR CARE
See paragraph 2 above.
5.
THE MANNER IN WHICH THE BREACH
PROXIMATE CAUSE OF CLAIMED INJURY
WAS
THE
See paragraph 2 above.
6.
NAMES OF HEALTH PROFESSIONALS, ENTITIES, AND
FACILITIES NOTIFIED
Mecosta
agents and
thereof.
County General Hospital and all
employees, actual or ostensible,
Plaintiff subsequently provided the following notice
of
intent
to
the
remaining
Gynecology
of
Big
Rapids,
obstetrician,
assistant,
professional
and
both
Barb
of
P.C.;
Davis,
whom
corporation;
defendants
were
and
Gail
P.A.C.,
(Obstetrics
DesNoyers,
a
an
physician’s
affiliated
Michael
&
Atkins,
with
M.D.,
the
a
physician who treated plaintiff at the hospital’s emergency
room):
4
Plaintiff contends that the references to “paragraph
2” in the notice are typographical errors, and that they
should be viewed as referring to paragraph 1.
11
1.
FACTUAL BASIS FOR CLAIM
This is a claim for negligence which
occurred on October 4, 1994, at Obstetrics &
Gynecology of Big Rapids. It is claimed that on
said date, while pregnant with her first child,
Claimant presented herself to Barb Davis, PAC,
Dr. Michael Atkins, and Dr. Gail DesNoyers
complaining
of
severe
abdominal
pain
and
bleeding.
At that time a diagnosis of a
spontaneous abortion was made and a D & C was
performed at Mecosta County General Hospital.
Claimant was sent home at that time, despite Dr.
DesNoyer’s [sic] knowledge of Claimant’s history
of a prior ectopic pregnancy.
Over the course of the next few days,
Claimant
continued
to
experience
pain
and
cramping and, on October 7, 1994, was seen at
Mecosta County General Hospital by Dr. Michael
Atkins. Claimant was told that the pain she was
experiencing was cramps from the D & C she had
done and was sent home.
Claimant returned to the hospital on October
8, 1994, wherein it was discovered that Claimant
had not had a spontaneous abortion but had an
ectopic pregnancy in her left tube which had
burst.
Emergency surgery was performed at that
time and her left tube was removed.
Claimant
had
her
right
tube
removed
approximately ten years ago and, as a result of
the negligence set forth above, she is now unable
to have any children.
2.
THE APPLICABLE STANDARD OF PRACTICE OR CARE
ALLEGED
Claimant
contends
that
the
applicable
standard of care required that Obstetrics &
Gynecology of Big Rapids, Dr. Gail DesNoyers and
Barb Davis, PAC, provide the Claimant with the
services of competent, qualified and licensed
staff of physicians, residents, interns, nurses
and other employees to properly care for her,
render competent advice and assistance in the
12
care and treatment of her case and to render same
in accordance with the applicable standard of
care.
3.
THE MANNER IN WHICH IT IS CONTENDED THAT THE
APPLICABLE STANDARD OF PRACTICE OR CARE WAS
BREACHED
Claimant claims that Obstetrics & Gynecology
of Big Rapids, Dr. Gail DesNoyers and Barb Davis,
PAC, failed to provide her with the applicable
standard of practice and care outlined in
paragraph 2 above.
4.
THE ACTION THAT SHOULD HAVE BEEN TAKEN TO
ACHIEVE COMPLIANCE WITH THE STANDARD OF PRACTICE
OR CARE
See paragraph 2 above.
5.
THE MANNER IN WHICH THE BREACH
PROXIMATE CAUSE OF CLAIMED INJURY
WAS
THE
See paragraph 2 above.
6.
NAMES OF HEALTH PROFESSIONALS, ENTITIES, AND
FACILITIES NOTIFIED
Obstetrics & Gynecology of Big Rapids, Gail
DesNoyers, M.D., Michael Atkins, M.D., Barb
Davis, PAC, and all agents and employees, actual
or ostensible, thereof.
Plaintiff’s
notices
of
intent
primarily
set
forth
facts demonstrating an unfavorable outcome——the fact that
plaintiff had suffered an ectopic pregnancy and a ruptured
“left tube” that was not diagnosed by defendants.
Although
the notices satisfy some of the requirements of § 2912b,
they do not satisfy all of those requirements.
Missing
from the notices are (1) a statement of the particular
13
standard of practice or care applicable to each of the
various defendants, (2) statements regarding the manner in
which it was claimed that defendants breached the alleged
standards of practice or care, (3) statements alleging the
actions that should have been taken by defendants, and (4)
statements
regarding
the
manner
in
which
defendants’
breaches of the standards of practice or care were alleged
to
have
constituted
the
proximate
cause
of
plaintiff’s
injury.
1.
MCL 600.2912b(4)(a): FACTUAL BASIS
We agree with the Court of Appeals that the notices of
intent, which generally describe the events that led to
plaintiff’s alleged injury, properly set out the factual
basis for plaintiff’s claim.
2.
MCL 600.2912b(4)(b): STANDARD
OF
PRACTICE
OR
CARE
The Court of Appeals panel declined to find fault with
plaintiff’s statements of the standard of care, noting that
(1) “defendants direct us to no authority to establish that
the
stated
standard
of
care
is
incorrect,
nor
do
they
direct us to what they believe is the proper standard of
care,” and (2) “[t]he statute does not require that the
claimant accurately or correctly state the standard of care
nor does it declare the notice to be inadequate if the
14
plaintiff is incorrect in stating the standard of care.”
252 Mich App 670.
With
respect
plaintiff’s
burden
to
the
panel’s
to
establish
first
point,
compliance
with
it
§
is
2912b
and, in turn, to establish entitlement to application of
the notice tolling provision, § 5856(d).
See Roberts I,
supra at 64.
With
respect
to
the
panel’s
second
point,
we
acknowledge that the notice of intent is provided at the
earliest
stage
of
a
medical
malpractice
proceeding.
Indeed, the notice must be provided before the action can
even
be
commenced.
At
the
notice
stage,
discovery
as
contemplated in our court rules, MCR 2.300 et seq., has not
been commenced, and it is likely that the claimant has not
yet been provided access to the records of the professional
or
facility
named
in
the
notice.5
It
is
therefore
reasonably anticipatable that plaintiff’s averments as to
the applicable standard may prove to be “inaccurate” or
erroneous
following
formal
discovery;
moreover,
it
is
probable that the alleged standard of care will be disputed
5
See MCL 600.2812b(5) (requiring the professional or
facility receiving notice to allow the claimant access to
all medical records related to the claim that are in the
control of the professional or facility within 56 days
after receipt of the notice).
15
by the defendants.6
claimant
is
not
omniscience.7
claimant
make
In light of these circumstances, the
required
However,
a
to
what
good-faith
craft
is
effort
her
required
to
aver
notice
is
the
that
with
the
specific
standard of care that she is claiming to be applicable to
each particular professional or facility that is named in
the notice.8
6
Indeed, the applicable standard of practice or care
is often a hotly disputed matter in a medical malpractice
action, and opposing expert witnesses are likely to
disagree regarding the particular standard to which a
defendant should be held.
7
The statute requires only that the claimant set forth
particular allegations and claims regarding the applicable
standard of care, breach, etc.
Accordingly, while the
claimant must set forth allegations in good faith, in a
manner that is responsive to the specific queries posed by
the statute, and with enough detail to allow the potential
defendants to understand the claimed basis of the impending
malpractice action, the claimant is not required ultimately
to prove that her statements are “correct” in the legal
sense.
8
The phrase “standard of practice or care” is a term
of art in the malpractice context, and the unique standard
applicable to a particular defendant is an element of a
medical malpractice claim that must be alleged and proven.
Cox v Flint Bd of Hosp Mgrs, 467 Mich 1, 10; 651 NW2d 356
(2002).
The applicable standard is governed either by
statute (see, for example, MCL 600.2912a[1], which sets
forth the particular proofs that a malpractice plaintiff
must present with respect to a defendant’s “standard of
practice or care,” depending on whether the defendant is a
general practitioner or a specialist) or, in the absence of
a statutory standard, by the common law. Cox, supra at 5,
20.
The standard of practice or care that is applicable,
for example, to a surgeon would likely differ in a given
(continued…)
16
Here,
alleged
several
to
have
different
engaged
in
medical
medical
caregivers
malpractice.
were
Yet,
rather than stating an alleged standard of practice or care
for
each
of
professional
assistant,
the
various
corporation,
and
an
an
defendants——a
obstetrician,
emergency
room
hospital,
a
a
physician’s
physician——plaintiff’s
notices of intent allege an identical statement applicable
to all defendants9 in response to § 2912b(4)(b):
[T]he applicable standard of care required
that [the hospital, the P.C., Desnoyers, and
Davis] provide the Claimant with the services of
competent,
qualified
and
licensed
staff
of
physicians, residents, interns, nurses and other
employees to properly care for her, render
competent advice and assistance in the care and
treatment of her case and to render same in
accordance with the applicable standard of care.
With
respect
corporation,
applicable
this
to
the
hospital
statement
specifically
to
does
a
and
the
not
allege
hospital
or
professional
a
standard
professional
corporation as opposed to any other healthcare professional
or facility.
Moreover, this statement fails to indicate
whether plaintiff was alleging that these defendants were
(continued…)
set of circumstances from the standard applicable to an
OB/GYN or to a nurse.
9
Notably, no statement of an alleged standard of
practice or care is provided with respect to defendant
Atkins, the emergency room doctor.
17
vicariously
appears
that
or
from
the
directly
liable
plaintiff’s
hospital
and
to
complaint
the
her.10
that
Although
she
professional
is
it
claiming
corporation
are
vicariously liable for the negligence of their agents, the
notices
of
intent
implied
that
plaintiff
alleged
direct
negligence against these defendants for negligently hiring
or negligently granting staff privileges to the individual
defendants.
standard
Thus, plaintiff’s notices neither alleged a
specifically
applicable
facilities, nor did they
defendants
that
to
the
defendant
serve as adequate notice to these
plaintiff
planned
to
proceed
under
a
vicarious liability theory at trial.
The section of plaintiff’s alleged standard of care
that
appears
to
be
relevant
to
individual
defendants
DesNoyers and Davis states that
the applicable standard of care required that
. . .
[they]
render
competent
advice
and
assistance in the care and treatment of her case
and to render same in accordance with the
applicable standard of care.
Thus, in response to the statutory query, “What is the
applicable
standard
or
practice
10
or
care
alleged
by
the
See Cox, supra at 11 (“A hospital may be 1) directly
liable for malpractice, through claims of negligence in
supervision of staff physicians as well as selection and
retention of medical staff, or 2) vicariously liable for
the negligence of its agents.”).
18
claimant?”,
plaintiff
has
essentially
answered
in
part:
“The standard of care required that defendants adhere to
the
standard
of
care.”
Obviously,
this
statement
is
tautological and unresponsive, and it cannot be viewed as
minimally
compliant
with
§
2912b(4)(b).
The
alleged
standard also observes that defendants DesNoyers and Davis
were
required
“render
to
competent
“properly
advice
care
and
for”
plaintiff
assistance.”
Such
and
to
general
averments, however, are not adequately responsive to the
statutory
requirement
that
the
claimant
allege
an
applicable standard of practice or care relevant to the
defendant.11
Again,
plaintiff
was
not
required
to
provide
a
statement of alleged standards of care or practice that
11
The dissent argues that nowhere in § 2912b(4) does
the Legislature require that a plaintiff allege a “standard
applicable specifically” to each defendant and, therefore,
neither should this Court. Post at 15-16.
However, as
explained in n 8, the phrase “standard of practice or care”
is a term of art.
Proof of the standard of care is
required in every medical malpractice lawsuit, and the
Legislature has chosen to require a plaintiff to address
standard of care issues in the notice of intent.
Under a
proper understanding of this term, the standard applicable
to one defendant is not necessarily the same standard
applicable to another defendant.
See Cox, supra at 10.
Thus, we are attempting to do nothing more than interpret
the Legislature’s requirement in § 2912b(4)(b)—that a
plaintiff provide a "statement" regarding the applicable
“standard of practice or care” alleged.
19
might ultimately be proven, after discovery and trial, to
be
correct
and
accurate
in
every
respect.
However,
plaintiff was required to make a good-faith averment of
some particularized standard for each of the professionals
and facilities named in the notices.12
We conclude that
plaintiffs’ notices fail to comply with § 2912b(4)(b) with
respect to each defendant.
3.
In
response
MCL 600.2912b(4)(c): BREACH
to
§
2912b(4)(c),
which
requires
a
claimant to state “[t]he manner in which it is claimed that
the applicable standard of practice or care was breached,”
plaintiff’s notice to the hospital states “See paragraph 2
12
We note that in some cases the burden of explication
under § 2912b(4)(b) will be minimal.
For example,
allegations that a physician has extracted the wrong tooth,
amputated the wrong limb, or left a surgical instrument
embedded in a patient’s body cavity would give rise only to
a slight burden of articulation of the standard of care
under § 2912b(4)(b). Under such circumstances it would be
obvious to a casual observer that the standard of care
would require the physician to extract the correct tooth,
amputate the correct limb, or properly account for all
surgical instruments.
However, in the instant case,
plaintiff’s allegations are based on an alleged failure to
diagnose an ectopic pregnancy and nothing more.
Whether
the failure to diagnose this condition constituted a breach
of the standard of care, in contrast to the above examples,
is not obvious from the face of the allegations.
Accordingly, plaintiff was required to provide a more
exacting statement of the standard of care and of the
manner in which it was breached.
20
above.”
The notice provided to the remaining defendants13
states:
Claimant claims that Obstetrics & Gynecology
of Big Rapids, Dr. Gail DesNoyers and Barb Davis,
PAC, failed to provide her with the applicable
standard of practice and care outlined in
paragraph 2 above.
The
Court
of
Appeals
panel
held
that
the
notices
complied with § 2912b(4)(c):
If we look only to the statements in
paragraphs two and three of the notices, they
arguably
do
not
comply
with
the
statute,
particularly with respect to the individual
defendants.
However, nothing in the statute
requires that the notice of intent be in a
particular format or that each of the six
statutory
items
be
separately
listed
or
identified.
If we examine the respective first
paragraphs of the notices (the factual basis for
the claim), we do find a statement of the manner
in which plaintiff claims the standard of
practice or care was breached. Specifically, the
notices clearly state that the medical personnel
incorrectly diagnosed a spontaneous abortion
rather than an ectopic pregnancy, resulting in
the loss of plaintiff's only remaining fallopian
tube, thus rendering her sterile. [252 Mich App
672.]
We agree that nothing in § 2912b(4) requires that the
notice be in any particular format.
however,
clearly
require
the
13
The statute does,
claimant
to
provide
“a
As with the statement of the applicable standard of
care, the notice contains absolutely no statement with
respect to a breach of the standard of care by defendant
Atkins.
21
statement”
of
each
of
the
enumerated
categories
of
information, and we disagree with the panel’s conclusion
that the required information need not be “separately . . .
identified.”
readily
Certainly, the statement must identify, in a
ascertainable
manner,
the
specific
information
mandated by § 2912b(4).
The
notices
defendants
fail
breached
to
the
identify
applicable
how
the
standards
various
of
care.
Here, the hospital’s notice of intent refers to paragraph
2, in which the alleged standard of practice or care is set
out.
The
notice
of
defendants
states
excluded,
“failed
applicable
standard
intent
that
to
of
applicable
defendants,
to
the
remaining
defendant
provide
[plaintiff]
practice
and
care.”
Atkins
with
the
In
both
instances, plaintiff has stated, in essence: “Defendants
breached the standard of care by breaching the standard of
care.”
Such a circular and unresponsive assertion is not
minimally
compliant
with
plaintiff
provide
statement
a
the
statutory
of
the
mandate
manner
in
that
which
defendants breached the applicable standards of care.14
14
At oral argument, plaintiff’s counsel conceded that
plaintiff’s notice merely stated, in essence, that “the
manner in which [the standard of care] was breached is the
fact that it was breached,” and counsel took the untenable
(continued…)
22
We
are
also
unable
to
discern
in
the
paragraphs
setting forth the factual basis for the claim any statement
of the manner in which the standards of care were breached.
The notices indicate that plaintiff complained of severe
pain,
was
diagnosed
with
a
miscarriage,
underwent
a
dilation and curettage procedure, was sent home, returned
to the hospital four days later, was diagnosed with an
ectopic
“left
pregnancy,
tube.”
and
underwent
Although
these
surgery
are
to
remove
certainly
her
tragic
circumstances, the facts as set forth in the notices simply
do not serve to notify defendants of the manner in which
they
breached
their
respective
standard
of
care.
The
notices do not aver how plaintiff alleged her treatment by
any defendant was deficient.
There is no allegation, for
(continued…)
position that this is all that is required by §
2912b(4)(c).
Such a construction renders the statutory
notice requirement completely nugatory.
Moreover, it does
not fulfill the statutory purposes of notifying potential
malpractice defendants of the basis of the claims against
them.
Counsel’s construction of § 2912b(4)(c) is analogous
to the following hypothetical example: A parent sees that
a priceless lamp in his living room is broken. The parent
asks his child, “How did the lamp become broken?”
The
child replies, “The lamp is broken.” The repetition of the
fact that the lamp is broken is unresponsive to the
question that was asked. Similarly, plaintiffs’ notices of
intent answer the question, “How was the standard of care
breached?” with the response, “The standard of care was
breached.”
23
example,
that
any
critical
tests,
of
the
defendants
incorrectly
failed
diagnosed
her
to
perform
condition,
or
failed to refer her to a specialist in keeping with the
appropriate
inference
standard
arises
of
from
care.
the
Although,
recitation
perhaps,
of
facts
an
that
plaintiff was alleging that one or more of the defendants
should have earlier diagnosed an ectopic pregnancy, such an
“inference”
is
requirement
that
manner
in
not
which
sufficient
plaintiff
each
to
provide
defendant
meet
the
statutory
a
statement
breached
the
of
the
applicable
standard of care.15
15
Plaintiff’s notices of intent state that defendants
engaged in “negligence” and, thus, it may said that
plaintiff specifically alleged in her notices that a
“breach” of the standard of care occurred. However, it is
not sufficient under § 2912b(4)(c) to merely assert that a
breach occurred, because that section requires that a
notice more precisely contain a statement regarding the
manner in which the breach is alleged to have occurred.
Despite enacting a statute that requires a plaintiff
in general terms to provide her contentions regarding six
aspects of her claim of medical malpractice, the dissent’s
view is that the Legislature created a nullity and that a
plaintiff satisfies her obligation under this statute by
essentially declaring, “I went to the doctor and something
bad happened.”
Contrary to the dissent’s assertion that
the majority has required a “high degree of specificity”——
neither a term nor a concept found in our opinion——what we
have required is what the statute expressly requires: A
good-faith effort on the part of a plaintiff to answer the
statutory questions, including the manner in which the
(continued…)
24
4.
MCL 600.2912b(4)(d):
In
response
to
§
ACTION THAT SHOULD HAVE BEEN TAKEN
2912b(4)(d),
which
mandates
a
statement of “[t]he alleged action that should have been
taken to achieve compliance with the alleged standard of
practice
or
care,”
plaintiff’s
notices
merely
refer
the
reader to “paragraph 2” (which, on appeal, plaintiff claims
should have read “paragraph 1”).
The Court of Appeals
panel held that the recitations of facts in the notices
were sufficient to meet this requirement:
Clearly, when reading the notices as a
whole, plaintiff alleges that the action that
should have been taken was to have timely
diagnosed the ectopic pregnancy so that it could
have been treated without the loss of plaintiff’s
left fallopian tube. [252 Mich App 672.]
Once again, we disagree.
Plaintiff has failed to identify
any particular action that any defendant should have taken
in order to achieve compliance with the standard of care.
Defendants
are
plaintiff’s
left
treatment
to
guess
was
not
only
deficient,
which
but
what
aspect
of
plaintiff
alleges defendants should have done differently.
5.
MCL 600.2912b(4)(e):
Plaintiff’s
requirement
of
notices
§
of
intent
2912b(4)(e)
that
PROXIMATE CAUSE
fail
the
to
satisfy
notice
the
contain
a
(continued…)
plaintiff claims that the applicable standard of care was
breached.
25
statement
breach
of
of
“[t]he
the
manner
standard
in
of
which
it
practice
is
or
alleged
care
the
was
the
proximate cause of the injury claimed in the notice.”
The
Court of Appeals held that
plaintiff clearly states that the misdiagnosis
resulted in having to have emergency surgery four
days later to remove her only remaining fallopian
tube as a result of the tube bursting from the
undiagnosed ectopic pregnancy, thus rendering her
sterile.
This is clearly a statement of the
manner in which it is alleged that the breach of
the standard of practice or care proximately
caused the injury. [253 Mich App 673.]
We
disagree
state[d]”
with
that
a
the
assertion
misdiagnosis
by
that
plaintiff
any
of
the
“clearly
defendants
resulted in her fallopian tube bursting and in her ensuing
sterility.
Nowhere in the notices does plaintiff state
that any of the defendants misdiagnosed her condition; nor
do
the
notices
misdiagnosis.
state
any
consequences
stemming
from
a
Indeed, the reader is left to wonder whether
plaintiff is alleging that a diagnosis of ectopic pregnancy
could have been made in time to avoid the rupture of her
“tube,” or whether she is alleging that her tube ruptured
as a direct result of her treatment by defendants DesNoyers
and
Davis
on
October
4,
1996.16
16
With
no
specific
Plaintiff’s notices of intent state that “as a
result of [defendants’] negligence . . . , [plaintiff] is
(continued…)
26
allegations
regarding
defendants,
the
the
notices
conduct
any
of
insufficient
are
of
to
the
named
meet
the
particularized requirements of § 2912b(4)(e).17
6.
MCL 600.2912b(4)(f):
HEALTH PROFESSIONALS
AND
FACILITIES
Finally, we agree with the Court of Appeals that the
notices
Hospital
of
intent,
and
all
which
list
agents
“Mecosta
and
County
employees,
General
actual
or
ostensible, thereof” as well as “Obstetrics & Gynecology of
Big
Rapids,
Gail
DesNoyers,
M.D.,
Michael
Atkins,
M.D.,
(continued…)
now unable to have any children.”
At first blush, this
may appear to satisfy the proximate causation requirement
of § 2912b(4)(e). However, it is not sufficient under this
provision
to
merely
state
that
defendants'
alleged
negligence caused an injury.
Rather, § 2912b(4)(e)
requires that a notice of intent more precisely contain a
statement as to the manner in which it is alleged that the
breach was a proximate cause of the injury.
17
The dissent urges, on the basis of legislative
history, that the Legislature’s purpose in enacting § 2912b
was to encourage settlement discussions. Post at 8. This
use of legislative history is questionable.
See In re
Certified
Question
(Kenneth
Henes
Special
Projects
Procurement, Marketing, & Consulting Corp v Continental
Biomass Industries, Inc), 468 Mich 109, 114-118 (2003).
However, assuming that the Legislature’s primary purpose
was to facilitate settlement, it is clear from the decision
to depart from the generally applicable notice pleading
environment created by our court rules that the Legislature
believed more particularized statements were required in
the context of medical malpractice litigation. Indeed, if
settlement is a primary objective of § 2912b, the
heightened particularity required by the statute fosters
this
goal
by
providing
a
defendant
with
a
clear
understanding of the plaintiff’s allegations.
27
Barb Davis, PAC, and all agents and employees, actual or
ostensible,
thereof,”
contain
a
proper
statement
of
the
names of all defendant health professionals and facilities.
IV.
CONCLUSION
Under MCL 600.2912b(4), a medical malpractice claimant
is
required
that
to
includes
enumerated
provide
a
potential
“statement”
categories
of
of
defendants
each
of
information.
with
the
notice
statutorily
Although
it
is
reasonable to expect that some of the particulars of the
information
supplied
by
the
claimant
will
evolve
as
discovery and litigation proceed, the claimant is required
to 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.
The information in the
notice of intent must be set forth with that degree of
specificity
which
will
put
the
potential
defendants
notice as to the nature of the claim against them.
on
This is
not an onerous task: all the claimant must do is specify
what
it
is
that
she
is
claiming
enumerated categories in § 2912b(4).
under
each
of
the
Although there is no
one method or format in which a claimant must set forth the
required information, that information must, nevertheless,
28
be
specifically
identified
in
an
ascertainable
manner
within the notice.
The
notices
of
intent
supplied
by
plaintiff
to
defendants in this case fail to comply with the statutory
mandate.
Among
the
defendants
are
two
different
facilities, an obstetrician, an emergency room physician,
and a physician’s assistant, yet no attempt was made to
identify a specific standard of practice or care applicable
to any particular defendant.
Rather than indicating the
manner in which the (improperly alleged) standards of care
were breached by defendants, the notices simply indicate
that the standards were, in fact, breached.
notices
does
plaintiff
state
what
Nowhere in the
actions
the
various
defendants should have taken to comply with the appropriate
standards of practice or care, or how defendants’ conduct
constituted
injury.
the
proximate
cause
of
plaintiff’s
claimed
Although the factual recitations in the notices
indicate that plaintiff suffered an adverse medical result,
this result is not connected in any meaningful way with the
conduct of any defendant.
Accordingly, plaintiff did not
fulfill her obligation under § 2912b, and the statute of
limitations was not tolled during the notice period.
We
therefore reverse the judgment of the Court of Appeals and
29
reinstate the judgments of the trial court granting summary
disposition to defendants.
Robert P. Young, Jr.
Maura D. Corrigan
Clifford W. Taylor
Stephen J. Markman
30
S T A T E
O F
M I C H I G A N
SUPREME COURT
LISA ROBERTS,
Plaintiff-Appellee,
v
No. 122312
MICHAEL ATKINS, M.D.,
Defendant-Appellant,
and
MECOSTA COUNTY GENERAL HOSPITAL,
GAIL A. DESNOYERS, M.D., BARB
DAVIS, and OBSTETRICS AND
GYNECOLOGY OF BIG RAPIDS, P.C.,
formerly known as GUNTHER, DESNYOYERS
& MEKARU,
Defendants.
_______________________________
LISA ROBERTS,
Plaintiff-Appellee,
v
No. 122335
GAIL A. DESNOYERS, M.D., BARB
DAVIS, OBSTETRICS AND GYNECOLOGY
OF BIG RAPIDS, P.C., formerly
known as GUNTHER, DESNOYERS &
MEKARU,
Defendants-Appellants,
and
MICHAEL ATKINS, M.D., and
MECOSTA COUNTY HOSPITAL,
Defendants.
_______________________________
LISA ROBERTS,
Plaintiff-Appellee,
v
No. 122338
MECOSTA COUNTY GENERAL HOSPITAL,
Defendant-Appellant,
and
GAIL A. DESNOYERS, M.D., MICHAEL
ATKINS, M.D., BARB DAVIS, and
OBSTETRICS AND GYNECOLOGY OF
BIG RAPIDS, P.C., formerly known
as GUNTHER, DESNOYERS & MEKARU,
Defendants.
_______________________________
KELLY, J. (dissenting).
INTRODUCTION
We
granted
constitutes
an
600.2912b(4)
malpractice
leave
adequate
preparatory
complaint.
to
appeal
notice
to
The
to
of
the
determine
intent
filing
majority
what
under
of
a
concludes
MCL
medical
that
the
statute requires a high degree of specificity at the notice
stage of a potential lawsuit.
I respectfully disagree.
Requiring such a level of
specificity is inconsistent with the statute's words and
purpose.
provide
I
would
sufficient
hold
that
the
information
2
notice
about
a
of
intent
claim
must
that
a
defendant
may
ascertain
and
investigate
determine whether to discuss settlement.
its
basis
and
After reviewing
the notices of intent that plaintiff provided in this case,
I conclude that they satisfy the statute’s requirements.
Therefore, I would affirm the decision of the Court of
Appeals.
FACTS AND PROCEDURAL HISTORY
Early in her pregnancy, plaintiff experienced severe
abdominal
pain
and
bleeding.
The
defendant
physicians
diagnosed a spontaneous abortion, performed a dilation and
curettage procedure, and sent plaintiff home to recover.
Plaintiff’s
pain
persisted.
Three
days
later,
it
worsened and she sought care at the defendant hospital.
The
emergency
room
doctor,
defendant
Atkins,
diagnosed
cramps and released plaintiff.
Later that night, plaintiff returned to the defendant
hospital. It was determined that she had had an ectopic
pregnancy that had ruptured her left fallopian tube.
defendant
physicians
removed
plaintiff’s
left
The
fallopian
tube. Because her right fallopian tube had been removed
several years earlier, the operation rendered her sterile.
Plaintiff
claimed
brought
that
the
suit
for
medical
physicians'
sterility.
3
malpractice.
misdiagnoses
led
She
to
her
Plaintiff’s counsel sent to the defendant hospital an
initial
notice
600.2912b(4).1
month
later,
1
of
intent
to
sue,
as
required
by
MCL
Counsel amended the notice approximately a
added
other
defendants
who
are
agents
MCL 600.2912b provides in part:
(4)
The
notice
given
to
a
health
professional
or
health
facility
under
this
section shall contain a statement of at least all
of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or
care alleged by the claimant.
(c) The manner in which it is claimed that
the applicable standard of practice or care was
breached by the health professional or health
facility.
(d) The alleged action that should have been
taken to achieve compliance with the alleged
standard of practice or care.
(e) 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.
(f) The names of all health professionals
and health facilities the claimant is notifying
under this section in relation to the claim.
4
or
employees of the hospital, and sent the amended notice to
them.
Ultimately,
moved
for
plaintiff
summary
brought
disposition.
suit
They
and
defendants
asserted
that
the
notices of intent failed to comply with MCL 600.2912b(4),
and because by then the statutory period of limitations had
expired, plaintiff’s claims were barred.
granted
the
motion.
The
Court
decision and remanded the case.
285 (2000).
of
The trial court
Appeals
vacated
the
240 Mich App 175; 610 NW2d
It held that defendants had waived their right
to challenge the sufficiency of the notices.
This Court granted leave to appeal.
A majority found
that a challenge to the sufficiency of the notices had not
been waived.
It then remanded the case to the Court of
Appeals to consider whether plaintiff had complied with the
statute’s
notice
requirements.
Roberts
v
Mecosta
Co
Gen
Hosp, 466 Mich 57; 642 NW2d 663 (2002) (Roberts I).
On
remand, the Court of Appeals held that the plaintiff had
complied with the requirements.
Roberts v Mecosta Co Gen
Hosp (On Remand), 252 Mich App 664; 653 NW2d 441 (2002).
We again granted leave to appeal.
468 Mich 869 (2003).
STANDARD OF REVIEW
We
review
summary
disposition
judgments
de
novo.
Harvey v Michigan, 469 Mich 1, 6; 664 NW2d 767 (2003).
5
We
also review questions of statutory interpretation de novo.
Omelenchuk v City of Warren, 461 Mich 567, 571 n 10; 609
NW2d 177 (2000).
See also Roberts I at 62.
STATUTORY CONSTRUCTION AND ANALYSIS
The
issue
before
us
is
whether
plaintiff’s
satisfied the requirements of MCL 600.2912b(4).
notices
Our duty
is to determine what the Legislature intended. Omelenchuk
at 576 n 19.
We begin with the language of the statute,
and if the intent of the Legislature is clearly expressed,
no further construction is warranted.
Helder v Sruba, 462
Mich 92, 99; 611 NW2d 309 (2000).
The
contain
statute
a
by
its
“statement”
terms
of
at
requires
least
six
that
the
items:
notice
(1)
the
factual basis for the claim, (2) the alleged applicable
standard of practice or care, (3) the alleged manner in
which
the
applicable
breached,
(4)
the
standard
alleged
of
action
practice
that
or
should
care
have
was
been
taken to comply with the applicable standard of practice or
care, (5) the manner in which the breach of the standard of
care proximately caused the injury, and (6) the names of
all
health
professionals
and
health
facilities
claimant is notifying under the statute.
To
statute,
ascertain
we
what
first
the
Legislature
examine
the
6
that
the
MCL 600.2912b(4).
intended
meaning
of
by
the
this
word
“statement.”
The statute does not define “statement,” and
a
to
a
is
of
resort
intended
lay
dictionary
limited
to
ascertain
usefulness.
the
One
meaning
dictionary
provides:
Statement, n 1. something stated. 2. a
communication
or
declaration
in
speech
or
writing, setting forth facts, particulars, etc.
3. a single sentence or assertion: I disagree
with
your
last
statement.
[Random
House
Webster’s College Dictionary (1995).]
A “statement” can be merely a general assertion or it can
be a detailed description.
Plaintiff argues that the statute requires the former,
and defendants argue that it requires the latter.
The word
as
to
it
appears
meanings.
in
the
sentence
is
susceptible
both
Thus, to determine what the statute intends, we
examine its structure as a whole, and particularly, the
text surrounding the word "statement."
G C Timmis & Co v
Guardian Alarm Co, 468 Mich 416, 420; 662 NW2d 710 (2003).
In discerning the intended meaning, we consider also
the
Legislature's
provision.
(1998).
apparent
purpose
in
enacting
the
In re Wirsing, 456 Mich 467, 474; 573 NW2d 51
We may even consider legislative history.
Adrian
School Dist v Michigan Pub School Employees Retirement Sys,
458 Mich 326, 335; 582 NW2d 767 (1998).
7
The
statute
in
question
requires
that
claimants
alleging medical malpractice send a notice of intent to sue
to potential defendants at least 182 days before filing a
complaint.
MCL 600.2912b(1).
Each potential party is then
required to make available to the others medical records in
his possession relating to the claim.
MCL 600.2912b(5).
Within 154 days after receiving the notice of intent,
the defendants are required to respond to it stating (1)
the factual basis for their defense to the claim, (2) the
standard
of
practice
or
care
that
they
allege
is
applicable, (3) the manner in which they claim to have
complied with the standard of care, and (4) the reasons why
they contend that they were not the proximate cause of the
plaintiff’s alleged injury.
MCL 600.2912b(7).
The statute anticipates that the defendants will often
challenge the alleged applicable standard of practice or
care and the manner in which it was breached.
statutory
period
of
limitations
is
tolled
Id.
during
waiting period after the notice of intent is sent.
600.5856(d).
of
a
The
the
MCL
The 182-day waiting period before the filing
complaint
is
immediately
lifted
if
the
defendants
communicate in writing that they do not intend to settle
the claim.
MCL 600.2912b(9).
8
The overall structure and the operation of the notice
provision suggest that the Legislature intended the act
encourage
period
discussions.2
settlement
enables
the
parties
The
to
182-day
engage
in
to
waiting
settlement
discussions before initiating a lawsuit, possibly avoiding
litigation entirely.
During this period, information is
exchanged without regard to the formal rules of discovery.
Moreover,
the
plaintiff
is
effectively
immobilized
while awaiting a response from the defendants.
The waiting
period is waived only if the defendants file written notice
that they do not intend to settle the claim.
At this stage in the dispute, it is unlikely that all
anticipated experts and witnesses will have been identified
and deposed.
Theories of liability and defenses may not
have been developed with precision.
specificity
about
a
claim
emerges
A higher level of
from
the
information
exchanged by the parties after the notice is sent.
The statute works no unfairness on defendants.
potential
defendants
who
receive
the
notice
possess a high level of medical expertise.
The
assuredly
They do not
require information of great specificity in order to begin
2
This conclusion is buttressed by statements in the
statute’s Senate Legislative Analysis, SB 270, August 11,
1993, and House Legislative Analysis, HB 4403-4406, March
22, 2993.
9
investigating
an
impending
lawsuit.
Also,
most
of
the
records pertinent to a medical malpractice claim are likely
to
be
under
assertion
of
the
control
the
basis
of
for
the
the
defendants.
claim
and
A
of
general
the
items
required by the statute is sufficient to inform them about
the claim and to encourage settlement discussions.
Moreover,
standard,”
the
provision
“specific”
does
not
require
information,
or
a
statement as the majority asserts.
Had
the
Legislature
intended
a
“unique
“particularized”
Ante at 16 n 8, 21, 19.
extensive
detail
in
the
notice, it would have required it.
Numerous
other
statutes
specify
“detailed,”
“complete,” or “full” statements, or statements made “with
specificity.”
In the State Employees’ Retirement Act, for
example,
member
each
is
required
to
file
statement” of his prior service as an employee.
a
“detailed
MCL 38.14.
MCL 500.424(2) in the Insurance Code provides:
In addition to subsection (1), an alien
insurer shall make and execute under oath a
report of its financial standing and of its
deposit together with a full statement of its
business in the United States for the year
preceding the statement pursuant to section 438.
[Emphasis added.]
MCL 462.2(2) in the railroad commission act
requires the governor to provide a “complete
statement” of the charges against a railroad
commissioner after removing the commissioner for
10
neglect of duty or malfeasance.
states:
MCL 333.22231(4)
(4)
Before
a
final
decision
on
an
application is made, the bureau of the department
designated by the director as responsible for the
certificate of need program shall issue a
proposed decision with specific findings of fact
in support of the proposed decision with regard
to each of the criteria listed in section 22225.
The proposed decision also shall state with
specificity the reasons and authority of the
department
for
the
proposed
decision.
The
department shall transmit a copy of the proposed
decision to the applicant. [Emphasis added.]
These
knows
provisions
what
phrasing
extensive detail.
demonstrate
to
use
when
that
it
the
Legislature
intends
to
require
Because it did not explicitly mandate
such specificity in this statute, we should refrain from
adding it ourselves.
In
the
requirement
past,
that
the
Court
notices
be
has
avoided
if
detailed
making
serve
they
a
the
object of the statute and do not prejudice the defendant.
Hummel
v
Grand
Rapids,
319
The
decision
in
(1948).
Mich
616,
625;
Omelenchuck
30
NW2d
recognized
372
that
tolling provisions should not be traps for the unwary and
that,
without
Given
that
proper
medical
fact-intensive,
the
notice,
there
malpractice
Court
is
11
can
actions
be
are
ill-advised
to
no
tolling.
complex
require
and
a
detailed
blueprint
for
notices
of
intent
where
the
examine
the
Legislature did not.3 Omelenchuck at 576, n 19.
FACTUAL ANALYSIS
With
these
considerations
in
mind,
I
notices that plaintiff sent in this case to determine if
they satisfy the statute.
The September 19, 1996, notice of intent, amending the
August 15, 1996, notice sent to the defendant hospital set
out the following factual basis:
This is a claim for negligence which
occurred on October 4, 1994, at Mecosta County
General Hospital. It is claimed that on said date
while pregnant with her first child, Claimant
presented herself to Mecosta County General
Hospital complaining of severe pain. At that time
a diagnosis of a spontaneous abortion was made
and a D and C was performed. Claimant was sent
home at that time.
Over the course of the next few days
Claimant
continued
to
experience
pain
and
cramping and, on October 7, 1994, was again seen
at Mecosta County General Hospital. Claimant was
told that the pain she was experiencing was
cramps from the D and C she had done and was sent
home.
3
The complex nature of medical malpractice would deter
the Legislature from requiring a high degree of specificity
in notices of intent to sue.
The Legislature is presumed
to be aware of existing law.
This includes judicial
interpretations of statutes.
See People v Schultz, 435
Mich 517, 543-544; 460 NW2d 505 (1990).
That renders it
more telling when the Legislature chose not to use the same
or similar words here as it used in other instances when it
wished to require detail.
12
Claimant returned to the hospital on October
8, 1994, wherein it was discovered that Claimant
had not had a spontaneous abortion but had an
ectopic pregnancy in her left tube which had
burst. Emergency surgery was performed at that
time and her left tube was removed.
Claimant
had
her
right
tube
removed
approximately ten years ago and, as a result of
the negligence set forth above, she is now unable
to have any children.
The September 23, 1996, notice of intent sent to the
remaining defendants gave the following factual basis:
This is a claim for negligence which
occurred on October 4, 1994, at Obstetrics &
Gynecology of Big Rapids. It is claimed that on
said date while pregnant with her first child,
Claimant presented herself to Barb Davis, PAC,
Dr. Michael Atkins, and Dr. Gail DesNoyers
complaining
of
severe
abdominal
pain
and
bleeding.
At
that
time
a
diagnosis
of
a
spontaneous abortion was made and a D & C was
performed at Mecosta County General Hospital.
Claimant was sent home at that time, despite Dr.
DesNoyer's [sic] knowledge of Claimant's history
of a prior ectopic pregnancy.
Over the course of the next few days,
Claimant
continued
to
experience
pain
and
cramping and, on October 7, 1994, was seen at
Mecosta County General Hospital by Dr. Michael
Atkins. Claimant was told that the pain she was
experiencing was cramps from the D & C she had
done and was sent home.
Claimant returned to the hospital on October
8, 1994, wherein it was discovered that Claimant
had not had a spontaneous abortion but had an
ectopic pregnancy in her left tube which had
burst. Emergency surgery was performed at that
time and her left tube was removed.
Claimant
had
her
13
right
tube
removed
approximately ten years ago and, as a result of
the negligence set forth above, she is now unable
to have any children.
In
these
statements,
plaintiff
set
out
the
factual
circumstances, alleged an initial misdiagnosis, and stated
the correct diagnosis.
The
September
19
notice
articulated
the
applicable
standard of care:
Claimant
contends
that
the
applicable
standard of care required that Mecosta County
General Hospital provide the claimant with the
services of competent, qualified and licensed
staff of physicians, residents, interns, nurses
and other employees to properly care for her,
render competent advice and assistance in the
care and treatment of her case and to render same
in accordance with the applicable standards of
care.
Similarly, the September 23 notice contained the following:
Claimant
contends
that
the
applicable
standard of care required that Obstetrics &
Gynecology of Big Rapids, Dr. Gail DesNoyers and
Barb Davis, PAC, provide the Claimant with the
services of competent, qualified and licensed
staff of physicians, residents, interns, nurses
and other employees to properly care for her,
render competent advice and assistance in the
care and treatment of her case and to render same
in accordance with the applicable standards of
care.
Our
courts
malpractice
is
have
long
generally
the
recognized
that
failure
exercise
to
medical
that
degree of skill, care, and diligence exercised by members
of
the
same
medical
profession.
14
Dorris
v
Detroit
Osteopathic Hosp Corp, 460 Mich 26; 594 NW2d 455 (1999);
Adkins v Annapolis Hospital, 116 Mich App 558, 564, 323
NW2d 482 (1982), affirmed 420 Mich 87; 360 NW2d 150 (1984).
Plaintiff’s notices state that the standard of care is to
provide competent services.
Because this is sufficiently
close in meaning to exercising professional care, it meets
the
requirement
of
MCL
600.2912b(4)(b)
to
delineate
the
appropriate standard of care.
Where the standard of care is stated generally, it is
unsurprising
that
the
same
standard
applicable to each defendant.
is
specifically
The majority’s conclusion
that the Legislature intended that there be the requirement
of
a
unique
“standard
applicable
defendant, ante at 19, is myopic.
in the statute.
specifically”
to
each
This requirement is not
Hence, it does not exist.
To state the manner in which the alleged standard of
care was breached under MCL 600.2912b(4)(c), the September
19 notice to the defendant hospital refers to paragraph two
of
the
notice.
following
statement:
Gynecology
Davis,
The
of
PAC,
Big
failed
September
"Claimant
Rapids,
to
practice
Dr.
provide
and
care
23
notice
claims
Gail
her
that
contains
Obstetrics
DesNoyers
with
the
in
and
&
Barb
applicable
standard
of
above."
It is manifest that plaintiff claims that the
15
outlined
the
paragraph
2
actions of the defendant physician did not fulfill the duty
of care owed to plaintiff.
Both notices refer to paragraph two of the respective
notices to state the “[alleged] action that should have
been taken to achieve compliance with the alleged standard
of
practice
or
care”
and
“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)(d), (e).
When these paragraphs are read
together with the first paragraphs, they state that the
defendants
should
have
correctly
according to their professional duty.
diagnosed
plaintiff
They assert that a
correct diagnosis would have prevented the serious medical
injury that plaintiff suffered.
the defendants.
Finally, the notices name
MCL 600.2912b(4)(f).
I agree with the Court of Appeals that these notices
are not “picture[s] of clarity” or “the ‘perfect notice.’”
252 Mich App 673.
However, I would find them sufficient
under the statute.4
4
Ironically, this case highlights why the Legislature
did not require a detailed statement.
A potential
defendant is under no obligation to challenge upon its
receipt the sufficiency of the notice of intent to sue.
Roberts I.
The plaintiff, while awaiting the defendant’s
response, cannot be assured that the notice is legally
(continued…)
16
CONCLUSION
I
would
find
that
the
Legislature
intended
that
parties alleging medical malpractice under MCL 600.2912b(4)
provide notice of intent to sue that includes a succinct
statement of certain enumerated items.
that
the
statement
contain
It did not intend
extensive
details.
The
statement simply must provide notice of a potential claim
sufficient to allow potential defendants to ascertain the
basis for the claim and enter into settlement discussions.
The
provided
statements
by
in
the
plaintiff
notices
in
this
of
case
intent
to
satisfied
sue
the
requirements of MCL 600.2912b(4).
They addressed each of
the
and
statutorily
enumerated
items
notice of plaintiff’s claims.
provided
adequate
Defendants were given enough
information to investigate the basis for the claims and
consider
settlement.
Defendants
have
not
asserted
that
they misunderstood the notices; they have asserted merely
that the notices were insufficient under the statute.
(continued…)
sufficient.
If its sufficiency should be challenged and
found to be deficient only after a lawsuit has been filed,
the period of limitations likely will have expired on the
claim.
I believe that the Legislature did not intend to
impose particularized requirements on an injured party who
is effectively immobilized until either the defendant
responds or the waiting period elapses.
17
For these reasons, I would affirm the decision of the
Court of Appeals.
Marilyn Kelly
Michael F. Cavanagh
Elizabeth A. Weaver
18
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