Potter v. McLeary

Decision Date31 July 2009
Docket NumberCalendar No. 7.,Docket No. 136336.
Citation484 Mich. 397,774 N.W.2d 1
PartiesBrian POTTER, Plaintiff-Appellant, v. Richard C. McLEARY, M.D., Gary Augustyn, M.D., St. Joseph Mercy Hospital Ann Arbor, d/b/a Trinity Health-Michigan, Robert Domeier, D.O., and Emergency Physicians Medical Group, P.C., Defendants, and Kristyn H. Murry, M.D., and Huron Valley Radiology, P.C., Defendants-Appellees.
CourtMichigan Supreme Court

Mark Granzotto, P.C. (by Mark Granzotto), and J. Martin Bartnick, Royal Oak, for Brian Potter.

Chapman and Associates, P.C. (by Ronald W. Chapman and Brian K. Richtarcik), Bloomfield Hills, for Huron Valley Radiology, P.C., and Kristyn Murry, M.D.

Tanoury, Corbet, Shaw, Nauts & Essad, P.L.L.C. (by Linda M. Garbarino) for amicus curiae Cardiovascular Clincial Associates, P.C.



At issue before this Court is the proper interpretation of the statutory provision requiring a notice of intent to sue (NOI) in medical malpractice actions.1 This case raises the issue whether a professional corporation (PC) must be provided an NOI before the commencement of the medical malpractice action. It also raises the issue of what statements must be set forth in an NOI to satisfy the requirements of MCL 691.2912b(4) when a claim being made against the PC is based solely on a PC's vicarious liability for its physician.

We hold, on the basis of the plain language of the relevant statutes, that when claims alleged against a PC are predicated on its vicarious liability for a licensed health care provider rendering professional services, an NOI must be provided. The NOI provision, MCL 600.2912b, clearly states that a plaintiff must provide all health professionals and health facilities an NOI before commencing a medical malpractice action. MCL 600.5838a delineates those health care providers and facilities against which claims of medical malpractice may be asserted.2 Claims asserted against providers and facilities not delineated in § 5838a sound in ordinary negligence.3 Because § 5838a specifically refers to PCs in its definitional section, a claim against a PC sounds in malpractice, but only when the claim asserted against the PC is for rendering professional services as defined in MCL 450.225. Under these circumstances, a PC must be provided an NOI.4 The claim against Huron Valley Radiology, P.C., is one based on vicarious liability for the professional services of its licensed health care provider-employee; hence, plaintiff Brian Potter was required to provide a timely NOI as the action is one sounding in medical malpractice.

Moreover, we hold that the NOI filed in this case was fully compliant with the plain language of § 2912b(4), which governs its contents. First, there is no requirement in § 2912b(4) to set forth the legal relationships between named parties; rather, the plain language of § 2912b(4)(f) only requires naming each party to be sued. Secondly, where the only claim asserted against a PC is one for vicarious liability, and hence no other standard of care is being asserted against the PC, there is no requirement within § 2912b that mandates that a claimant set forth the legal doctrine of vicarious liability in the NOI.

The claim at issue in this case was one for vicarious liability only. In light of MCL 450.225, a PC can only render professional services through its licensed health care provider. Where the NOI names both the PC and the provider, the NOI is fully compliant as long as it sets forth all the factual and medical information necessary to inform the PC of the nature of the claim being asserted against the physician-provider. Because this NOI met these requirements, it is fully compliant and there is no need to dismiss this action on the basis of the NOI. We therefore reverse the Court of Appeals judgment and remand the case to the trial court for further proceedings consistent with this opinion.


This is a medical malpractice action involving an alleged misreading of an MRI by defendant Kristyn H. Murry, M.D., on June 7, 2001. This misreading allegedly caused a delay in a needed emergency surgical procedure on plaintiff's spine. This delay resulted in permanent nerve damage to plaintiffs spine that impairs his ability to function, including causing difficulty with such things as walking and urinating. At the time of the alleged malpractice, Murry was employed by Huron Valley Radiology.

The procedural history of this case is complicated and lengthy. This case has been pending in our appellate system for over four years as the courts have conducted an exhaustive review of the content of Potter's affidavit of merit and his NOI. The Court of Appeals has issued two opinions, and we are reviewing this case for the second time.5 The most recent Court of Appeals opinion summarized this long journey through our appellate system and the reasoning behind the rulings:

In these consolidated appeals, defendants appealed by leave granted orders in this medical malpractice action denying their motions for summary disposition pursuant to MCR 2.116(C)(7). Previously, a majority of this Court reversed, holding that plaintiff's complaint should be dismissed with prejudice because the attached affidavits of merit did not conform to the requirements of MCL 600.2912d. Potter v. McLeary, 274 Mich.App. 222, 732 N.W.2d 600 (2007). In lieu of granting leave to appeal, our Supreme Court reversed the portion of this Court's judgment "dismissing the complaint with prejudice, because the dismissal should have been without prejudice...." See 480 Mich. 915, 739 N.W.2d 866 (2007) (emphasis in original). Our Supreme Court remanded to this Court for consideration of the remaining issues not addressed previously. We now affirm in part, reverse in part, and remand.

As noted in our previous opinion, the alleged malpractice took place on June 7, 2001. The period of limitations in medical malpractice cases is two years from the date the claim accrued. MCL 600.5805(6). Presuming the notice of intent was sufficient, the running of the period of limitations would have been tolled for 182 days from the date of the notice. MCL 600.2912b(1). A notice of intent was sent to defendants Huron Valley Radiology, P.C., and Kristyn H. Murry, M.D., on May 30, 2003, leaving eight days remaining before the period of limitations expired. A notice of intent was sent to defendants St. Joseph Mercy Hospital Ann Arbor, Robert Domeier, D.O., and Emergency Physicians Medical Group, P.C., on May 13, 2003, leaving 25 days before the period of limitations expired. The notices tolled the running of the limitations periods, which recommenced on November 30, 2003, and on November 13, 2003, respectively. The limitations period expired on December 8, 2003, for all defendants. Plaintiff's complaint was filed on November 4, 2003.

There was no serious dispute in our prior decision that the affidavits of merit were fatally defective because they failed [to] state how the physicians' alleged failures related to plaintiff's alleged injuries, so they did not contain the required statement of proximate cause. See MCL 600.2912d. No conforming affidavits of merit were filed by December 8, 2003. A majority of this Court previously determined that plaintiff had therefore not filed an affidavit of merit at all, pursuant to Geralds v. Munson Healthcare, 259 Mich.App. 225, 240, 673 N.W.2d 792 (2003), and Mouradian v. Goldberg, 256 Mich.App. 566, 574, 664 N.W.2d 805 (2003), so plaintiff's complaint should be dismissed with prejudice. This Court therefore deemed it unnecessary to address defendants' challenges to plaintiff's notices of intent.

After this Court's previous decision, our Supreme Court overruled Geralds and Mouradian as having misapplied the case of Scarsella v. Pollak, 461 Mich. 547, 553, 607 N.W.2d 711 (2000). Kirkaldy v. Rim, 478 Mich. 581, 583-584, 734 N.W.2d 201 (2007). Our Supreme Court explained that Scarsella had only held that "a medical-malpractice complaint filed without an affidavit of merit" was ineffective and would not toll the running of the applicable limitations period. Id. at 584, 607 N.W.2d 711 (emphasis in original). It further explained that Geralds and Mouradian had wrongly extended that holding to medical-malpractice complaints that were actually filed with affidavits of merit, but where those affidavits of merit failed to conform to the requirements of MCL 600.2912d. Kirkaldy, supra at 584-585, 734 N.W.2d 201. Our Supreme Court concluded that an affidavit of merit is presumptively valid — and therefore tolls the running of a limitations period when filed with a complaint — until successfully challenged in a judicial proceeding. Id. at 585-586, 734 N.W.2d 201. "Thus, if the defendant believes that an affidavit is deficient, the defendant must challenge the affidavit," and the proper remedy for a successful challenge is dismissal without prejudice, affording the plaintiff "whatever time remains in the period of limitations" to file a complaint with a conforming affidavit. Id. at 586, 734 N.W.2d 201.

Our Supreme Court's partial reversal in this case was based on its decision in Kirkaldy. As applied to the case at bar, plaintiff's complaint, filed with the affidavits of merit, tolled the running of the limitations period. Because we conclude that those affidavits of merit did not conform to the requirements of MCL 600.2912b, the proper remedy is for the trial court to dismiss plaintiff's complaint without prejudice. Plaintiff may then file a new complaint with conforming affidavits of merit within the time remaining in the limitations period.

Because we declined to do so previously, we must address defendants Murry's and Huron Valley Radiology's challenges to the sufficiency of the notices of intent sent to them. Murry and Huron Valley Radiology first argue that the notice does not properly state the applicable standard of practice or care as required...

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