Boodt v. Borgess Medical Center

• Decision Date: 31 October 2006
• Docket Number: Docket No. 266217.
• Citation: 728 N.W.2d 471,272 Mich. App. 621
• Parties: Melissa BOODT, as Personal Representative of the Estate of David Waltz, Deceased, Plaintiff-Appellant, v. BORGESS MEDICAL CENTER, Michael Andrew Lauer, M.D., and Heart Center for Excellence, P.C., Defendant-Appellees, and Michael Andrew Lauer, M.D., P.C., Defendant.
• Court: Court of Appeal of Michigan — District of US

728 N.W.2d 471

272 Mich. App. 621

Melissa BOODT, as Personal Representative of the Estate of David Waltz, Deceased, Plaintiff-Appellant, v. BORGESS MEDICAL CENTER, Michael Andrew Lauer, M.D., and Heart Center for Excellence, P.C., Defendant-Appellees, and Michael Andrew Lauer, M.D., P.C., Defendant.

Docket No. 266217.

Court of Appeals of Michigan.

Submitted April 4, 2006, at Detroit.

Decided October 31, 2006, at 9:05 a.m.

Released for Publication February 20, 2007.

Turner & Turner, P.C. (by Matthew L. Turner), Southfield, for Melissa Boodt.

Smith Haughey Rice & Roegge (by William L. Henn and Carol D. Carlson), Grand Rapids, for Borgess Medical Center.

Willingham & Coté, P.C. (by Curtis R. Hadley and James L. Dalton), East Lansing, for Michael A. Lauer, M.D.; and Heart Center, for Excellence, P.C.

Before: WHITE, P.J., WHITBECK, C.J., and DAVIS, J.

DAVIS, J.

Plaintiff appeals as of right the trial court's order dismissing her wrongful death, medical malpractice claim pursuant to MCR 2.116(C)(7) and (C)(8). The trial court dismissed this action with prejudice because it found plaintiff's notice of intent to sue, MCL 600.2912b, inadequate, resulting in the suit being untimely. We reverse the dismissal will respect to the individual doctor, we affirm the dismissal with prejudice with respect to the corporate defendants, and we remand the case.

We affirm the dismissal with prejudice with respect to the corporate defendants only because we are bound to follow the earlier holding of this Court in McLean v. McElhaney, 269 Mich.App. 196, 711 N.W.2d 775 (2005), which mandates such a result. Pursuant to MCR 7.215(J)(2), we declare a conflict with McLean and state that, if we were not obligated to follow McLean, we would order the dismissal to be without prejudice.

I. Facts

On October 6, 2001, decedent David Waltz was admitted to Borgess Medical Center for treatment of cardiac complaints. Defendant Michael Andrew Lauer, M.D., performed a percutaneous transluminal coronary angioplasty¹ (PTCA) on the decedent. During the procedure, Dr. Lauer perforated the decedent's coronary artery, causing massive bleeding. At his deposition, Dr. Lauer admitted that the perforation directly caused the decedent to die of anoxic brain injury. On January 13, 2003, pursuant to MCL 600.2912b, plaintiff served defendants with notice of intent to sue. Plaintiff filed a complaint on June 19, 2003. Defendants moved to dismiss on the ground that plaintiff's notice of intent failed to comply with the statutory requirements. The trial court agreed that the notice of intent was invalid and, because the period of limitations had expired, dismissed the action pursuant to MCR 2.116(C)(7) and (C)(8). Plaintiff appeals the dismissal and, in the alternative, argues that any dismissal should have been without prejudice to permit her successor personal representative to file a new complaint.

II. Standard of Review

A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v. Rozwood, 461 Mich. 109, 118, 597 N.W.2d 817 (1999). Under MCR 2.116(C)(7), if the claim is allegedly barred, the trial court must accept as true the contents of the complaint, unless they are contradicted by documentary evidence submitted by the moving party. Id., p. 119, 597 N.W.2d 817. Under MCR 2.116(C)(8), only the pleadings are considered, and the motion should be granted only if the claims are legally unenforceable. Id., pp. 119-120, 597 N.W.2d 817. Issues of statutory interpretation present questions of law and are therefore also reviewed de novo. Rohde v. Ann Arbor Pub. Schools, 265 Mich.App. 702, 705, 698 N.W.2d 402 (2005).

III. Legal Standards Applicable to Notices of Intent

A medical malpractice claimant is required, among other prerequisites to commencing suit, to provide a health facility or practitioner with a written notice of intent setting forth several statutorily enumerated statements about the intended suit. MCL 600.2912b; Roberts v. Mecosta Co. Gen. Hosp. (After Remand), 470 Mich. 679, 685-686, 684 N.W.2d 711 (2004). Specifically, under MCL 600.2912b(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.

A claimant is not required to ensure that all of the above are correct, but the claimant must make a good-faith effort to "set forth [the information] with that degree of specificity which will put the potential defendants on notice as to the nature of the claim against them." Roberts, supra at 701, 684 N.W.2d 711. The expected level of specificity must be considered in light of the fact that discovery would not yet have begun. Id., p. 691, 684 N.W.2d 711. The details need only "allow the potential defendants to understand the claimed basis of the impending malpractice action. . . ." Id., p. 692 n. 7, 684 N.W.2d 711.

The specificity required for the notice of intent is functionally indistinguishable from the standard applicable to general civil complaints. This Court has observed "that a complaint [must] contain a `statement of the facts' and the `specific allegations necessary reasonably to inform the adverse party of the nature of the claims' against it." Nationsbanc Mortgage Corp. of Georgia v. Luptak, 243 Mich.App. 560, 566, 625 N.W.2d 385 (2000), quoting MCL 2.111(B). Medical malpractice claims must be pleaded so as to "`advise the defendant with reasonable certainty, according to the circumstances of the case, of the facts upon which plaintiff proposes to rely, and will seek to prove. . . .'" Simonelli v. Cassidy, 336 Mich. 635, 644, 59 N.W.2d 28 (1953), quoting Creen v. Michigan C.R. Co., 168 Mich. 104, 111-112, 133 N.W. 956 (1911). Therefore, we conclude that the specificity required of a notice of intent as it addresses each of the subsections under MCL 600.2912b is indistinguishable from the specificity required of a medical malpractice complaint.²

With respect to a medical malpractice claim, "`it is essential to allege, with reasonable definiteness and certainty, the duty of the physician or surgeon to the person injured, the breach of duty complained of, the causal relation between the breach of duty and the injuries complained of, and resulting damage.'" Simonelli, supra at 644, 59 N.W.2d 28, quoting 70 C.J.S., Physicians and Surgeons, § 61, p. 985. Our Supreme Court more recently reaffirmed Simonelli, noting that the question "was whether the complaint . . . provided sufficient facts to support a cause of action" and that Simonelli "hinged on the importance of fair notice to the defendant and not some procedural quirk. . . ." Dacon v. Transue, 441 Mich. 315, 332-333, 490 N.W.2d 369 (1992). Significantly, our Supreme Court explained that Simonelli "applied general principles of pleading." Id., p. 332, 490 N.W.2d 369. The important principle is that a defendant must not be forced "to guess upon what grounds plaintiff believes recovery is justified," but at the same time plaintiffs should not be subject to the "straightjacket" of "[e]xtreme formalism. . . ." Id., p. 329, 490 N.W.2d 369, citing Clements v. Constantine, 344 Mich. 446, 73 N.W.2d 889 (1955).

It is therefore a deeply entrenched rule of Michigan jurisprudence and basic fairness that all pleadings are sufficient if they communicate to the opposing party the nature of the claims or defenses those pleadings purport to raise. "[I]n the absence of a contrary expression by the Legislature, well-settled common-law principles are not to be abolished by implication in the guise of statutory construction." Marquis v. Hartford Accident & Indemnity (After Remand), 444 Mich. 638, 652, 513 N.W.2d 799 (1994). A statute "in derogation of the common law, . . . though it may be for the good of the public, must be construed strictly, . . . and [its] provisions can be enforced no farther than they are clearly expressed." Sibley v. Smith, 2 Mich. 486, 490 (1853). We perceive no clear expression by the Legislature that we should impose a heavier burden of specificity on a mere notification of an impending claim than on the complaint itself.

Furthermore, our Supreme Court has explained that MCL 600.2912b only requires that the information for the categories be present in some readily decipherable form, not that it "be in any particular format." Roberts, supra at 696, 684 N.W.2d 711. Thus, although separating these pieces of information into separately headed paragraphs may be useful to the reader, and therefore may be the better practice, it is by no means necessary as long as the required information can actually be found somewhere in the document without difficulty.

IV. The Notice of Intent Here

We agree that the notice of intent at issue here could have been structured more helpfully, but we decline to read any part of the notice in isolation. Our analysis examines whether the notice contains the required information, not whether any specific portion of the notice does.

A careful reading of the notice of intent fails to reveal any indication of how Borgess Medical Center or Heart Center for Excellence, P.C., is involved in the underlying events. The notice of intent does not even indicate how the three named defendants are related....