Driver v. Naini.

• Citation: 287 Mich.App. 339,788 N.W.2d 848
• Decision Date: 02 March 2010
• Docket Number: Docket No. 280844.
• Parties: DRIVER v. NAINI.
• Court: Court of Appeal of Michigan — District of US

287 Mich.App. 339

788 N.W.2d 848

DRIVER

v.NAINI.

Docket No. 280844.

Court of Appeals of Michigan.

Submitted May 5, 2009, at Detroit.

Decided March 2, 2010, at 9:00 a.m.

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Mark Granzotto, P.C. (by Mark Granzotto), and Erlich, Rosen & Bartnick, PC (by Sheldon D. Erlich), for plaintiffs.

Tanoury, Nauts, McKinney & Garbarino, P.L.L.C. (by Linda M. Garbarino and David R. Nauts), for Cardiovascular Clinical Associates, P.C.

Before: WILDER, P.J., and METER and FORT HOOD, JJ.

PER CURIAM.

In this case alleging medical malpractice, defendant Cardiovascular Clinical Associates, P.C. (CCA), appeals by leave granted the circuit court's order denying its motion for summary disposition. We reverse.

The relevant facts are not disputed. Plaintiff ¹ has colon cancer, which was diagnosed in November 2005. He had treated with defendant Dr. Mansoor G. Naini before his cancer diagnosis. He claims that Dr. Naini failed to refer him for a colonoscopy.

On April 25, 2006, plaintiffs' counsel sent a notice of intent to bring their action to Dr. Naini and defendant Michigan Cardiology Associates, P.C. (MCA). On October 23, 2006, plaintiffs filed a complaint against Dr. Naini and MCA. On January 19, 2007, Dr. Naini and MCA filed a notice of nonparty fault, naming CCA.

As a result of the notice of nonparty fault, plaintiffs sent an amended notice of intent to CCA on February 1, 2007. Approximately 39 days later, on March 12, 2007, plaintiffs filed a first amended complaint, including CCA as a defendant.

CCA moved for summary disposition, under MCR 2.116(C)(7), (8), and (10). CCA argued that plaintiffs had failed to comply with the medical malpractice procedural statutes and that plaintiffs' suit was time-barred.

In response, plaintiffs acknowledged that CCA should have had 182 days of notice, but stated that the period of limitations would have expired had they waited that long. Plaintiffs argued that under subsection (2) of the nonparty fault statute, MCL 600.2957(2), they have 91 days to add a potential defendant referenced in a notice of nonparty fault. Plaintiffs also noted that no new theories of liability were being alleged, and the only theory of liability was against Dr. Naini as the agent of his corporations. CCA was alleged to be vicariously liable.

CCA replied, noting that plaintiff's medical records reflected that Dr. Naini was associated with CCA. So, plaintiff was on notice of CCA.

At the hearing, plaintiffs denied that the period of limitations expired, arguing that the notice of intent sent to CCA, within the limitations period, tolled the statute. Plaintiffs also argued that, under subsection (2) of the nonparty fault statute, MCL 600.2957(2), the amended complaint was timely. Plaintiffs argued that, under that statute, as long as they added the nonparty at fault within 91 days of the notice of nonparty fault, they are within the protection of that statute. The circuit court agreed with plaintiffs and denied the motion for summary disposition.

CCA applied for leave to appeal. This Court granted leave, limited to the issues stated in the application. Driver v. Naini, unpublished order of the Court of Appeals, entered March 21, 2008 (Docket No. 280844).

CCA first argues that plaintiffs prematurely filed suit, before the expiration of the presuit notice of intent period, and that, accordingly, the circuit court erred by denying its motion for summary disposition.

This Court reviews summary disposition rulings de novo. Thorn v. Mercy Mem. Hosp. Corp., 281 Mich.App. 644, 647, 761 N.W.2d 414 (2008). Issues of statutory construction are questions of law, reviewed de novo. Washington v. Sinai Hosp. of Greater Detroit, 478 Mich. 412, 417, 733 N.W.2d 755 (2007). Similarly, this Court reviews de novo the legal question whether a statute of limitations bars an action. Ins. Comm'r v. Aageson Thibo Agency, 226 Mich.App. 336, 340-341, 573 N.W.2d 637 (1997).

MCR 2.116(C)(7) permits summary disposition where the claim is barred because the applicable period of limitations expired before commencement of the action. In reviewing a motion under subrule (C)(7), a court accepts as true the plaintiff's well-pleaded allegations of fact, construing them in the plaintiff's favor. Hanley v. Mazda Motor Corp., 239 Mich.App. 596, 600, 609 N.W.2d 203 (2000). The Court must consider affidavits, pleadings, depositions, admissions, and any other documentary evidence submitted by the parties, to determine whether a genuine issue of material fact exists. Id. But these materials are considered only to the extent that they are admissible in evidence. In re Miltenberger Estate, 275 Mich.App. 47, 51, 737 N.W.2d 513 (2007).

A motion for summary disposition under subrule (C)(8) tests the legal sufficiency of the pleadings. Johnson-McIntosh v. Detroit, 266 Mich.App. 318, 322, 701 N.W.2d 179 (2005). The pleadings are considered alone, without consideration of evidence. MCR 2.116(G)(5). Where the parties rely on documentary evidence, appellate courts proceed under the standards of review applicable to a motion made under MCR 2.116(C)(10). The Healing Place at North Oakland Med. Ctr. v. Allstate Ins. Co., 277 Mich.App. 51, 55, 744 N.W.2d 174 (2007).

A motion made under MCR 2.116(C)(10) tests the factual support for a claim, and should be granted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The Healing Place at North Oakland Med. Ctr., 277 Mich.App. at 56, 744 N.W.2d 174. When the burden of proof at trial would rest on the nonmoving party, the nonmovant may not rest upon mere allegations or denials in the pleadings, but must, by documentary evidence, set forth specific facts showing that there is a genuine issue for trial. Id. But such evidence is only considered to the extent that it is admissible. MCR 2.116(G)(6). A genuine issue of material fact exists when the record, drawing all reasonable inferences in favor of the nonmoving party, leaves open an issue upon which reasonable minds could differ. The Healing Place at North Oakland Med. Ctr., 277 Mich.App. at 56, 744 N.W.2d 174.

Where the timeliness of a tort action is at issue, we analyze when the claim accrued, because the due date for commencing the action hinges on accrual. MCL 600.5805(1) (“[a] person shall not bring or maintain an action ... unless, after the claim first accrued ... the action is commenced within the periods of time prescribed by this section”) (emphasis added). A medical malpractice claim accrues at the time of the acts or omissions that are the basis for the claim. MCL 600.5838a(1).

Because plaintiff's colon cancer was diagnosed in November 2005, that is the latest time at which the claim accrued. MCL 600.5838a(1). Since the claim accrued, at the latest, in November 2005, plaintiffs had, at the latest, until November 2007 to commence an action against CCA. MCL 600.5805(6) (the period of limitations for malpractice is two years). The first amended complaint naming CCA was filed, and thus an action against CCA ostensibly ² commenced, in March 2007.

A medical malpractice claimant must give, to proposed defendants, notice of the intent to sue, and this must be done at least 182 days before commencing an action. MCL 600.2912b(1). ³ A notice of intent must also be separately provided to a professional corporation, if the plaintiff wants to be able to sue the professional corporation for vicarious liability for medical malpractice. Potter v. McLeary, 484 Mich. 397, 402-403, 774 N.W.2d 1 (2009).

If the claimant gives this notice of intent, the claimant tolls the two-year limitations period of MCL 600.5805(6), as against the persons who are sent the notice. MCL 600.5856(c). MCL 600.5856 states:

The statutes of limitations or repose are tolled in any of the following circumstances:

(a) At the time the complaint is filed, if a copy of the summons and complaint are served on the defendant within the time set forth in the supreme court rules.

(b) At the time jurisdiction over the defendant is otherwise acquired.

(c) At the time notice is given in compliance with the applicable notice period under section 2912b, if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given. [Emphasis added.]

Thus, the two-year limitations period is tolled, for a maximum of 182 days, if the plaintiff provides, before the period of limitations expires, a valid notice of intent. MCL 600.5856(c); Waltz v. Wyse, 469 Mich. 642, 646, 677 N.W.2d 813 (2004); Farley v. Advanced Cardiovascular Health Specialists, PC, 266 Mich.App. 566, 573, 703 N.W.2d 115 (2005) (notice of intent cannot toll the running of the period of limitations, if the limitations period has already expired before the notice was given). A claimant must then wait for the duration of the notice of intent period, before the claimant may file a complaint. Burton v. Reed City Hosp. Corp., 471 Mich. 745, 753-754, 691 N.W.2d 424 (2005). As the emphasized language makes clear, the notice of intent tolling has a maximum number of days equal to the number of days remaining in the notice period. MCL 600.5856(c).

Next, also at play in determining the timeliness of a medical malpractice action are, obviously, the limitations periods. MCL 600.5838a(2) provides the overall map of the limitations periods applicable to medical malpractice actions. It states, in relevant part:

Except as otherwise provided in this subsection, an action involving a claim based on medical malpractice may be commenced at any time within the applicable period prescribed in section 5805 or sections 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is...