Burton v. Reed City Hosp. Corp.
| Decision Date | 23 December 2003 |
| Docket Number | Docket No. 237387. |
| Citation | 673 N.W.2d 135,259 Mich. App. 74 |
| Parties | Jack BURTON, Personal Representative of the Estate of Dale Burton, Plaintiff-Appellant, v. REED CITY HOSPITAL CORPORATION, Dr. Christopher J. Johnson, and Dr. James Johnson, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Charfoos & Christensen, P.C. (by David R. Parker), and Richard A. Lenter, P.C. (by Richard A. Lenter and Phyllis A. Figiel), Detroit, Southfield, for the plaintiff.
Aardema, Whitelaw & Sears-Ewald, PLLC (by Brian W. Whitelaw), Ada, for the defendants.
Before: SMOLENSKI, P.J., and COOPER and FORT HOOD, JJ.
Plaintiff1 appeals as of right from the trial court's order granting defendants' motion for summary disposition. We reverse.
On February 10, 2000, plaintiff filed a medical malpractice complaint, alleging that on January 17, 1998, he went to the emergency room of defendant hospital with complaints of abdominal pain, nausea, and vomiting. A procedure revealed the presence of an ulcer, and plaintiff was hospitalized and treated with medications until January 23, 1998. On January 25, 1998, plaintiff again went to the emergency room of defendant hospital with complaints of severe upper abdominal pain. On January 25, 1998, an exploratory laparotomy was performed. Plaintiff alleged in his complaint that his common bile duct and pancreatic duct were negligently transected during this procedure by the individually named defendants. Plaintiff alleged that he remained hospitalized until April 1998, and that corrective surgery was performed in November 1998. An affidavit of merit was filed with the complaint on February 10, 2000.
Defendants did not file an answer to the complaint in accordance with the court rules, and a stipulation to extend the time for filing an answer was not filed in the trial court. Rather, on March 7, 2000, defense counsel sent a letter to plaintiff's counsel indicating that the parties had agreed to extend the time for service of the response until April 28, 2000. The letter further indicated that the parties had agreed to extend the time for service of the affidavit of meritorious defense through May 28, 2000. The letter further provided that defense counsel "look[ed] forward to working with" plaintiff's counsel with respect to the case.
On May 1, 2000, defense counsel sent a second confirmation letter regarding an extension of time to file the response. This letter indicated that plaintiff's counsel's secretary had indicated that she had authorization to provide a brief additional extension of time to serve the response through May 4, 2000. This letter did not address the time for filing the affidavit of meritorious defense. It stated that the extension was necessary because the "only copy of the medical records" had been loaned to the individual defendants and were not received back in time to prepare the response to the complaint before April 28, 2000, in accordance with the prior agreement.
On May 8, 2000, defendants filed an answer to the complaint with the trial court. With the answer, defendants filed a list of affirmative defenses that included:
5. That plaintiff's claim is barred by the applicable Statute of Limitations.
* * *
12. That plaintiff has failed to comply with the provisions of MCLA 600.2912b and MCLA 600.2912d, et seq, and plaintiff's complaint must, therefore, be dismissed.
Defendants demanded a reply to their affirmative defenses. An affidavit of meritorious defense was not filed with the answer. On May 12, 2000, plaintiff filed a reply to the affirmative defenses. The reply denied each and every allegation of the affirmative defenses because "they [were] untrue." The reply further alleged that the affirmative defenses were made "as a matter of form and [did] not specifically apply to this or any other case." On May 15, 2000, defendants filed an affidavit of meritorious defense.2 On June 29, 2000, a pretrial status conference was held. The pretrial status conference summary provided that "Counsel stated that the status of the pleadings is satisfactory, pending discovery."3
On August 24, 2000, defendants moved for summary disposition pursuant to MCR 2.116(C)(8) or (10). Defendants alleged that plaintiff failed to comply with the notice provisions of MCL 600.2912 et seq. It was alleged that plaintiff's counsel sent a notice of intent to file a claim on October 18, 1999. It was alleged that because of the timing of the filing of this notice, plaintiff could not file the litigation for 182 days, or 154 days if defendants failed to respond to the notice. Defendants asserted that the filing of the complaint on February 10, 2000, was defective because it was done before the end of the notice period and that the defective filing did not toll the period of limitations. Defendants also alleged that the complaint was filed after the two-year period of limitations had expired and that the affidavit of merit was not properly authenticated.
Plaintiff opposed the motion for summary disposition, alleging that the proper remedy for plaintiff's filing of the complaint before the expiration of the notice period was dismissal without prejudice. Plaintiff further alleged that the filing was not defective because the affidavit of merit had accompanied the complaint. Lastly, plaintiff asserted that defense counsel had engaged in misconduct and acted in bad faith, raising issues of waiver and estoppel. The trial court initially denied the motion for summary disposition.4 The trial court rejected defendant's challenge to the sufficiency of the affidavit of merit itself. The trial court also rejected the allegation that defendants had waived the ground on which they based the motion for summary disposition because of their expression of satisfaction with the pleadings at the pretrial conference. The trial court further held that the pleading of the affirmative defenses was insufficient to give notice of the deficiency. Therefore, the trial court denied the motion for summary disposition and ordered a stay of the case for a period to address issues regarding the premature filing of the notice.
However, following receipt of defendants' motion for reconsideration, the trial court reversed its holding and granted defendants' motion for summary disposition. Upon further review of the affirmative defenses, the trial court held that they were sufficiently pleaded to place plaintiff on notice of a problem before the expiration of the period of limitations. The trial court held:
The court concludes that the holding in Neal [v Oakwood Hosp. Corp., 226 Mich.App. 701, 705, 575 N.W.2d 68 (1997)] requires the Court to dismiss Plaintiff's Complaint because the Complaint was filed prematurely contrary to MCL 600.2912b. The Court finds that the Complaint must be dismissed with prejudice given that the Defendants' had placed the Plaintiff on notice of the filing error in [their] affirmative defenses and that the statute of limitation had ran before the Defendants file [sic] the Motion for Summary Disposition. Both Parties concurred that the statute of limitations ran on July 26, 2000 and the Defendants file [sic] the Motion for Summary Disposition on August 24, 2000[.]
The trial court's grant or denial of summary disposition is reviewed de novo. Stone v. Michigan, 467 Mich. 288, 291, 651 N.W.2d 64 (2002). Issues of statutory construction present questions of law that are reviewed de novo. Cruz v. State Farm Mut. Automobile Ins. Co., 466 Mich. 588, 594, 648 N.W.2d 591 (2002). The primary goal of statutory interpretation is to give effect to the intent of the Legislature. In re MCI Telecommunications Complaint, 460 Mich. 396, 411, 596 N.W.2d 164 (1999). This determination is accomplished by examining the plain language of the statute itself. Id. Although a statute may contain separate provisions, it should be read as a consistent whole, if possible, with effect given to each provision. Gebhardt v. O'Rourke, 444 Mich. 535, 542, 510 N.W.2d 900 (1994). If the statutory language is unambiguous, appellate courts presume that the Legislature intended the meaning plainly expressed and further judicial construction is neither permitted nor required. DiBenedetto v. West Shore Hosp., 461 Mich. 394, 402, 605 N.W.2d 300 (2000). A corollary to the plain meaning rule is that the ordinary and accepted meaning should be given to the mandatory word "shall" and the permissive word "may." Browder v. Int'l Fidelity Ins. Co., 413 Mich. 603, 612, 321 N.W.2d 668 (1982). Statutory language should be reasonably construed, keeping in mind the purpose of the statute. Draprop Corp. v. Ann Arbor, 247 Mich.App. 410, 415, 636 N.W.2d 787 (2001). If reasonable minds could differ regarding the meaning of a statute, judicial construction is appropriate. Adrian School Dist. v. Michigan Pub. School Employees' Retirement Sys., 458 Mich. 326, 332, 582 N.W.2d 767 (1998). When construing a statute, a court must look at the object of the statute in light of the harm it is designed to remedy and apply a reasonable construction that will best accomplish the purpose of the Legislature. Marquis v. Hartford Accident & Indemnity (After Remand), 444 Mich. 638, 644, 513 N.W.2d 799 (1994). The legislative history of an act may be examined to ascertain the reason for the act and the meaning of its provisions. DeVormer v. DeVormer, 240 Mich.App. 601, 607, 618 N.W.2d 39 (2000). Legislative history is valuable when it shows actions of the Legislature intended to repudiate the judicial construction of a statute or actions of the Legislature in considering various alternatives in statutory language before settling on the language actually enacted. In re Certified Question, 468 Mich. 109, 115 n. 5, 659 N.W.2d 597 (2003). However, legislative history is afforded little significance when it is not an official view of the...
To continue reading
Request your trial
-
Burton v. Reed City Hosp. Corp.
...period. Plaintiff appealed the trial court's order to the Court of Appeals, which reversed in a published opinion. 259 Mich.App. 74, 673 N.W.2d 135 (2003). While acknowledging that dismissal is an appropriate remedy for noncompliance with the provisions of MCL 600.2912b and that when a case......