Michigan Supreme Court Lansing, Michigan

Marilyn Kelly,
Chief Justice

Michael F. Cavanag h

Elizabeth A. Weave r

Maura D. Corriga n Robert P. Young, Jr. Stephen J. Markma n Diane M. Hathaway,

J ustices 

# Order

April 23, 2010

139288

BRUCE ESSELMAN, as Personal Representative of the Estate of David Esselman, Deceased, Plaintiff-Appellee,

v SC: 139288 COA: 280723 Wayne CC: 06-609170-NH GARDEN CITY HOSPITAL, Defendant,

and

DAVID J. FERTEL, D.O., DAVID FERTEL, D.O., P.L.L.C., and D. FERTEL, D.O., P.C., Defendants-Appellants.

________________ _______________ __________/

On order of the Court, the application for leave to appeal the June 4, 2009 judgment of the Court of Appeals is consid ered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

K ELLY , C.J. ( concurring ).

I concur in the Court’s order denying defe ndants’ application fo r leave to appeal. I write separately in response to Justice Y OUNG ’s dissenting statement.

Justice Y OUNG claims that this case represents another instance “where members of the Court’s new philosophical majority seem to retreat from its previously stated fidelity to stare d ecisis.” Justice Y OUNG has repeated this claim on numerous occasions over the last year with th e same string of citations. 1 A review of the cases in the string

1 See, e.g., Anglers of the AuSable, Inc. v DEQ , 485 Mich ___ (2010) (Y OUNG , J., dissenting); compare Potter v McLeary , 484 Mich 397, 426-427 (2009) (K ELLY , C.J., concurring), with Potter , 484 Mich at 450 n 43 (Y OUNG , J., concurring in part and dissenting in part).2

citation serves to illustrate th at the claim is inaccurate. 2 Had other justices been in the majority in some of the de cisions complained about, they might well have extended existing precedent. But the refu sal of those in the majority to extend precedent is quite different from a refusal on their part to apply it to a case on point. This is a distinction

that Justice Y OUNG would do well to concede.

Here, plaintiff sent a notice of intent (NOI) as required by MCL 600.2912b to eighteen potential medical malpractice defendant s, including doctors, nurses, professional corporations, and the hospital at which plaintiff was treate d. Plaintiff’s subsequent complaint named some of those defendants. After discovery, defendants moved for summary disposition on the ground that plaintiff’s NOI was deficient. The trial court denied the motion. The Court of Appeals affirmed the denial. 3

Defendants claim that the NOI was defici ent because it does not properly state the standard of care applicable to each potential defendant. However, MCL 600.2912b does not require a plaintiff’s NOI to explicitly lin e up particularized standards of care with individual defendants. Rather, as we held in Roberts v Mecosta Co Hosp

, 4 an NOI must provide a defendant with notice sufficient to allow it to discern the general nature of the cause of action to be launched against it. 5

Plaintiff’s NOI satisfied th e statutory requirements and Roberts . It named all of the potential defendants. At several points th roughout its factual statement, it pointed out why surgery should have been performed well before it was ac tually performed. It also included a lengthy narrative id entifying the potential defenda nts and alleging what they

did or did not do and how thei r behavior was negligent and br eached the standard of care.

2 In those cases, Justice Y OUNG opined that a case was contro lled by existing precedent. He was entitled to that opinion then and is assuredly entitled to it in this case. But as evidenced by this case, his opinion may not be shared by others on th e Court. This is especially true in cases involving factua l scenarios significantly different from those involved in the precedent Justice Y OUNG seeks to apply.

3 Esselman v Garden City Hosp , 284 Mich App 209 (2009).

4 Roberts v Mecosta Co Hosp , 470 Mich 679 (2004).

5 More specifically, Roberts held that the plaintiff’s NOI was deficient because it failed to indicate whether plaintiff was alleging vicari ous or direct liability. While the complaint appeared to allege vicarious liability for th e negligence of the hospital’s agents, “the [NOI] implied that plaintiff alleged dire ct negligence against these defendants for negligently hiring or negligently granting staff privileges to the individual defendants.” Id . at 693. Thus, as the Co urt of Appeals in this ca se correctly opined, under Roberts , an NOI “does not need to contain any explicit st atement of whether a corporate defendant is directly or vicariously liable; rather, it only needs to serve ad equate notice to the defendants whether plaintiff intends to proceed against them on a vicarious liability theory.” Esselman , 284 Mich App at 218.3

Thus, there is no basis for Justice Y OUNG ’s claim that we failed to apply the requirements of § 2912b and Roberts , let alone that we have abandoned precedent. Perhaps Justice Y OUNG would prefer to extend Roberts beyond its reach, but surely we are under no duty to do so in this case or in any other.

Finally, assuming arguendo that plai ntiff’s NOI was deficient, Justice Y OUNG ignores the fact that this case has prog ressed through the filing of a complaint with affidavits of merit, discovery, and settlement efforts. Therefore, there is no practical value to amending or curing plaintiff’s pre suit notice, especially in light of our decision

in Bush v Shabahang

. 6

For these reasons, I concur with the Co urt’s order denying defe ndants’ application for leave to appeal.

M ARKMAN , J. ( concurring ).

I concur in the order denying defendants’ application for leave to appeal. I do so because, while plaintiff’s notice of intent ( NOI) could have been written in a far better structured manner, it nonetheless satisfies th e requirements of the NOI statute, MCL 600.2912b(4), and the standards of Roberts v Mecosta Co Hosp , 470 Mich 679 (2004).

MCL 600.2912b(4) sets forth the requirements with which a NOI must comply. The statute requires, inter alia , that the NOI contain the applicable standard of care, the

manner in which the standard of care was brea ched, and the actions that should have been taken to achieve compliance with the alleged standard of care. Id. In Roberts

, this Court stated that a claimant is required to “make a good-faith effort to aver the specific standard

of care that she is claiming to be applicable to each partic ular professional or facility that

is named in the notice.” 470 Mich at 692. Roberts specifically explained, however, that “nothing in § 2912b(4) requires that the notice be in any particular format.” Id. at 696. Rather, as Roberts recognized, what a NOI must do is “i dentify, in a readily ascertainable manner, the specific informati on mandated by § 2912b(4).” 7 Id.

6 Bush v Shabahang , 484 Mich 156 (2009) (holding th at defects in an NOI can be disregarded under MCL 600.2301).

7 I respectfully disagree with Justice Y OUNG that the Court of Appeal s’ statement that the plaintiffs need not “ line particularized standards up to individual defendants,” Esselman v Garden City Hospital

, 284 Mich App 209, 21 7 (2009) (emphasis added), contradicts the rule in Roberts. Whether a NOI “lines up” standards of care to individual defendants is essentially a matter of format, and Roberts expressly does not requ ire that a NOI be in any “particular format.” 470 Mich at 696. Therefore, I do not agree that the Court of Appeals adopted a “revision of the Roberts legal standard.” As Justice Y OUNG himself recognizes, what Roberts requires is that a plaintiff include “the particular standard of practice or care applicable to each of the various defendants.” Id. at 690. This, plaintiff did do, albeit with less clarity than he might have.4

The NOI at issue here meets the require ments of MCL 600.2912b(4) as explicated by Roberts. The notice’s seven-page “factual basis” section provided a detailed narrative

that named each defendant and de scribed what each did or did not do. Thereafter, in the “standard of care” section, plai ntiff set forth the applicable standards employing similar language as in the “factual basis” section, even in many instances identifying to whom a particular standard applies by referring to the “physicians,” “nursing staff,” or “anesthesiologist.” When vi ewed in combinatio n with the lengthy factual narrative—

which did name the individual defendants and de scribe what each did or did not do— defendants could, in my judgment, “readily ascertain” which standards of care were applicable to them. Importantly , this is also true of the hospital-defendants because the NOI identified residents and nurses by name, an d specified their allege d breaches, so that a corporate entity would know which employees and whic h agents were allegedly negligent.

In sum, by carefully reading the NOI in its entirety, potential defendants were able to “identify, in a readily ascertainable manner, the specific information mandated by § 2912b(4).” 8 Roberts

, 470 Mich at 696. A different, a nd better, format could have more clearly matched each defendant with their respective standa rd of care, but this NOI—

when viewed in its entir ety—sufficiently provided this same information.

W EAVER , J., would grant leave to appeal.

Y OUNG , J. ( dissenting ).

I dissent from the majority’s denial of le ave because the plaintiff’s Notice of Intent (NOI) was defective. Accord ingly, I would vacate the Court of Appeals majority decision for the reasons stated in Judge S AAD ’s dissenting opinion and, because current Michigan law so requires, re mand this case for further proceedings consistent with Bush v Shabahang. 9 The majority’s failure to do so indicates its unwillingness to apply the requirements of the NOI statute and Roberts v Mecosta Co Gen Hosp (After Remand)

. 10

8 Because this NOI satisfied the requirements of § 2912b(4) and Roberts

, I respectfully disagree with Justice Y OUNG that this case ev idences disregard for precedent. Further, although I join Chief Justice K ELLY in concurring with the instant order, I do not share her interpretation of Roberts

, which she suggests merely requ ires that a NOI “provide a defendant with notice sufficien t to allow it to discern the general nature of the cause of action to be launched against it.” (E mphasis added.) In my judgment, Roberts require considerably more and, as Justice Y OUNG correctly asserts, Roberts remains the binding law of this state. Under Roberts , a claimant is “required to . . . provide de tails that are responsive to the information sought by the statute and that are as particularized as is consistent with the early notice stage of the proceedings.” 470 Mich at 701.

9 484 Mich 156 (2009). I continue to adhere to my position that Bush was wrongly decided, for the reasons stated in my dissent. Nevertheless, I recognize that its validity is5

Plaintiff sent an NOI to multiple de fendants, including doctors, nurses, professional corporations, and th e hospital that treated plainti ff. Although the standard of care applicable to some of these defendants is not the same one applicable to others, in responding to the statutory duty to describe the standard of care applicable to the potential defendants, the plaintiff provided a laundry list of thirteen requirements, many

of which failed to differentiate between the different standard s of care owed by different defendants. Similarly, the plaintiff’s articul ation of the manner in which the standard of care was breached, and of the actions that shou ld have been taken to comply with the standard of care, failed to differentiate be tween the defendants. Defendants Garden City Hospital and Dr. David Fertel moved for, inte r alia, summary disposition on the basis of this alleged deficiency in the NOI. The tr ial court denied summary disposition, and the Court of Appeals affirmed, in a divided, published opinion. 11

The goal of the NOI ente rprise is to give defend ants accused of medical malpractice reasonable notice of the nature of the claim and how the plaintiff contends they breached the relevant stan dard of care. This represen ts a significant legislative change in the medical malpractice regime, in which practitioners prev iously found out the nature of the claims lodged against them onl y after a complaint had been filed and during discovery. As such, the NOI procedure should not be diminished as the Court of Appeals has done here with the comp licity of this Court. This Court of Appeals decision reintroduces the gamesmanship that the Legisl ature sought to end by introducing the NOI step in the litigation process.

As this Court stated in Roberts , the NOI must refer to “the particular standard of practice or care applicable to each of the various defendants.” 12 The plaintiff is therefore required “to make good-faith av erments that provide details that are responsive to the information sought by the statute and that are as particularized as is consistent with the early notice stage of the proceedings.” 13 This Court’s decision in Bush v Shabahang controls only the effect of a defective noti ce of intent and therefore leaves intact the Roberts requirements which describe how to determine whether an NOI is defective.

not at issue in this case and that it remain s the binding precedent of this Court until it is overturned.

10 470 Mich 679 (2004).

11 284 Mich App 209 (2009).

12 Roberts , 470 Mich at 690. (Emphasis added.)

13 Id . at 701. (Emphasis in original.)6

Here, the Court of Appe als majority ignored the Roberts requirements, merely stating that the instant NOI provided greater detail than the “tau tologies” that the Roberts

NOI stated. 14 Moreover, the Court of Appeals majo rity’s statement that the plaintiffs need not “line particularized stan dards up to individual defendants,” 15 contradicts the rule

of law that this Court articulated in Roberts , requiring plaintiffs to include “the particular standard of practice or care applicable to each of the various defendants.” 16 This

statement has been made in a published Court of Appeals decision that this Court is allowing to stand, even though it plainly contradicts Roberts

. 17 In contrast, Judge S AAD ’s dissent correctly applied the Roberts standard:

[W]hile plaintiff set forth a recitation of facts about his hospitalization, he made no effort to provide notice of which standard of care applied to or was breached by each named health professi onal or facility, a list that includes medical practices and professionals of varying types, training, and specialties. [18]

Judge S AAD did not have the benefit of th is Court’s recent decision in Bush v Shabahang

, which, as stated, details the e ffect of a deficient NOI. Under Bush , defendants are not necessarily entitled to summary disposition, as Judge S AAD ’s dissenting opinion would have held. Nevertheless, Judge S AAD applied Roberts correctly to conclude that the plaintiff filed a deficient NOI.

This denial order is another instance where members of the Court’s new philosophical majority seem to retreat from its previously stat ed fidelity to stare decisis. 19

14 Esselman , 284 Mich App at 217.

15 Id . at 216.

16 Roberts , 470 Mich at 690.

17 Having signed the Roberts opinion, Justice M ARKMAN , I assume, does not agree with this Court of Appeals revision of the Roberts legal standard.

18 Id . at 228 (S AAD , J., dissenting).

19 See, e.g., Pohutski v City of Allen Park , 465 Mich 675, 712 (2002) (K ELLY , J., dissenting) (“[I]f each successive Court, believ ing its reading is correct and past readings wrong, rejects precedent, then the law will fluctuate from year to year, rendering our jurisprudence dangerously unstable.”); People v Hawkins , 468 Mich 488, 517-518 (2003) (C AVANAGH , J., dissenting) (“We have overruled our precedents when the intervening development of the law has ‘removed or we akened the conceptual underpinnings from the prior decision, or where the later law has rendered the decision irreconcilable with competing legal doctrines or policies.’. Ab sent those changes or compelling evidence bearing on Congress’ original intent . . . our system demands that we adhere to our prior interpretations of statutes.”), quoting Patterson v McLean Credit Union , 491 US 164, 173 (1989) and Neal v United States , 516 US 284, 295 (1996); Rowland v Washtenaw Co Rd Comm , 477 Mich 197, 278 (2007) (C AVANAGH , J., dissenting) (‘“Under the doctrine of7

Since the shift in the Court’ s philosophical majority in Ja nuary 2009, the new majority has pointedly sought out precedents only recently decided 20 and has failed to give effect to other recent precedents of this Court. 21 Today, the Court again fails to give effect to a

stare decisis, principles of law deliberately examined and decided by a court of competent jurisdiction become precedent which should not be light ly departed.’”), quoting People v
Jamieson , 436 Mich 61, 79 (1990); Brown v Manistee Co Rd Comm , 452 Mich 354, 365 (1996) (“Absent the rarest circumstances, we should remain fa ithful to established precedent.”); Todd C. Berg, Hathaway attacks , Michigan Lawyers Weekly, October 27, 2008 (“‘People need to know what the law is,’ Ha thaway said. ‘I believe in stare decisis. Something must be drastically wro ng for the court to overrule.’”); Lawyers' election guide: Judge Diane Marie Hathaway , Michigan Lawyers Weekly , October 30, 2006, in which Justice H ATHAWAY , then running for a position on the Cour t of Appeals, was quoted as saying: “[t]oo many appellate decisi ons are being decided by judicial activists who are overturning precedent.”

20 See, e.g., University of Michigan Regents v Titan Ins Co , 484 Mich 852 (2009) (directing the parties to consider whether Cameron v ACIA , 476 Mich 55 (2006), was correctly decided); McCormick v Carrier , ___ Mich ___ (2009) (Docket No. 136738, order entered August 20, 2009 ) (granting leave to consider the plaintiff’s request to overrule Kreiner v Fischer , 471 Mich 109 (2004)); Lenawee Co Bd of Rd Comm’rs v State Auto Prop & Cas Ins Co , ___ Mich ___ (2009) (Docket Nos. 137667-8, order entered September 2, 2009) (directi ng the parties to consider whether Miller v Chapman Contracting , 477 Mich 102 (2007), was correctly decided); Edry v Adelman , ___ Mich ___ (2009) (Docket No. 138187, order entered September 30, 2009) (directing the parties to consider whether Wickens v Oakwood Healthcare Sys , 465 Mich 53 (2001), was correctly decided); Hoover v Michigan Mut Ins Co , ___ Mich ___ (2 009) (Docket No. 138018, order entered September 25, 2009) (d irecting the parties to consider whether Griffith v State Farm Mu t Automobile Ins Co , 472 Mich 521 (2 005), was correctly decided); Lansing Schools Education Ass’n v Lansing Bd of Ed , ___ Mich ___ (2009) (Docket No. 138401, order entered November 19, 2009) (directing the parties to consider whether Lee v Macomb Co Bd of Comm’rs , 464 Mich 726 (2001), was correctly decided); Anglers of the AuSable v De p’t of Environmental Quality , ___ Mich ___ (2010) (directing the parties to consider whether Michigan Citizens v Nestlé Waters , 479 Mich 280 (2007), and Preserve the Dunes v DEQ , 471 Mich 508 (200 4), were correctly decided); Colaianni v Stuart Fr ankel Development Corp , ___ Mich ___ (2010) (granting to consider whether Trentadue v Buckler Auto matic Lawn Sprinkler , 479 Mich 378 (2007), was correctly decided).

21 See, e.g., Hardacre v Saginaw Vascular Services , 483 Mich 918 (2009), where the majority failed to follow Boodt v Borgess Med Ctr , 481 Mich 558 (2008); Sazima v Shepherd Bar & Restaurant

, 483 Mich 924 (2009), wh ere it failed to follow Chrysler v Blue Arrow Transport Lines , 295 Mich 606 (1940), and Camburn v Northwest School
Dist , 459 Mich 471 (1999); Vanslembrouck v Halperin , 483 Mich 965 (2009), where it failed to follow Vega v Lakeland Hosps , 479 Mich 243, 244 (2007); Juarez v Holbrook

, 483 Mich 970 (2009), wh ere it failed to follow Smith v Khouri , 481 Mich 519 (2008); Beasley v Michigan , 483 Mich 1025 (2009), Chambers v Wayne Co Airport Auth , 483 Mich 1081 (2009), and Ward v Michigan State Univ , ___ Mich ___ (2009) (Docket No. 138380, order entered October 23, 2009), where it failed to follow Rowland v Washtenaw Co Rd Comm , 477 Mich 197 (2007); and Scott v State Farm Automobile Ins Co , 483 Mich 1032 (2009), where it failed to follow Thornton v Allstate Ins Co , 425 Mich 643 (1986), and Putkamer v Transamerica Ins Corp of America , 454 Mich 626 (1997)).I, Corbin R. Davis, Clerk of the Mi chigan Supreme Cour t, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court.

_______________________________________ __ Clerk April 23, 2010

y0420 8

recent precedent of this Court and, in so do ing, fails to give meaning to the medical malpractice reforms enacted by our Legislature.

Consistent with the requirements of th e NOI provisions of MCL 600.2912b and this Court’s binding precedent in Roberts , I would vacate the Court of Appeals majority opinion for the reasons stated in Judge S AAD ’s dissent and remand this case to the trial court for further proceedings consistent with Bush

.

C ORRIGAN , J., joins the statement of Y OUNG , J.