Driver v. Naini
| Decision Date | 01 August 2011 |
| Docket Number | Docket No. 140922. |
| Citation | 802 N.W.2d 311,490 Mich. 239 |
| Parties | Willie DRIVER and Beverly Driver, Plaintiffs–Appellants,v.Mansoor G. NAINI, M.D., and Michigan Cardiology Associates, P.C., Defendants,andCardiovascular Clinical Associates, P.C., Defendant–Appellee. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Mark Granzotto, P.C. (by Mark Granzotto), Royal Oak, and Erlich, Rosen, & Bartnick, P.C. (by Sheldon D. Erlich), Southfield, for Willie and Beverly Driver.Tanoury, Nauts, McKinney & Garbarino, P.L.L.C. (by Linda M. Garbarino and David R. Nauts, Detroit), for Cardiovascular Clinical Association, P.C.Miller, Canfield, Paddock & Stone, P.L.C. (by Jaclyn Shoshana Levine and Kelly M. Drake), Lansing, for amicus curiae the Michigan Optometric Association.Kerr Russell & Weber PLC (by Daniel J. Schulte and Joanne Geha Swanson), Detroit, for amicus curiae the Michigan State Medical Society.Collins, Einhorn, Farrell & Ulanoff, P.C. (by Noreen L. Slank and Geoffrey M. Brown), Southfield, for amicus curiae PloAssurance Corporation.MARY BETH KELLY, J.
In this medical malpractice action, we must decide whether a plaintiff is entitled to amend an original notice of intent (NOI) when adding a nonparty defendant to a pending action pursuant to this Court's holding in Bush v. Shabahang1 and MCL 600.2301 so that the amended NOI relates back to the original filing for purposes of tolling the statute of limitations. We hold that a plaintiff is not entitled to amend an original NOI to add nonparty defendants so that the amended NOI relates back to the original filing for purposes of tolling the statute of limitations, and we affirm the result reached by the Court of Appeals only and reverse the Court of Appeals' judgment in all other respects.
In 2003, plaintiff Willie Driver 2 visited defendant Mansoor Naini, M.D., who administered a carcinoembryonic antigen (CEA) 3 test to plaintiff. The results indicated that plaintiff had a slightly elevated CEA level. Dr. Naini did not order a colonoscopy or take any further action even though plaintiff was over the age of 50 and had a family history of colon cancer. Shortly thereafter, plaintiff began experiencing unexplained weight loss, and in 2005 a gastroenterologist diagnosed him with stage IV colon cancer with metastasis to the liver.
On April 25, 2006, plaintiff's counsel sent a notice of intent (NOI) to file a medical malpractice action to Dr. Naini and Michigan Cardiology Associates, P.C., (MCA) as required by MCL 600.2912b(1).4 Plaintiff complied with the notice waiting period under MCL 600.2912b(1) and timely filed a complaint against Dr. Naini and MCA on October 23, 2006. 5 Plaintiff alleged that Dr. Naini had failed to properly screen for colon cancer and alleged that MCA was vicariously liable for the malpractice.
In January 2007, Dr. Naini and MCA sent a notice of nonparty at fault to plaintiff's counsel pursuant to MCR 2.112(K). Defendants named Cardiovascular Clinical Associates, P.C. (CCA) as a potential defendant. Defendants indicated that CCA might be vicariously liable because Dr. Naini worked for CCA at some point during his treatment of plaintiff.
On February 1, 2007, plaintiff sent an NOI to CCA and moved to file an amended complaint to add CCA as a defendant pursuant to MCL 600.2957(2), the nonparty fault statute.6 The circuit court granted the motion, and, 49 days later, on March 22, 2007, plaintiff filed an amended complaint and added CCA as a defendant to the action. In doing so, plaintiff failed to comply with the 91–day notice waiting period for adding a defendant to an existing medical malpractice action under MCL 600.2912b(3).7
Subsequently, CCA moved for summary disposition, arguing that plaintiff's claim against it was time-barred because the statute of limitations had expired. According to CCA, plaintiff failed to toll the statute of limitations when he did not comply with the notice waiting period. Plaintiff responded that he had timely filed the amended complaint in accord with the nonparty fault statute, MCL 600.2957(2). The circuit court agreed and denied CCA's motion.
The Court of Appeals granted CCA leave to appeal and reversed the circuit court and remanded for entry of summary disposition in CCA's favor. 8 The Court of Appeals held that plaintiff's claim accrued “at the latest” when he was diagnosed with colon cancer in November 2005 and that plaintiff had two years from that point forward to commence an action against CCA.9 The Court of Appeals reasoned that because plaintiff filed the amended complaint without first complying with the notice waiting period, the complaint failed to commence an action that tolled the statute of limitations. 10 The Court of Appeals cited Burton v. Reed City Hosp. Corp.,11 in which this Court held that a premature complaint does not commence an action that tolls the statute of limitations in a malpractice suit. 12 Here, plaintiff filed his amended complaint 49 days 13 after he sent CCA an NOI; therefore, the Court of Appeals concluded, the premature complaint did not toll the statute of limitations and plaintiff's claim had become time-barred.14
However, the Court of Appeals concluded that plaintiff's claim was saved in part by MCL 600.2957(2).15 The Court of Appeals reasoned that because plaintiff's claim was partially valid under MCL 600.2957(2), yet totally barred by MCL 600.2912b, the statutes irreconcilably conflicted. 16 The Court of Appeals concluded that MCL 600.2912b was more specific and governed because it applies only in medical malpractice actions, whereas MCL 600.2957(2) applies to actions in general.17 Accordingly, the Court of Appeals reversed the circuit court's order denying CCA's motion for summary disposition and remanded for entry of summary disposition in CCA's favor.18 Plaintiff applied for leave to appeal in this Court, and we ordered and heard oral argument on whether to grant the application.19
We review de novo a circuit court's decision on a motion for summary disposition.20 This case requires interpretation of the several statutory provisions involved. We also review de novo issues of statutory interpretation.21 When interpreting the meaning of a statute, our primary goal is to discern the intent of the Legislature by first examining the plain language of the statute.22 Statutory provisions must be read in the context of the entire act, giving every word its plain and ordinary meaning.23 When the language is clear and unambiguous, we will apply the statute as written and judicial construction is not permitted.24
MCL 600.2912b(1) requires a claimant to submit an NOI to a potential defendant before commencing a medical malpractice suit. This requirement is mandatory 25 and applies equally to individuals and professional entities, including professional corporations.26 Ordinarily, the claimant must then wait 182 days before filing a complaint.27
The Legislature set forth a different set of requirements in MCL 600.2912b(3) for adding a defendant to an existing medical malpractice action. MCL 600.2912b(3) provides for service of additional NOIs on health professionals and health facilities that will be added to an existing medical malpractice action as follows:
The 182–day notice period required in subsection (1) is shortened to 91 days if all of the following conditions exist:
(a) The claimant has previously filed the 182–day notice required in subsection (1) against other health professionals or health facilities involved in the claim.
(b) The 182–day notice period has expired as to the health professionals or health facilities described in subdivision (a).
(c) The claimant has filed a complaint and commenced an action alleging medical malpractice against 1 or more of the health professionals or health facilities described in subdivision (a).
(d) The claimant did not identify, and could not reasonably have identified a health professional or health facility to which notice must be sent under subsection (1) as a potential party to the action before filing the complaint. [Emphasis added.]
The 91–day waiting period required by MCL 600.2912b(3) is consistent with MCL 600.2957(2), which applies to lawsuits generally.28 MCL 600.2957(2) provides:
Upon motion of a party within 91 days after identification of a nonparty, the court shall grant leave to the moving party to file and serve an amended pleading alleging 1 or more causes of action against that nonparty. A cause of action added under this subsection is not barred by a period of limitation unless the cause of action would have been barred by a period of limitation at the time of the filing of the original action. [Emphasis added.]
When a claimant files an NOI with time remaining on the applicable statute of limitations, that NOI tolls the statute of limitations for up to 182 days with regard to the recipients of the NOI.29 In a medical malpractice action, a claimant normally has two years from the time his claim accrues to commence a suit.30 A medical malpractice claim accrues “at the time of the act or omission that is the basis for the claim ..., regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.” 31 However, when a plaintiff discovers a claim two or more years after the alleged negligent act occurred, then the plaintiff must commence an action “ within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later.” 32
In this case, the six-month discovery rule provides the applicable limitations period.33 Plaintiff alleged in his complaint that Dr. Naini failed to screen for cancer in 2003 after a test showed that he had an elevated CEA level. This was the negligent act that formed the basis for his claim. Because the claim accrued in 2003 and plaintiff...
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