Roberts v. MECOSTA CTY. GENERAL HOSP.

• Decision Date: 22 May 2000
• Docket Number: Docket No. 212675.
• Citation: 610 N.W.2d 285,240 Mich. App. 175
• Parties: Lisa ROBERTS, Plaintiff-Appellant, v. MECOSTA COUNTY GENERAL HOSPITAL, Gail A. Desnoyers, M.D., Barb Davis, Obstetrics & Gynecology, f/k/a Gunther Desnoyers & Mekar, and Michael Atkins, M.D., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

610 N.W.2d 285

240 Mich. App. 175

Lisa ROBERTS, Plaintiff-Appellant, v. MECOSTA COUNTY GENERAL HOSPITAL, Gail A. Desnoyers, M.D., Barb Davis, Obstetrics & Gynecology, f/k/a Gunther Desnoyers & Mekar, and Michael Atkins, M.D., Defendants-Appellees.

Docket No. 212675.

Court of Appeals of Michigan.

Submitted January 4, 2000, at Grand Rapids.

Decided March 3, 2000, at 9:30 a.m.

Released For Publication May 22, 2000.

Granzotto & Nicita, P.C. (by Angela J. Nicita), Detroit, and Gary E. Levitt, Bloomfield Hills, for Lisa Roberts.

Smith, Haughey, Rice & Roegge (by Jon D. Vander Ploeg), Grand Rapids, for Mecosta County General Hospital.

Bensinger, Cotant, Menkes & Aardema, P.C. (by Kerr L. Moyer), Grand Rapids, for Gail A. DesNoyers, M.D., and Barb Davis.

Burnheimer & Company, P.C. (by Mark A. Burnheimer), Traverse City, for Michael L. Atkins, M.D.

Ford & Kobayashi, P.C. (by James B. Ford), Kalamazoo, Amicus Curiae for Michigan Trial Lawyers Association.

Before: SAWYER, P.J., and GRIBBS and McDONALD, JJ.

SAWYER, P.J.

The trial court granted defendants' motions for summary disposition on plaintiff's claims of medical malpractice on the basis of defendants' claims of deficiencies in plaintiff's notice of intent. Plaintiff appeals and we reverse and remand.

This case involves plaintiff's allegations of medical malpractice against defendants for their alleged failure to properly diagnose an ectopic pregnancy. Plaintiff alleges that the misdiagnoses caused her to lose her remaining fallopian tube.

At issue is whether plaintiff adequately complied with the statutory requirement of filing a notice of intent, before a complaint is filed. MCL 600.2912b(1); MSA 27A.2912(2)(1). Section 2912b states, in pertinent part:

(1) 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.

* * *

(4) The notice given to a health professional or health facility under this section shall contain a statement of at least all of the following:

(a) The factual basis for the claim.

(b) The applicable standard of practice or care alleged by the claimant.

(c) The manner in which it is claimed that the applicable standard of practice or care was breached by the health professional or health facility.

(d) The alleged action that should have been taken to achieve compliance with the alleged standard of practice or care.

(e) The manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice.

(f) The names of all health professionals and health facilities the claimant is notifying under this section in relation to the claim.

In addition, subsection 8 allows for a reduction in the waiting period to 154 days if the claimant does not receive a written response within 154 days of filing its notice of intent. MCL 600.2912b(8); MSA 27A.2912(2)(8).

Plaintiff's amended notice of intent was served on defendant hospital on or about September 19, 1996, and stated in pertinent part:

1. FACTUAL BASIS FOR CLAIM

This is a claim for negligence which occurred on October 4, 1994, at Mecosta County General Hospital. It is claimed that on said date while pregnant with her first child, Claimant presented herself to Mecosta County General Hospital complaining of severe pain. At that time a diagnosis of a spontaneous abortion was made and a D and C was performed. Claimant was sent home at that time.

Over the course of the next few days Claimant continued to experience pain and cramping and, on October 7, 1994, was again seen at Mecosta County General Hospital. Claimant was told that the pain she was experiencing was cramps from the D and C she had done and was sent home.

Claimant returned to the hospital on October 8,1994, wherein it was discovered that Claimant had not had a spontaneous abortion but had an ectopic pregnancy in her left tube which had burst. Emergency surgery was performed at that time and her left tube was removed.

Claimant had her right tube removed approximately ten years ago and, as a result of the negligence set forth above, she is now unable to have children.

2. THE APPLICABLE STANDARD OF PRACTICE OR CARE ALLEGED

Claimant contends that the applicable standard of care required that Mecosta County General Hospital provide the claimant with the services of competent, qualified and licensed staff of physicians, residents, interns, nurses and other employees to properly care for her, render competent advice and assistance in the care and treatment of her case and to render same in accordance with the applicable standard of care.

3. THE MANNER IN WHICH IT IS CONTENDED THAT THE APPLICABLE STANDARD OF CARE WAS BREACHED

See paragraph 2 above.

4. THE ACTION THAT SHOULD HAVE BEEN TAKEN TO ACHIEVE COMPLIANCE WITH THE STANDARD OF PRACTICE OR CARE

See paragraph 2 above.

5. THE MANNER IN WHICH THE BREACH WAS THE PROXIMATE CAUSE OF CLAIMED INJURY

See paragraph 2 above.

6. NAMES OF HEALTH PROFESSIONALS, ENTITIES, AND FACILITIES NOTIFIED

MECOSTA COUNTY GENERAL HOSPITAL AND ALL AGENTS AND EMPLOYEES, ACTUAL OR OSTENSIBLE, THEREOF

On September 23, 1996, a notice of intent was mailed to the remaining defendants. This notice of intent stated in pertinent part:

1. FACTUAL BASIS FOR CLAIM.

This is a claim for negligence which occurred on October 4, 1994, at Obstetrics & Gynecology of Big Rapids. It is claimed that on said date, while pregnant with her first child, Claimant presented herself to Barb Davis, PAC, Dr. Michael Atkins, and Dr. Gail DesNoyers complaining of severe abdominal pain and bleeding. At that time a diagnosis of a spontaneous abortion was made and a D & C was performed at Mecosta County General Hospital. Claimant was sent home at that time, despite Dr. DesNoyer's [sic] knowledge of Claimant's history of a prior ectopic pregnancy.

Over the course of the next few days, Claimant continued to experience pain and cramping and, on October 7, 1994, was seen at Mecosta County General Hospital by Dr. Michael Atkins. Claimant was told that the pain she was experiencing was cramps from the D & C she had done and was sent home.

Claimant returned to the hospital on October 8, 1994, wherein it was discovered that Claimant had not had a spontaneous abortion but had an ectopic pregnancy in her left tube which had burst. Emergency surgery was performed at that time and her left tube was removed.

Claimant had her right tube removed approximately ten years ago and, as a result of the negligence set forth above, she is now unable to have any children.

2. THE APPLICABLE STANDARD OF PRACTICE OR CARE ALLEGED

Claimant contends that the applicable standard of care required that Obstetrics & Gynecology of Big Rapids, Dr. Gail DesNoyers and Barb Davis, PAC, provide the Claimant with the services of competent, qualified and licensed staff of physicians, residents, interns, nurses and other employees to properly care for her, render competent advice and assistance in the care and treatment of her case and to render same in accordance with the applicable standard of care.

3. THE MANNER IN WHICH IT IS CONTENDED THAT THE APPLICABLE STANDARD OF PRACTICE OR CARE WAS BREACHED

Claimant claims that Obstetrics & Gynecology of Big Rapids, Dr. Gail DesNoyers and Barb Davis, PAC, failed to provide her with the applicable standard of practice and care outlined in paragraph 2 above.

4. THE ACTION THAT SHOULD HAVE BEEN TAKEN TO ACHIEVE COMPLIANCE WITH THE STANDARD OF PRACTICE OR CARE

See paragraph 2 above.

5. THE MANNER IN WHICH THE BREACH WAS THE PROXIMATE CAUSE OF CLAIMED INJURY

See paragraph 2 above.

6. NAMES OF HEALTH PROFESSIONALS, ENTITIES, AND FACILITIES NOTIFIED

OBSTETRICS & GYNECOLOGY OF BIG RAPIDS, GAIL DESNOYERS, M.D., MICHAEL ATKINS, M.D., BARB DAVIS, PAC, AND ALL AGENTS AND EMPLOYEES, ACTUAL OR OSTENSIBLE, THEREOF.

As stated above, plaintiff filed a complaint against each defendant after waiting the requisite number of days following the filing of the notice of intent. Defendants Atkins and hospital moved for summary disposition based on plaintiff's failure to file a sufficient notice of intent for a medical malpractice claim under § 2912b. Under M.C.L. § 600.5856(d); MSA 27A.5856(d), the statute of limitations is tolled if

during the applicable notice period under section 2912b, a claim would be barred by the statute of limitations or repose, for not longer than a number of days equal to the number of days in the applicable notice period after the date notice is given in compliance with section 2912b.

The trial court ruled during oral argument that the notices of intent failed to contain the minimum information required to comply with § 2912b. Specifically, the trial court found that (i) the applicable standard of care was only generally stated and failed to directly address the standard of care applicable to defendant Atkins, (ii) incorporating paragraphs 1 and 2 failed to establish breach of a standard of care with respect to defendant hospital, (iii) paragraph 4 insufficiently states what action should have been taken by defendants, and (iv) the paragraphs seem merely to indicate a "bad result," and failed to allege the proximate cause of the result. The trial court held that because the notices of intent were defective, the statute of limitations was not tolled by the statute. Therefore, the trial court granted summary disposition to defendants Atkins and hospital. The remaining defendants moved for summary disposition on the same grounds, which the trial court ultimately granted.

On appeal, plaintiff raises a number of challenges to the trial court's ruling, one of which is dispositive. Plaintiff's first argument is that defendants waived any alleged deficiencies in the notice of intent by failing to complain about any such...