Bush v. Shabahang
| Decision Date | 01 May 2008 |
| Docket Number | Docket No. 274709.,Docket No. 274726.,Docket No. 274708. |
| Citation | 753 N.W.2d 271,278 Mich. App. 703 |
| Parties | Gary L. BUSH, 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, 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., West Michigan Cardiovascular Surgeons, Defendants-Appellants. Gary L. Bush, Guardian of Gary E. 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., Vascular Associates, P.C., Defendants, and Spectrum Health Butterworth Campus, Defendant-Appellant. |
| Court | Court of Appeal of Michigan — District of US |
Hackney, Grover, Hoover & Bean, PLC (by Richard K. Grover, Jr., and Thomas C. Kates), Grandville, for Behrooz-Bruce Shabahang, M.D.
Aardema, Whitelaw & Sears-Ewald (by Brian W. Whitelaw and Timothy P. Buchalski), Grand Rapids, for John C. Heiser, M.D., and West Michigan Cardiovascular Surgeons.
Rhoades McKee (by Mark E. Fatum and Douglas P. Vanden Berge), Grand Rapids, for Spectrum Health Butterworth Campus.
Before: FITZGERALD, P.J., and SMOLENSKI and BECKERING, JJ.
In this medical-malpractice case, defendant Behrooz-Bruce Shabahang, M.D., appeals by leave granted the trial court's April 28, 2006, order denying his motion for summary disposition that was based on the grounds that plaintiff's notice of intent to sue was deficient and that plaintiff prematurely filed suit. Defendants John Charles Heiser, M.D., and West Michigan Cardiovascular Surgeons (WM Cardiovascular), and, in a separate appeal, defendant Spectrum Health Butterworth Campus also appeal by leave granted the trial court's April 28, 2006, order denying their motions for summary disposition that were based on the ground that plaintiff's notice was deficient.1 The appeals were consolidated. Because we conclude that plaintiff's notice did not meet the minimum requirements of MCL 600.2912b(4) with respect to the imposition of direct liability against WM Cardiovascular and for the nursing and physician assistants of Spectrum Health, we reverse in part the decision of the trial court. However, because defendants have failed to demonstrate that the notice was otherwise deficient and plaintiff did not prematurely file suit in contravention of MCL 600.2912b, we affirm the trial court's denial of summary disposition in all other respects.
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.2 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.
The trial court entered an order reflecting its decision on April 28, 2006.
These appeals followed.
We shall first address defendants' various arguments that plaintiff's notice of intent to sue failed to satisfy the requirements of MCL 600.2912b(4).3
This Court reviews de novo a trial court's decision on a motion for summary disposition. Boodt v. Borgess Med. Ctr., 272 Mich.App. 621, 624-625, 728 N.W.2d 471 (2006). This issue also involves questions of statutory interpretation, which this Court reviews de novo. Tousey v. Brennan, 275 Mich.App. 535, 538, 739 N.W.2d 128 (2007).
Before commencing an action alleging medical malpractice against a health professional or health facility, a medical-malpractice claimant must provide each health professional and health facility written notice of intent to file a claim. MCL 600.2912b(1); see also Roberts v. Mecosta Co. Gen. Hosp. (After Remand), 470 Mich. 679, 685, 684 N.W.2d 711 (2004). The notice must include several statutorily enumerated statements about the intended suit. See MCL 600.2912b(4). Dismissal is an appropriate remedy for noncompliance with the notice provisions of MCL 600.2912b. Burton v. Reed City Hosp. Corp., 471 Mich. 745, 753, 691 N.W.2d 424 (2005). However, a notice is presumed valid until successfully challenged. Potter v. McCleary (On Remand), 278 Mich.App. 279, 286, 748 N.W.2d 599 (2008). Hence, even a deficient notice will toll the period of limitations during the notice period under MCL 600.5856(c). Potter, supra at 286, 748 N.W.2d 599. And, if the notice is successfully challenged, the remedy is dismissal without prejudice so that the plaintiff may have the opportunity to cure the deficiency within the unexpired portion of the period of limitations. Id.
Although the notice must include each of the statements enumerated under MCL 600.2912b(4), the claimant is not required to ensure that the statements are correct. Boodt, supra at 626, 728 N.W.2d 471. Rather, the claimant need only 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.'" Id., quoting Roberts, supra at 701, 684 N.W.2d 711. For that reason, the notice need only meet the level of specificity generally required of a medical-malpractice complaint. Boodt, supra at 626-627, 728 N.W.2d 471. Further, MCL 600.2912b does not require a particular format for the statements in the notice; they need only be present in some "readily decipherable form...." Boodt, supra at 628, 728 N.W.2d 471. Hence, the relevant question is not "whether any specific portion of the notice" contains the required information, but whether the notice — when read as a whole — contains the required information. Id.
WM Cardiovascular, Heiser,4 and Shabahang5 argue that plaintiff's notice failed to include a proper statement of the specific standard of care applicable to each of them. We disagree.
Under MCL 600.2912b(4)(b), plaintiff's notice had to include a statement of the standard of care. The alleged standard must be particularized for each of the professionals and facilities named in the notices. Roberts, supra at 694, 684 N.W.2d 711.
Plaintiff's notice does not adequately address the standard of care applicable to WM Cardiovascular under a direct theory of liability for failure to properly train or hire. The notice...
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