Bush v. Shabahang
| Decision Date | 29 July 2009 |
| Docket Number | Docket No. 136983.,Docket No. 136653.,Docket No. 136617.,Calendar No. 5. |
| Citation | 772 N.W.2d 272,484 Mich. 156 |
| Parties | Gary L. BUSH, Sr., as Guardian of Gary E. Bush, a protected person, Plaintiff-Appellee, v. Behrooz-Bruce SHABAHANG, M.D., George T. Sugiyama, M.D., M. Ashraf Mansour, M.D., Vascular Associates, P.C., and Spectrum Health Butterworth Campus, Defendants, and John Charles Heiser, M.D., and West Michigan Cardiovascular Surgeons, Defendants-Appellants. Gary L. Bush, Sr., as Guardian of Gary E. Bush, a protected person, Plaintiff-Appellee, v. Behrooz-Bruce Shabahang, M.D., Defendant-Appellant, and John Charles Heiser, M.D., West Michigan Cardiovascular Surgeons, George T. Sugiyama, M.D., M. Ashraf Mansour, M.D., Vascular Associates, P.C., and Spectrum Health Butterworth Campus, Defendants. Gary L. Bush, Sr., as Guardian of Gary Edward Bush, a protected person, Plaintiff-Appellee, v. Behrooz-Bruce Shabahang, M.D., John Charles Heiser, M.D., West Michigan Cardiovascular Surgeons, George T. Sugiyama, M.D., M. Ashraf Mansour, M.D., and Vascular Associates, P.C., Defendants, and Spectrum Health Butterworth Campus, Defendant-Appellant. |
| Court | Michigan Supreme Court |
EvansPletkovic, P.C. (by Sandra L. Ganos), Huntington Woods, for the plaintiffs.
Hackney, Grover, Hoover & Bean, P.L.C. (by Richard K. Grover, Jr., Susan M. Ramage, and Jeffrey K. Wesorick), East Lansing, for Behrooz-Bruce Shabahang, M.D.
Rhoades McKee (by Mark E. Fatum and Douglas P. Vanded Berge), Grand Rapids, for Spectrum Health Butterworth Campus.
Aardema, Whitelaw & Sears-Ewald, P.L.L.C., (by Brian W. Whitelaw and Timothy P. Buchalski), Grand Rapids, for John Heiser, M.D., and West Michigan Cardiovascular Surgeons.
Mark Granzotto, P.C. (by Mark Granzotto), Royal Oak, for amici curiae the Michigan Association for Justice.
Foster, Swift, Collins & Smith, P.C. (by Richard C. Kraus), Lansing, for amici curiae the University of Michigan.
At issue before this Court is the proper interpretation of MCL 600.5856(c), 2004 PA 87, effective April 22, 2004. We have been asked to consider whether a defect in a timely mailed notice of intent (NOI), provided to a medical malpractice defendant pursuant to MCL 600.2912b, precludes the tolling of the statute of limitations on a plaintiff's medical malpractice claim. We also consider whether, and under what circumstances, a plaintiff may take advantage of the 154-day statutory waiting period provided under MCL 600.2912b(8).
We conclude that the 2004 amendments of MCL 600.5856 have significantly clarified the proper role of an NOI provided pursuant to MCL 600.2912b. While the former statute, MCL 600.5856(d), has been interpreted to preclude tolling when defects are found in an NOI, the current statute, § 5856(c), makes clear that the question whether tolling applies is determined by the timeliness of the NOI. Thus, if an NOI is timely, the statute of limitations is tolled despite defects contained therein. Moreover, in light of this significant clarification of § 5856, we hold that the purpose of the NOI statute is better served by allowing for defects in NOIs to be addressed in light of MCL 600.2301, which allows for amendment and disregard of "any error or defect" where the substantial rights of the parties are not affected and the cure is in the furtherance of justice. We hold that the mandates of § 2301 are met when a party makes a good-faith attempt to comply with the content requirements of § 2912b. Finally, we hold that a plaintiff may take advantage of the 154-day waiting period provided in § 2912b(8) where a defendant fails to make a good-faith attempt to reply to the plaintiff's NOI in compliance with the statutory content requirements.
We therefore affirm the Court of Appeals in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
The underlying facts and procedural history of this case were well set forth by the Court of Appeals. The Court of Appeals summarized:
On August 7, 2003, Gary E. Bush (Bush), who was 33 at the time, had surgery to repair an aortic aneurysm at Spectrum Health's Butterworth Campus. Shabahang and Heiser, who are surgeons employed by WM Cardiovascular performed the surgery. Plaintiff, Bush's guardian, claims that when Shabahang cut open Bush's chest, he lacerated the aneurysm, which made it necessary for Heiser to cannulate Bush's femoral artery and femoral vein so that Bush could be placed on a heart-bypass machine before the surgery could proceed. Defendants George T. Sugiyama, M.D., and M. Ashraf Mansour, M.D., who are vascular surgeons with defendant Vascular Associates, P.C., repaired Bush's femoral artery and femoral vein, respectively. According to plaintiff, the injuries Bush suffered during the surgery and during his recovery rendered him unable to lead an independent life.
On August 5, 2005, which was just days before the expiration of the applicable period of limitations, plaintiff served a notice of intent to file a medical-malpractice complaint against Shabahang, Heiser, Sugiyama, Mansour, WM Cardiovascular, Vascular Associates, and Spectrum Health. Sugiyama, Mansour, Vascular Associates, and Shabahang responded to plaintiff's notice as required by MCL 600.2912b(7). On January 27, 2006, which was 175 days after plaintiff served notice on defendants, plaintiff filed his complaint against all defendants.
Shortly thereafter, Sugiyama, Mansour, and Vascular Associates moved for summary disposition under MCR 2.116(C)(7), (8), and (10). They argued that dismissal was appropriate on two grounds: (1) plaintiff failed to file a notice that complied with the requirements of MCL 600.2912b, and (2) plaintiff failed to wait the required 182 days before filing his complaint. Shabahang, Heiser, and WM Cardiovascular joined the motion. Spectrum Health later filed its own motion for summary disposition based solely on the alleged deficiency of the notice.
In response to these motions, plaintiff argued that the notice met the minimum statutory requirements. Plaintiff responded to the allegations that the complaint was prematurely filed by arguing that the responses to the notice were deficient. Because defendants' responses to the notice were deficient, plaintiff contended that he could properly file his complaint after 154 days from the date of service of the notice. Hence, plaintiff concluded, his complaint was not prematurely filed.
The trial court determined that the notice was insufficient with regard to Sugiyama, Mansour, and Vascular Associates. On the basis of that conclusion, the trial court granted summary disposition in favor of Sugiyama, Mansour, and Vascular Associates. The trial court also granted summary disposition in favor of Spectrum Health, but only to the extent that its alleged liability was based on the actions of Sugiyama and Mansour. The trial court also granted summary disposition in favor of Spectrum Health with regard to the claims of negligence on the part of Spectrum Health's physician assistants because plaintiff failed to file a conforming affidavit of merit. However, "[a]s to the other doctors and defendants ... the Court's of the opinion that the [notice] is clearly sufficient, so those motions are denied." The trial court also determined that plaintiff's complaint was not prematurely filed.[1]
Defendants appealed the trial court's orders. The Court of Appeals consolidated defendants' applications for leave to appeal. On May 1, 2008, the Court of Appeals issued a published opinion affirming in part, reversing in part, and remanding to the trial court for further proceedings.2 The Court of Appeals held that, when read as a whole, the NOI was sufficient to comply with the requirements of MCL 600.2912b(4), except with regard to the claims of direct liability for training and supervision against West Michigan Cardiovascular. The Court also concluded that certain claims for vicarious liability against Spectrum Health were inadequately pled.3 Accordingly, the Court of Appeals reversed the trial court's denial of summary disposition on the deficiently pled direct liability claims and remanded to the trial court for an order granting the motion for summary disposition and dismissing the claims without prejudice. The Court of Appeals affirmed the trial court's ruling that plaintiff's complaint was timely filed, holding that plaintiff could avail himself of the shortened 154-day waiting period because the defendants' response to the NOI was deficient. Defendant Spectrum Health's motion for reconsideration of the opinion was denied.
Defendants filed three separate applications for leave to appeal in this Court. This Court consolidated the appeals and granted oral argument on the application.4 After oral argument on the application, this Court granted leave to appeal.5
The issues presented are issues of statutory interpretation. Statutory interpretation is a question of law, which this Court reviews de novo.6 This Court also reviews de novo a trial court's decision regarding a motion for summary disposition.7
The first issue this Court is asked to address is whether the defects identified in plaintiff's NOI act to bar tolling of the statute of limitations under MCL 600.5856(c) 2004 PA 87, effective April 22, 2004. Our analysis necessarily begins with a review of the language of § 5856 before and after the 2004 amendments.
The relevant language of § 5856(d), the predecessor to § 5856(c),8 provided that tolling is operative if the "notice is given in compliance with section 2912b." (Emphasis added.) The relevant language of § 5856(c) currently provides that tolling is operative "[a]t the time notice is given in compliance with the applicable notice period under section 2912b...." (Emphasis added.) The...
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