DONNA B DECOSTA V DAVID D GOSSAGE DO
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Marilyn Kelly
Michael F. Cavanagh
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
Diane M. Hathaway
FILED May 25, 2010
DONNA B. DeCOSTA,
Plaintiff-Appellant,
v
No. 137480
DAVID D. GOSSAGE, D.O., and
GOSSAGE EYE CENTER,
Defendants-Appellees.
BEFORE THE ENTIRE BENCH
WEAVER, J.
In this medical-malpractice case, we consider whether plaintiff satisfied the
notice-of-intent requirements under MCL 600.2912b(2) when she timely mailed her
notice of intent to file a claim (NOI) to defendants’ prior address but defendants did not
receive the NOI until after the expiration of the limitations period.1 We conclude that
plaintiff satisfied the mandates of MCL 600.2912b(2) because the statute states that
“[p]roof of the mailing constitutes prima facie evidence of compliance with this section”
and plaintiff mailed the NOI before the date the limitations period expired. The date
defendants received the NOI is irrelevant.
1
The period of limitations for medical-malpractice actions is two years. MCL
600.5805(6).
Further, we conclude that the period of limitations was tolled in this case in light
of the recent amendments of MCL 600.5856. In Bush v Shabahang, we recognized that
while former MCL 600.5856(d) had been interpreted as precluding tolling when defects
exist in an NOI, the current statute, MCL 600.5856(c), makes clear that whether tolling
applies is determined by the timeliness of the NOI.2 Thus, if an NOI is timely, the period
of limitations is tolled despite defects contained therein. Plaintiff’s NOI was timely, and
accordingly the period of limitations was tolled. Further, Bush held that errors and
defects in NOIs are to be addressed in light of MCL 600.2301, which allows the
amendment of NOIs and requires the court to disregard “any error or defect” when the
substantial rights of the parties are not affected and the amendment is in the furtherance
of justice.3 Because defendants actually received the forwarded copies of the NOI, they
were not prejudiced by the fact that plaintiff timely mailed notice to their previous
address and no substantial right of any party was affected.
Moreover, it is in the
furtherance of justice to disregard any error or defect in the NOI in this instance because
to do so is in accord with the purpose of MCL 600.2912b, which is to promote settlement
in place of formal litigation, thereby reducing the cost of medical-malpractice litigation
while still providing compensation to injured plaintiffs.
Accordingly, we conclude that the Court of Appeals majority erred by ruling that
plaintiff’s notice was ineffective to toll the period of limitations because defendants
2
Bush v Shabahang, 484 Mich 156, 161, 185; 772 NW2d 272 (2009).
3
Id. at 185.
2
actually received the timely mailed NOI, which offered the opportunity for settlement in
lieu of litigation. As there was no compromise of defendants’ substantial rights and it is
in the furtherance of justice to allow all parties to first seek settlement outside of court,
we reverse the judgment of the Court of Appeals affirming the dismissal of plaintiff’s
complaint and remand this case to the trial court for further proceedings.
I. FACTS AND PROCEDURAL BACKGROUND
Defendant David Gossage presently operates his business as the Gossage Eye
Center in Hillsdale, Michigan. From October 2002 until February 2004, Dr. Gossage
maintained his office at 46 South Howell Street (the Howell office) in Hillsdale. Plaintiff
Donna DeCosta sought treatment from Dr. Gossage at the Howell office in June 2002.
Plaintiff made several subsequent visits to the Howell office.
In February 2004, Dr. Gossage apparently moved his medical practice to 50 West
Carleton Road (the Carleton office) in Hillsdale. In June 2004, plaintiff sought treatment
by defendant at the Carleton office. Defendant performed cataract surgery on plaintiff’s
left eye on June 3, 2004. The surgery was performed at Hillsdale Community Health
Center.
Plaintiff experienced several problems with her eye immediately following
surgery, including vision loss and other complications. Plaintiff went back to defendant
on June 4 and June 5, 2004, at the Carleton office, but her eye complications did not
improve.
3
During her June 5 visit, defendant referred plaintiff to a retina specialist, Dr.
Daniel Marcus of Toledo, Ohio. Dr. Marcus examined plaintiff in his office and later
performed retinal surgery on plaintiff’s left eye at Toledo Hospital. After this second
surgery, plaintiff visited defendant at the Carleton office for a postoperative check.
During this visit, defendant informed plaintiff that the postoperative lab results indicated
that she was suffering from a coagulase-negative staphylococcal infection.
On November 20, 2006, plaintiff filed a medical-malpractice complaint against
Dr. Gossage and defendant Gossage Eye Center (also referred to as the Gossage Eye
Institute, P.L.C.), alleging unnecessary cataract surgery in unsanitary conditions, among
other allegations.
Under MCL 600.5805(6), a medical-malpractice claim must be
brought within 2 years after the claim accrues—in this case, within 2 years of plaintiff’s
June 3, 2004 surgery performed by Dr. Gossage. Thus, plaintiff filed her medicalmalpractice complaint more than 2 years after her June 3, 2004 surgery.
MCL 600.2912b(1) requires that before filing a medical-malpractice complaint, a
plaintiff must give notice of the plaintiff’s intent to file a claim. MCL 600.2912b(2)
provides:
The notice of intent to file a claim required under subsection (1)
shall be mailed to the last known professional business address or
residential address of the health professional or health facility who is the
subject of the claim. Proof of the mailing constitutes prima facie evidence
of compliance with this section. If no last known professional business or
residential address can reasonably be ascertained, notice may be mailed to
the health facility where the care that is the basis for the claim was
rendered.
Under MCL 600.5856(c), giving the NOI tolls the period of limitations.
4
Plaintiff mailed copies of her NOI to Dr. Gossage and Gossage Eye Center on
June 1, 2006—two days before the two-year limitations period was to expire on June 3,
2006.
On June 5, 2006, an unknown individual at the old Howell office address accepted
and signed for copies of the NOI and forwarded them to defendants at the Carleton office.
Defendants acknowledge receipt of the forwarded NOI on June 6, 2006, three days after
the two-year limitations period expired. Plaintiff also mailed a second set of copies of the
NOI to the Carleton office, but these were mailed on June 7, 2006, four days after the
limitations period expired.
After plaintiff filed her complaint for medical malpractice, defendants moved for
summary disposition on the ground that plaintiff did not comply with MCL 600.2912b(2)
because she failed to mail the NOI to defendants’ “last known professional business
address” within two years from the date of the alleged malpractice. On May 16, 2007,
the trial court granted defendants’ motion for summary disposition, concluding that
plaintiff had failed to comply with MCL 600.2912b(2) because she had not timely mailed
the NOI to defendants’ last known business address.
Plaintiff appealed, and on September 2, 2008, the Court of Appeals affirmed the
trial court’s judgment in a 2-1 decision. Dissenting Judge JANSEN acknowledged that
plaintiff was aware of defendants’ new address (since she had received treatment at the
5
Carleton office several times),4 but Judge JANSEN could “perceive no evidence to suggest
that plaintiff was aware that the new address was defendants’ sole or exclusive address.”5
Plaintiff appealed in this Court, and we directed the clerk of the Court to schedule
oral argument on whether to grant the application or take other peremptory action.6
II. STANDARD OF REVIEW
This Court reviews de novo issues of law.7 We review a trial court’s findings of
fact for clear error.8
III. ANALYSIS
With the enactment of MCL 600.2912b, our Legislature instituted a requirement
that the alleged injured party in a medical-malpractice action provide advance notice to a
defendant medical provider before filing a complaint. The advance-notice requirement
encourages settlement of a dispute in lieu of costly litigation, and rigid interpretations of
MCL 600.2912b do not foster or encourage the statute’s goal of advancing settlement and
reducing litigation costs.
4
Between June and October 2004, plaintiff sought treatment approximately seven
times at the Carleton office.
5
DeCosta v Gossage, unpublished opinion per curiam of the Court of Appeals,
issued September 2, 2008 (Docket No. 278665), p 2 (JANSEN, J., dissenting).
6
DeCosta v Gossage, 483 Mich 963 (2009).
7
Odom v Wayne Co, 482 Mich 459, 467; 760 NW2d 217 (2008).
8
Henry v Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009).
6
In Bush, we analyzed the effect of the 2004 amendments of MCL 600.5856, the
tolling statute, on previous decisions of this Court that held that any defect in an NOI
required dismissal of the plaintiff’s cause of action.9 Bush held that while former MCL
600.5856(d) had been interpreted as precluding tolling when defects exist in an NOI, the
current statute, MCL 600.5856(c), now makes clear that whether tolling applies is
determined by the timeliness of the NOI.10 Thus, if an NOI is timely, the period of
limitations is tolled despite defects contained therein. Our decision in Bush restored
adherence to the statute’s true intent of promoting settlement by derailing strained
interpretations regarding the adequacy of an NOI. Exceedingly exacting interpretations
of the NOI mandates—requiring plaintiffs to take extraordinary measures to satisfy the
goal of providing advance notice—in fact frustrate the legislative goal of achieving
prompt resolution of medical-malpractice claims without long and expensive litigation.
We decline to adopt any such interpretation because it was not the intent of the
Legislature. As we held in Bush:
The stated purpose of § 2912b was to provide a mechanism for
“promoting settlement without the need for formal litigation, reducing the
cost of medical malpractice litigation, and providing compensation for
meritorious medical malpractice claims that would otherwise be precluded
from recovery because of litigation costs . . . .” To hold that § 2912b in and
of itself mandates dismissal with prejudice would complicate, prolong, and
significantly increase the expense of litigation. Dismissal with prejudice
would be inconsistent with these stated purposes. [Bush, 484 Mich at 174-
9
See, e.g., Boodt v Borgess Med Ctr, 481 Mich 558, 561; 751 NW2d 44 (2008).
10
Bush, 484 Mich at 161, 185.
7
175, citing Senate Legislative Analysis, SB 270, August 11, 1993, and
House Legislative Analysis, HB 4403 to 4406, March 22, 1993.]
MCL 600.2912b does not require dismissal with prejudice because such a result is
inconsistent with the statute’s stated purpose.11 Moreover, the Revised Judicature Act
contains a mechanism for courts to cure defects in proceedings.12 As we stated in Bush,
service of an NOI is a part of a medical-malpractice proceeding.13 Consequently, it is
subject to MCL 600.2301.
Pursuant to MCL 600.2301, errors or defects in the
proceedings shall be disregarded as long as the “substantial rights of the parties” are not
affected.14
In the present case, defendants urge us to dismiss plaintiff’s case because plaintiff
sent the NOI to an address that they allege is their prior business address. Defendants
argue, and the Court of Appeals majority agreed, that because MCL 600.2912b requires
that the NOI be mailed to the last known professional business address and plaintiff sent
11
Id. at 174-175.
12
MCL 600.2301 states:
The court in which any action or proceeding is pending, has power
to amend any process, pleading or proceeding in such action or proceeding,
either in form or substance, for the furtherance of justice, on such terms as
are just, at any time before judgment rendered therein. The court at every
stage of the action or proceeding shall disregard any error or defect in the
proceedings which do not affect the substantial rights of the parties.
[Emphasis added.]
13
Bush, 484 Mich at 176.
14
MCL 600.2301.
8
the notice to a prior address rather than their new address, the NOI was defective and the
defect cannot be cured. We disagree.
First, we are not convinced that the process of mailing the NOI was defective.
While the NOI may have been mailed to what defendants claim is a previous address,
there is no indication in the record that this was defendants’ sole address. Not only did
the United States Postal Service deliver the mail to the Howell office address, but
someone at that address accepted and signed for the certified mail. Further, someone at
the Howell office address promptly forwarded the NOI to defendants at the Carleton
office address. From these facts, we cannot infer that the Carleton office address was
defendants’ sole business address for purposes of receiving professional business
correspondence.
Moreover, even if we assume that this was a defect, it was a minor technical defect
in the proceedings because defendants actually received the NOI. Such minor technical
defects can be cured under MCL 600.2301.
The second prong of MCL 600.2301
requires that we disregard defects in proceedings that do not affect the substantial rights
of the parties.
Because the NOI was promptly forwarded and defendants actually
received it, no substantial right of defendants was affected. Accordingly, MCL 600.2301
mandates that we disregard this purported defect. To find that an otherwise compliant
NOI is not acceptable because defendants did not initially receive the NOI at their new
address would be contrary to the legislative intent behind MCL 600.2912b: to foster early
action and possible settlement in medical-malpractice matters that might otherwise result
in costly litigation.
9
Moreover, it is in the furtherance of justice to disregard the defect in the NOI
process in this instance because to do so is in accord with the purpose of MCL
600.2912b, which is to promote settlement in place of formal litigation, thereby reducing
the cost of medical-malpractice litigation while still providing compensation to injured
plaintiffs. Defendants additionally urge us to hold that plaintiff did not satisfy MCL
600.2912b(2) because defendants did not receive the NOI before the expiration of the
period of limitations.
However, we are not persuaded by this argument.
MCL
600.2912b(2) states that “[p]roof of the mailing constitutes prima facie evidence of
compliance with this section.” The statute does not require that a defendant receive an
NOI before the period of limitations expires. When a defendant receives the NOI is
irrelevant.
Because plaintiff mailed the NOI before the date the limitations period
expired, it was timely. Further, we agree with Judge JANSEN, who declined to affirm the
trial court’s judgment given the trial court’s own findings:
I respectfully dissent from the majority’s determination that the trial
court properly dismissed plaintiff’s complaint.
MCL 600.2912b(2) provides:
“The notice of intent to file a claim required under subsection (1)
shall be mailed to the last known professional business address or
residential address of the health professional or health facility who is the
subject of the claim. Proof of the mailing constitutes prima facie evidence
of compliance with this section. If no last known professional business or
residential address can reasonably be ascertained, notice may be mailed to
the health facility where the care that is the basis for the claim was
rendered.” [Emphasis added.]
* * *
10
. . . I cannot omit mention of the fact that defendants actually
received plaintiff’s initial notice of intent, which was forwarded from
defendants’ previous address to their new address. MCL 600.2301 directs
that “[t]he court at every stage of the action or proceeding shall disregard
any error or defect in the proceedings which do not affect the substantial
rights of the parties.” In light of the fact that defendants actually received
plaintiff’s initial notice of intent, I must conclude that plaintiff’s act of
mailing the notice to defendants’ previous address “d[id] not affect the
substantial rights of the parties.” MCL 600.2301. Because they actually
received the forwarded notice of intent, defendants were not prejudiced by
the fact that plaintiff happened to send the notice to their previous address.
I would reverse and remand for reinstatement of plaintiff’s complaint.[15]
IV. CONCLUSION
Plaintiff satisfied the notice-of-intent requirements under MCL 600.2912b(2)
when she timely mailed her NOI to defendants’ prior address but defendants did not
receive the NOI until after the expiration of the limitations period. MCL 600.2912b(2)
states that “[p]roof of the mailing constitutes prima facie evidence of compliance with
this section,” and plaintiff mailed the NOI before the date the limitations period expired.
The date defendants received the NOI is irrelevant.
Further, we conclude that the period of limitations was tolled in this case. If an
NOI is timely, the period of limitations is tolled despite defects contained therein. MCL
600.2301 allows for the amendment of NOIs and requires the court to disregard “any
error or defect” when the substantial rights of the parties are not affected and the
amendment is in the furtherance of justice. Because defendants actually received the
forwarded copies of the NOI, they were not prejudiced by the fact that plaintiff timely
15
DeCosta, unpub op at 1-2 (JANSEN, J., dissenting).
11
mailed notice to the previous address, and no substantial right of any party was affected.
Moreover, it is in the furtherance of justice to disregard any error or defect in the NOI in
this instance.
Accordingly, we conclude that the Court of Appeals erred by finding that
plaintiff’s notice was ineffective to toll the period of limitations.
We reverse the
judgment of the Court of Appeals affirming the dismissal of plaintiff’s complaint and
remand this case to the trial court for further proceedings.
Reversed and remanded for reinstatement of plaintiff’s complaint.
Elizabeth A. Weaver
Diane M. Hathaway
KELLY, C.J., and CAVANAGH, J. We concur in the result.
Marilyn Kelly
Michael F. Cavanagh
12
STATE OF MICHIGAN
SUPREME COURT
DONNA B. DeCOSTA,
Plaintiff-Appellant,
v
No. 137480
DAVID D. GOSSAGE, D.O., and
GOSSAGE EYE CENTER,
Defendant-Appellee.
MARKMAN, J. (dissenting).
Because I believe the plurality opinion disregards the language of MCL
600.2912b(2), I respectfully dissent. Contrary to the plurality opinion, I would affirm the
judgment of the Court of Appeals, which, along with the trial court, correctly held that
the statute of limitations barred plaintiff’s medical malpractice action.
I. NOTICE OF INTENT
Generally, medical malpractice actions must be brought within two years from the
date that the alleged medical malpractice occurred or within six months of when the
plaintiff discovered or should have discovered the claim. MCL 600.5805(6); MCL
600.5838a.
However, MCL 600.5856(c) allows for the tolling of the period of
limitations1 when the plaintiff has provided a notice of intent to bring a medical
1
MCL 600.5856 provides in relevant part:
malpractice action to the defendant in order to accommodate the required “waiting
period” between the time of the notice and the time of the filing of the complaint.2 In the
instant case, plaintiff filed her complaint two years and five months after the alleged
malpractice had occurred, well beyond the period of limitations. Thus, in order for
plaintiff not to be barred from bringing her claim, the period of limitations must have
been tolled. To toll it, plaintiff was required to provide defendants with a notice of intent
before the limitations period expired, and MCL 600.2912b(2) requires that the notice be
mailed to the “last known professional business address or residential address” of
defendants.
Here, defendants moved their practice from 46 S. Howell Street to 50 W. Carleton
Road, both in Hillsdale, in February 2004. The alleged malpractice occurred at the new
The statutes of limitations or repose are tolled in any of the
following circumstances:
* * *
(c) At the time notice is given in compliance with the applicable
notice period under [MCL 600.2912b], 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.
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
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.
2
address on June 3, 2004, four months after defendants moved their practice.
Nevertheless, plaintiff mailed copies of the notice of intent to defendants’ old business
address on June 1, 2006, two days before the two-year limitations period expired on June
3, 2006. An unidentified person at 46 S. Howell Street signed for them on June 5, 2006,
and forwarded the notices to defendants.
However, defendants did not receive the
forwarded notices until June 6, 2010.3
Thus, the question here is whether the requirement of MCL 600.2912b(2) that the
notice of intent be mailed to the “last known professional business address” is satisfied
when the notices were mailed to the wrong address-- an address at which defendants had
not practiced for almost 2½ years-- before the limitations period expired, but received by
defendants after the limitations period expired. The plurality states that the requirement
has been satisfied because defendants actually received the notices, albeit after the
expiration of the limitations period.
I disagree because I do not believe that the
limitations period was tolled by plaintiff’s faulty notices, and, accordingly, plaintiff’s
action was barred.
In interpreting statutes, this Court is obligated “to ascertain the legislative intent
that may reasonably be inferred from the words expressed in the statute.” Koontz v
Ameritech Services, Inc, 466 Mich 304, 312; 645 NW2d 34 (2002). “If the statutory
language is clear and unambiguous, then we conclude that the Legislature intended the
3
Plaintiff also mailed copies of a second notice that were properly addressed on
June 7, 2006, after the limitations period had expired.
3
meaning it clearly and unambiguously expressed, and the statute is enforced as written.”
Huggett v Dep’t of Natural Resources, 464 Mich 711, 717; 629 NW2d 915 (2001). As
we stated in Koontz, “[b]ecause the proper role of the judiciary is to interpret and not
write the law, courts simply lack authority to venture beyond the unambiguous text of a
statute.” Koontz, 466 Mich at 312. In determining the common and ordinary meaning of
a nonlegal word or phrase, consulting a lay dictionary is appropriate. Title Office, Inc v
Van Buren Co Treasurer, 469 Mich 516, 522; 676 NW2d 207 (2004).
MCL 600.2912b(2), which is in dispute, provides:
The notice of intent to file a claim required under [MCL
600.2912b(1)] shall be mailed to the last known professional business
address or residential address of the health professional or health facility
who is the subject of the claim. Proof of the mailing constitutes prima facie
evidence of compliance with this section. If no last known professional
business or residential address can reasonably be ascertained, notice may be
mailed to the health facility where the care that is the basis for the claim
was rendered.
The phrase “last known professional business address” means the last address from which
the defendant operated a business; this language is clear and requires no further
construction. The plaintiff “shall” mail the notice of intent to that address. Only if this
address cannot be “reasonably” ascertained may the plaintiff alternatively satisfy MCL
600.2912b(2) by mailing the notice to the “health facility where the care that is the basis
for the claim was rendered.”
Here, plaintiff claims that defendants’ last known professional business address
was 46 S. Howell Street.
To support this claim, plaintiff provided a letter from
defendants with 46 S. Howell Street on the letterhead. However, this letter was from
4
2002. It merely demonstrates that in 2002 defendants’ business address was 46 S.
Howell Street. It does not demonstrate what defendants’ professional business address
was when the notices of intent were mailed on June 1, 2006. Additionally, plaintiff
claims that “online materials indicate that Dr. Gossage still maintains a practice” on
Howell Street and supports this claim with a printout from a web site called
“LocateADoc.com.” However, there is nothing to indicate that this website was created
or maintained by defendants, and plaintiff makes no showing that this website is routinely
updated or constitutes a reliable source of information.4 None of this, individually or
taken together, is nearly enough to demonstrate that plaintiff undertook steps to
reasonably ascertain defendants’ last known professional business address.
Further, as the trial court correctly observed, defendants’ last known professional
business address was “easy to look up” in the phone book.5 Plaintiff herself visited the
Carleton Road office on numerous occasions.
In fact, defendants treated plaintiff
4
Plaintiff also presented letters from a doctor addressed to defendants at 46 S.
Howell Street in 2004, after defendants had moved their office. This shows nothing more
than that another person, not under any legal obligation to reasonably ascertain an
address, as was plaintiff, also sought to communicate with defendants at a then incorrect
address.
5
The trial court also observed that while the Hillsdale Community Health Center,
the hospital at which plaintiff’s surgery occurred and that was apparently identified as a
potential defendant, has been located at 168 S. Howell Street in Hillsdale for more than
30 years, the notice of intent for the hospital was addressed to 50 W. Carleton Road.
There is nothing in the record that explains what happened to the notice that was mailed
to the hospital other than that someone signed for it. The trial court speculated that a
letter carrier may have delivered the hospital’s notice to the proper address because the
location of the hospital is common knowledge.
5
exclusively at 50 W. Carleton Road for all visits relevant to the asserted malpractice.
And plaintiff went to 50 W. Carleton Road to pick up her medical records. Finally, there
is nothing in the record to indicate that defendants continued to maintain any practice at
46 S. Howell Street after February 2004 or, contrary to the assertions of the plurality and
the Court of Appeals dissent, that plaintiff believed in any way that defendants had more
than one professional business address.6
Plaintiff cannot credibly claim that she
reasonably believed that defendants’ last known address was anything but 50 W. Carleton
Road.
The plurality asserts that proof of mailing the notices of intent was prima facie
evidence that plaintiff complied with MCL 600.2912b(2), and since defendants
eventually received the notices, even though they were mailed to the wrong address, they
were nonetheless timely.7 However, Black’s Law Dictionary (8th ed) defines “prima
facie evidence” as “[e]vidence that will establish a fact or sustain a judgment unless
6
The Court of Appeals dissent “perceive[d] no evidence to suggest that plaintiff
was aware that the new address was defendants’ sole or exclusive address” and asserted
that “[t]he language of [MCL] 600.2912b(2) simply does not take into account the fact
that some . . . health care professionals maintain more than one professional address at
any given time.” DeCosta v Gossage, unpublished per curiam opinion of the Court of
Appeals, issued September 2, 2008 (Docket No. 278665), p 2 (JANSEN, J., dissenting)
(emphasis in original). The plurality agrees. However, this assessment is irrelevant.
First, it can just as easily be said that there is no evidence to suggest that plaintiff was
aware that defendants still maintained a practice at 46 S. Howell Street. Second, and
more to the point, the extent of plaintiff’s subjective knowledge does not define the
statutory test; rather, it is whether the plaintiff took steps to reasonably ascertain the last
known address.
7
MCL 600.2912b(2) provides that “[p]roof of the mailing constitutes prima facie
evidence of compliance with this section.”
6
contradictory evidence is produced.” Accordingly, while proof of mailing may well
provide prima facie evidence that the notice of intent was mailed to the last known
professional business address, this evidence may be rebutted, as it clearly was in this
case.8
While the plurality asserts that proof of mailing constitutes prima facie evidence of
compliance with MCL 600.2912b(2), it altogether ignores that MCL 600.2912b(2)
requires a plaintiff to “reasonably” ascertain the “last known professional business
address” and to mail the notice of intent to that address. Instead of adhering to ordinary
rules of interpretation, the plurality asserts that “rigid,” “strained,” and “[e]xceedingly
exacting interpretations” of the notice of intent requirements “frustrate the legislative
goal,” which is presumably something other than what was actually stated by the
Legislature. However, this Court is obligated to determine legislative intent “from the
words expressed in the statute.”
Koontz, 466 Mich at 312.
In my judgment, the
plurality’s interpretation of MCL 600.2912b(2) “venture[s] [far] beyond the unambiguous
text of the statute.” Id.
8
The plurality also asserts that because the United States Postal Service delivered
the copies of the notice and an unidentified person at 46 S. Howell Street signed for them
and forwarded the copies to defendants, it cannot be inferred that defendants’ new
address was their sole business address. I see no logical connection between these facts
and the plurality’s conclusion. Again, these facts are at most prima facie evidence that
the notices were mailed. There is no evidence to indicate who actually signed for the
notices or that this person was in any way associated with defendants. Further, the fact
that someone at 46 S. Howell Street signed for the notices is irrelevant to whether
defendants’ practice was located there. It indisputably was not.
7
Plaintiff also claims that defendants received actual notice and that this Court
should hold that such notice is a legally adequate substitute for the statutorily required
notice. Plaintiff cites California and Florida law, claiming that their medical malpractice
statutes are similar to Michigan’s and that both states allow for actual notice as an
adequate substitute.
However, the cases on which plaintiff relies are clearly
distinguishable because they provide that actual notice is sufficient if the notice of intent
has either been received,9 or if the notice has been mailed via regular mail in a properly
addressed envelope,10 before the limitations period has expired. In the case at bar, the
notices of intent were not received until after the limitations period had expired, and
plaintiff failed to properly address the envelopes.
In summary, plaintiff failed to reasonably ascertain defendants’ last known
professional business address as required under MCL 600.2912b(2) and, as a
9
In Jones v Catholic Healthcare West, 147 Cal App 4th 300, 307-308; 54 Cal Rptr
3d 148 (2007), the court held that a notice of intent delivered via fax on the day the
limitations period expired was sufficient notice because California’s notice of intent
statute did not require a specific method of service. In Patry v Capps, 633 So 2d 9, 10-11
(Fla, 1994), the plaintiff hand-delivered the notice of intent, contrary to the statute’s
requirement to serve the notice by certified mail, before the limitations period expired.
The court concluded that certified mail was a “method for verifying significant dates in
the process” and the “defendant acknowledge[d] timely receipt of written notice . . . .”
Id. at 12.
10
In Silver v McNamee, 69 Cal App 4th 269, 272; 81 Cal Rptr 2d 445 (1999), the
plaintiff mailed two notices of intent to the defendant, one by regular mail and one by
certified mail, three days before the limitations period expired. While the certified letter
was returned unclaimed, the regular mail letter was not. Id. at 274. Because the notices
of intent were properly addressed, the court concluded that the plaintiff complied with the
statute and that the defendant had actual notice. Id. at 280.
8
consequence, mailed the notices of intent to the wrong address. Although the notices
were mailed before the limitations period expired, defendants did not receive the notices
until after the limitations period had expired. Accordingly, the notices of intent were not
timely and did not toll the period of limitations.
II. BUSH v SHABAHANG
In its application of MCL 600.2301, the plurality purports to extend Bush v
Shabahang, 484 Mich 156; 772 NW2d 272 (2009), another decision according little
consideration to the actual language of relevant statutes, to a notice of intent mailed to the
wrong address.11
Bush formulated a test to determine whether MCL 600.2301 is
applicable when the substantive content of the notice of intent is defective, id. at 177, and
held that “when [a notice of intent] is timely, the statute of limitations is tolled despite
defects contained therein,” id. at 185 (emphasis added). Here, the plurality would sustain
even an untimely notice of intent.
To determine whether MCL 600.2301 should be applied to a defective notice of
intent, the majority established a two-pronged test in Bush:
11
MCL 600.2301 provides:
The court in which any action or proceeding is pending, has power
to amend any process, pleading or proceeding in such action or proceeding,
either in form or substance, for the furtherance of justice, on such terms as
are just, at any time before judgment rendered therein. The court at every
stage of the action or proceeding shall disregard any error or defect in the
proceedings which do not affect the substantial rights of the parties.
The purpose of MCL 600.2301 is “to abolish technical errors in proceedings and to have
cases disposed of as nearly as possible in accordance with the substantial rights of the
parties.” M M Gantz Co v Alexander, 258 Mich 695, 697; 242 NW 813 (1932).
9
[F]irst, whether a substantial right of a party is implicated and,
second, whether a cure is in the furtherance of justice. If both of these
prongs are satisfied, a cure will be allowed “on such terms as are just.” . . .
Defendants who receive these notices are sophisticated health professionals
with extensive medical background and training. . . . Accordingly, we
conclude that no substantial right of a health care provider is implicated.
Further, we hold that the second prong of the test, which requires that the
cure be in the furtherance of justice, is satisfied when a party makes a goodfaith attempt to comply with the content requirements of [MCL 600.2912b].
Thus, only when a plaintiff has not made a good-faith attempt to comply
with [MCL 600.2912b(4)] should a trial court consider dismissal of an
action without prejudice. [Bush, 484 Mich at 177-178.]
In my dissent in Bush, I observed that the majority had provided no guidance for the
application of its new test, id. at 199 n 10, and such guidance has still not been provided.
Concerning the first prong, the plurality simply declares that even though plaintiff failed
to comply with MCL 600.2912b(2), and even though defendants did not receive the
notices of intent until after the limitations period expired, defendants’ substantial rights
have not been affected and the notices were “timely” because defendants received actual
notice. According to the plurality, because the purpose of MCL 600.2912b is to promote
settlements of medical malpractice claims, it is in the “furtherance of justice” to disregard
the defect here. The plurality also disregards the second prong of the Bush test, namely,
that plaintiff has made a “good-faith attempt” to comply with the law. Id. at 178. In
defining its own test, it is clear that nothing really matters except that the plurality
dislikes medical malpractice reforms and that it will not permit such reforms, or any other
contrary determinations of the Legislature, to impede the progress of this lawsuit.
Applying the test in Bush, MCL 600.2301 is inapplicable to the instant case. First,
defendants’ substantial rights, in particular, the right not to be sued beyond the expiration
10
of the limitations period, are affected. In Bigelow v Walraven, 392 Mich 566, 576; 221
NW2d 328 (1974), this Court explained the purpose behind the statutes of limitations:
Statutes of limitations are intended to “compel the exercise of a right
of action within a reasonable time so that the opposing party has a fair
opportunity to defend”; “to relieve a court system from dealing with ‘stale’
claims, where the facts in dispute occurred so long ago that evidence was
either forgotten or manufactured”; and to protect “potential defendants
from protracted fear of litigation.” [Citation omitted; emphasis added.] [12]
Statutes of limitations have multiple purposes, among which are the maintenance of the
psychological well-being of potential defendants by setting forth time limits on their
exposure to litigation and the protection of defendants’ practical interests in being able to
effectively defend themselves against lawsuits that are not excessively stale and in which
evidence has not been lost over time. While a plaintiff has a right to sue a defendant
before the limitations period expires, a defendant has an equivalent right not to be sued
after the limitations period expires. So the question here is whether this right constitutes
a “substantial right.” Bush, 484 Mich at 177. Black’s Law Dictionary (8th ed), p 1349,
defines “substantial right” as “[a]n essential right that potentially affects the outcome of a
lawsuit and is capable of legal enforcement and protection, as distinguished from a mere
technical or procedural right.” In People v Carines, 460 Mich 750, 763; 597 NW2d 130
12
See also O’Brien v Hazelet & Erdal, 410 Mich 1, 14; 299 NW2d 336 (1980) (stating
that statutes of limitations “serve the permissible legislative objective of relieving
defendants of the burden of defending claims brought after the time so established”), and
Stephens v Dixon, 449 Mich 531, 534; 536 NW2d 755 (1995) (“Statutes of limitation are
procedural devices intended to promote judicial economy and the rights of defendants.”).
11
(1999), we explained that to demonstrate that substantial rights are affected “generally
requires a showing of prejudice . . . .”13
Statutes of limitations are not procedural; rather, they “are substantive in nature.”
Gladych v New Family Homes, Inc, 468 Mich 594, 600; 664 NW2d 705 (2003). A
defendant’s right to not be sued after the limitations period has expired is not a mere
procedural right. Rather, this right pertains to matters that are dispositive and outcomedeterminative. If the limitations period has expired, then a plaintiff is barred from
pursuing an action, regardless of its merits. Defendants’ entirely substantial rights were
affected because the limitations period expired before plaintiff properly mailed the
notices of intent to defendants. Absent authority, a majority of justices have revived a
lawsuit that became null and void the moment the period of limitations expired without
the statutorily required notice of intent having been properly sent by plaintiff.
Second, even if defendants’ substantial rights had not been affected under the first
prong of Bush, plaintiff clearly did not make a good-faith attempt to comply with the
statute as required by Bush’s second prong. Specifically, plaintiff did not make a goodfaith attempt to comply with MCL 600.2912b(2). As already discussed, plaintiff was
well aware that defendants’ last known professional business address was 50 W. Carleton
Road because all office visits related to the alleged malpractice had occurred at this
address. Plaintiff asserts that she was not aware that defendants only had one place of
13
In Carines, substantial rights were discussed in the context of the “plain error
rule.” This Court explained that a showing of prejudice means “that the error affected the
outcome of the lower court proceedings.” Carines, 460 Mich at 763.
12
business; that is, she asserts that she believed that defendants conducted business at 46 S.
Howell Street and 50 W. Carleton Road. However, the facts here indicate that plaintiff
also mailed the notice of intent to Hillsdale Community Health Center at 50 W. Carleton.
The hospital’s address is 168 S. Howell Street, and it has never been located at 50 W.
Carleton.14 This fact tends to disprove plaintiff’s claim that she engaged in a good-faith
effort to determine defendants’ address, or that she believed defendants had more than
one address. Plaintiff not only mailed the notices of intent for defendants to the wrong
address, but she also mailed the notice for the hospital to the wrong address. Moreover, it
is clear that plaintiff was aware of defendants’ new address because she mailed the
hospital’s notice to that address. Thus, plaintiff neither made a reasonable effort to
ascertain defendants’ address, as required by MCL 600.2912b(2), nor a good-faith effort
to “reasonably” ascertain defendants’ address, as required under the rule in Bush.
Plaintiff was not earnest or conscientious in any way in her effort to locate defendants’
address in the small community of Hillsdale, Michigan; she was simply careless and this
carelessness is legally relevant under the statute.
The plurality concludes that when a defendant receives notice is irrelevant under
MCL 600.2919b(2) because this provision does not require that a defendant actually
receive notice before the limitations period has expired. Rather, the plurality appears to
believe it is the law of this state that as long as a plaintiff mailed the notice of intent
14
The trial court took “judicial notice to the fact that the Hillsdale Community
Health Center has been located in the same place . . . for over 30 years, and that [it] is
located at 168 S. Howell Street, Hillsdale. . . . It’s not 50 W. Carleton.”
13
before the limitations period expired, such notice is timely-- without regard to whether
the plaintiff took steps to reasonably ascertain the defendant’s last known professional
business address, without regard to whether the defendant’s substantial rights were
affected, and without regard to whether the plaintiff made a good-faith effort to comply
with MCL 600.2912b(2). In the end, the plurality would rewrite MCL 600.2912b(2) in a
way that not only disregards this Court’s prior decisions, but also frustrates the express
intentions of the Legislature.
III. CONCLUSION
In sum, I disagree with the plurality because it disregards the language of MCL
600.2912b(2) and would create an “actual notice” rule that allows the period of
limitations to be tolled as long as an improperly addressed notice was mailed before the
limitations period expired and the notice is eventually received by a defendant.
Furthermore, I disagree with the plurality’s efforts to extend Bush to MCL 600.2912b(2)
in which the plurality does not even adhere to its own test formulated only last year. The
plurality has reached their desired result with little serious analysis and with nothing
offered in the way of a legal roadmap of how they arrived there and where they might
arrive in the next case.
Stephen J. Markman
Maura D. Corrigan
Robert P. Young, Jr.
14
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