Neal v. Oakwood Hosp. Corp.

• Decision Date: 12 December 1997
• Docket Number: Docket No. 196964
• Citation: 226 Mich.App. 701,575 N.W.2d 68
• Parties: William NEAL, as Next Friend of Matthew Neal, Plaintiff-Appellant, v. OAKWOOD HOSPITAL CORPORATION, Oakwood United Hospital, Inc., Susan Adelman, M.D., and Susan Adelman, P.C., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 68

575 N.W.2d 68

226 Mich.App. 701

William NEAL, as Next Friend of Matthew Neal, Plaintiff-Appellant, v. OAKWOOD HOSPITAL CORPORATION, Oakwood United Hospital, Inc. Susan Adelman, M.D., and Susan Adelman, P.C. Defendants-Appellees.

Docket No. 196964.

Court of Appeals of Michigan.

Submitted June 10, 1997, at Detroit.

Decided Dec. 12, 1997, at 9:10 a.m.

Released for Publication March 10, 1998.

Zeff and Zeff, P.C. by Paul W. Broschay and Sheryl L. Berenbaum, Detroit, for William Neal.

Kitch, Drutchas, Wagner & Kenney, P.C. by Linda M. Garbarino, Detroit, for Oakwood Hospital Corporation.

Kerr, Russell, and Weber, P.L.C. by Stephen D. McGraw and Joanne Geba Swanson, Detroit, for Susan Adelman, M.D., and Susan Adelman, P.C.

Before WHITE, P.J., and BANDSTRA and SMOLENSKI, JJ.

SMOLENSKI, Judge.

In this medical malpractice case, plaintiff William Neal, as next friend of his son, Matthew Neal, a minor, appeals as of right an order (1) granting summary disposition without prejudice in favor of defendant Oakwood Hospital Corporation, (2) granting a dismissal without prejudice to defendants Susan Adelman, M.D., and Susan Adelman, P.C. (defendant Adelman), (3) granting a dismissal without prejudice to defendant Oakwood United Hospital, Inc., and (4) denying plaintiff's motion for a stay of proceedings. We affirm.

With its enactment of 1993 P.A. 78, effective April 1, 1994, the Legislature made a number of changes to the Revised Judicature Act, including the addition of a requirement that in medical malpractice cases a potential plaintiff must give a potential defendant 182 days' notice before commencing suit. Specifically, § 2912b(1) provides as follows:

Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced. [M.C.L. § 600.2912b(1); M.S.A. § 27A.2912(2)(1).] ¹

The notice must specify the factual and legal basis for the plaintiff's claim. M.C.L. § 600.2912b(4); M.S.A. § 27A.2912(2)(4). After notice is given, the parties must allow each other access to those medical records related to the claim that are in their control. M.C.L. § 600.2912b(5); M.S.A. § 27A.2912(2)(5). The purpose of the notice requirement is to promote settlement without the need for formal litigation and reduce the cost of medical malpractice litigation while still providing compensation for meritorious medical malpractice claims that might otherwise be precluded from recovery because of litigation costs. Senate Legislative Analysis, SB 270, August 11, 1993; House Legislative Analysis, HB 4403-4406, March 22, 1993.

In this case, plaintiff's son was allegedly injured in spring 1991 by defendants' malpractice. On March 26, 1996, plaintiff filed a medical malpractice action on his son's behalf against defendants. In a letter dated March 27, 1996, plaintiff sent defendants written notice of intent to commence a medical malpractice action.

Defendant Adelman moved to dismiss plaintiff's complaint on the ground that the trial court did not have subject-matter jurisdiction because plaintiff had failed to wait 182 days after giving notice before commencing suit as required by § 2912b(1).

Plaintiff moved for a stay of proceedings until the expiration of the 182-day notice period under § 2912b(1). Plaintiff explained that he had not complied with § 2912b(1) before commencing suit on March 26, 1996, because he wanted to avoid "significant compromise and impairment of his vested rights" due to changes in the law wrought by the enactment of certain tort reform legislation that became effective upon and applied to causes of action filed on or after March 28, 1996. See, generally, 1995 P.A. 161 and 1995 P.A. 249.

Defendant Oakwood Hospital Corporation likewise moved for summary disposition and dismissal on the same ground asserted by defendant Adelman.

The trial court granted defendants' motions and denied plaintiff's motion for a stay of proceedings. ² The trial court found that § 2912b(1) was both "a condition precedent to filing" a medical malpractice action and a substantive, not procedural, rule. The trial court further found that § 2912b(1) was constitutional, reasoning that the 182-day notice requirement was rationally related to the Legislature's goal of trying to cut the costs of medical care and medical malpractice insurance. The court determined that because § 2912b(1) was constitutional, it did "not have jurisdiction to properly stay anything."

On appeal, plaintiff raises no issue with respect to the 1995 legislation. Rather, plaintiff raises a number of constitutional and nonconstitutional challenges to § 2912b(1). We will address plaintiff's nonconstitutional challenge first. ³ Specifically, plaintiff argues that the trial court should have stayed, not dismissed, plaintiff's suit. This argument implies that the trial court had the discretion to do so. However, as we read the motion transcript, it appears that the circuit court believed that it could not stay the proceedings because it did not have subject-matter jurisdiction to do so. Plaintiff does not address this issue. However, whether a court has subject-matter jurisdiction is a question of law that may be raised at any time. Phinney v. Perlmutter, 222 Mich.App. 513, 521, 564 N.W.2d 532 (1997).

As explained in Bowie v. Arder, 441 Mich. 23, 490 N.W.2d 568 (1992), subject-matter jurisdiction

"is the right of the court to exercise judicial power over that class of cases; not the particular case before it, but rather the abstract power to try a case of the kind or character of the one pending; and not whether the particular case is one that presents a cause of action, or under the particular facts is triable before the court in which it is pending, because of some inherent facts which exist and may be developed during the trial." [Id. at 39, 490 N.W.2d 568, quoting Joy v. Two-Bit Corp., 287 Mich. 244, 253-254, 283 N.W. 45 (1938).]

As further explained in Bowie:

"The loose practice has grown up, even in some opinions, of saying that a court had no 'jurisdiction' to take certain legal action when what is actually meant is that the court had no legal 'right' to take the action, that it was in error. If the loose meaning were correct it would reduce the doctrine of res judicata to a shambles and provoke endless litigation, since any decree or judgment of an erring tribunal would be a mere nullity." [Id. at 40, 490 N.W.2d 568, quoting Buczkowski v. Buczkowski, 351 Mich. 216, 222, 88 N.W.2d 416 (1958).]

A court's subject-matter jurisdiction is determined only by reference to the allegations listed in the complaint. Grubb Creek Action Committee v. Shiawassee Co. Drain Comm'r, 218 Mich.App. 665, 668, 554 N.W.2d 612 (1996). If it is apparent from the allegations that the matter alleged is within the class of cases with regard to which the court has the power to act, then subject-matter jurisdiction exists. Id.

In this case, it is apparent from the allegations in plaintiff's medical malpractice complaint that the matter alleged, i.e., negligence, is within the class of cases with regard to which the circuit court has the power to act. Const.1963, art. 6, § 13; M.C.L. § 600.601; M.S.A. § 27A.601, M.C.L. § 600.605; M.S.A. § 27A.605; see also Bowie, supra. Plaintiff's failure in this particular case to comply with the notice requirement before commencing suit did not divest the circuit court of subject-matter jurisdiction. Accord Lisee v. Secretary of State, 388 Mich. 32, 41-42, 199 N.W.2d 188 (1972) (one-year notice of intent to claim against the motor vehicle accident claims fund, M.C.L. § 257.1118; M.S.A. § 9.2818, is not jurisdictional); see also Hosp. Corp. of America v. Lindberg, 571 So.2d 446, 448 (Fla., 1990) (the plaintiff's failure in a medical malpractice action to give statutorily required prefiling notice ⁴ to potential defendants did not divest the trial court of subject-matter jurisdiction); Morrison v. Bestler, 239 Va. 166, 173, 387 S.E.2d 753 (1990) (the plaintiff's failure to comply with statute providing that no medical malpractice action " 'shall be brought within ninety days' after notice" of the malpractice claim ⁵ did not divest the court of subject-matter jurisdiction); Dougherty v. Oliviero, 427 A.2d 487, 489 (Me., 1981) (the statutory requirement of presuit notice ⁶ in medical malpractice cases has no relationship to the court's jurisdiction).

Having determined that plaintiff's failure to comply with § 2912b(1) did not divest the circuit court of subject-matter jurisdiction, we next consider the issue whether a dismissal without prejudice was the appropriate sanction for plaintiff's noncompliance with § 2912b(1). In contending that a stay of proceedings was appropriate, plaintiff relies on Dempsey v. Langton, 266 Mich. 47, 51, 253 N.W. 210 (1934), in which our Supreme Court held in circumstances dissimilar to this case "that an action prematurely brought must be abated even though the right of action has matured before trial." However, in response we simply note that in Jenkins v. Stewart, 271 Mich. 522, 261 N.W. 80 (1935), our Supreme Court held, again in circumstances dissimilar to this case, that the trial court should have granted the defendant's motion to dismiss a prematurely filed complaint. Thus, we are not persuaded by plaintiff's reliance on Dempsey.

More on point is plaintiff's reliance on Angrand v. Fox, 552 So.2d 1113 (Fla.App., 1989). In that case, the plaintiff served on the defendant doctors a notice of intent to initiate medical malpractice litigation. Id. at 1114. Less than ninety days later, the plaintiff filed a medical malpractice suit against these defendants. Id. The trial court dismissed the action on the ground that it had been commenced in violation of a Florida s...