Michigan Supreme Court Lansing, Michigan

Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

FILED JULY 2, 2008 MELISSA BOODT, as Personal Representative of the Estate of David Waltz, Deceased, Plaintiff-Appellee/ Cross-Appellant,

v No. 132688 BORGESS MEDICAL CENTER, Defendant-Appellee/ Cross-Appellee and MICHAEL ANDREW LAUER, M.D., and HEART CENTER FOR EXCELLENCE, P.C., Defendants-Appellants/ Cross-Appellees, and MICHAEL ANDREW LAUER, M.D., P.C., Defendant.

________________ _______________ BEFORE THE ENTIRE BENCHPER CURIAM. At issue in this wrongful-death, medical-malpractice action is whether plaintiff’s notice of intent was sufficient with respect to the defendant physician, Michael A. Lauer, M.D. The trial court granted defen dants’ motion for summary disposition, holding that plaintiff’s noti ce of intent was not sufficient, and the Court of Appeals reversed with respect to the grant of su mmary disposition to Lauer. 272 Mich App 62 1; 728 NW2d 471 (2006). Regarding causation, the notice of intent states: “If the st andard of care had been followed, [David] Waltz would not ha ve died on October 11, 2001.” This statement does not describe the “manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury cl aimed in the notice,” as required by MCL 60 0.2912b(4)(e). Even when the notice is read in its entirety, it does not describe the manner in which the breach was the proximate cause of the injury. When so read, the notice merely indicates that Lauer caused a perforation and that he then failed to do several things that he presumably should have done, such as perform a pericardiocentesis in a timely manner. However, the notice does not describe th e manner in which these acti ons or the lack thereof caused Waltz’s death. As this Court explained in Roberts v Mecosta Co Gen Hosp (After Remand) , 470 Mich 679, 699-700 n 16; 684 NW2d 711 (2004) ( Roberts II ), “it is not sufficient under this provision to merely state that defendants’ alleged negligence caused an in jury. Rather, § 2912b(4)(e) requi res that a notice of intent

2more precisely contain a statement as to the manner in which it is alleged that the breach was a proximate cause of the in jury.” (Emphasis in original.) Although the instant notice of intent may concei vably have a pprised Lauer of the nature and gravamen of plaintiff’s allegations, this is not the statutory standard; § 2912b(4)(e) requi res something more. In particular, it requires a “statement” describing the “manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury cl aimed in the notice.” MCL 600.2912b(4)(e). The notice at issue h ere does not contain such a

statement. 1 On the other hand, as we also explained in Roberts II, 470 Mich at 694, § 2912b(4) does not require a plaintiff to provide statements in the notice that “ultimately [must] be proven, after discovery and trial, to be correct and accurate in every respect.” We recognize that a “not ice of intent is provided at the earliest stage of a medical malpractice proceeding,” id. at 691, and, thus, a plaintiff need only “specify what it is that she is claiming under each of the enumerated categories in § 2912b(4),” id. at 701 (emphasis in origin al). As long as these

1 The dissent contends that the no tice does contain such a statement because, according to the dissent, it states that “L auer negligently caused Waltz’s death by the continued admi nistration of an anticoagulant after internal bleeding was detected.” Post at 4. However, contrary to the dissent’s contention, this statement cannot be found a nywhere in the notice of in tent. Instead, the notice only states that defendants “[f]ailed to timely recognize the perforation and stop the anticoagulation and ord er an echocardiogram [.]” Nowhere in the notice does plaintiff state the “manner in which [thi s failure] was the proximate cause of the injury claimed in the noti ce.” MCL 600. 2912b(4)(e).

3claims are made in good faith, the no tice is not rendered insufficient simply because it is later discovered that the claims are imperf ect or inaccurate in some respect. Id. at 692 n 7. This Court has already held that a defec tive notice of intent does not toll the period of limitations. Roberts v Mecost a Co Gen Hosp, 466 Mich 57, 64; 642 NW2d 663 (2002) ( Roberts I ). 2 Plaintiff now argues that even if the notice here did not toll the period of limitati ons, under MCL 6 00.5856(a) and MCL 600.2912d(1), 3 the filing of the complain t and the affidavit of merit did toll the period. See Kirkaldy v Rim , 478 Mich 581; 734 NW2d 201 (2007) (holding that

2 The dissent complains that defenda nt waited until it was “too late to correct an alleged defici ency” to raise it. Post at 2. However, as we explained in Roberts I, 466 Mich at 59, “MCL 600.2912b pl aces the burden of complying with the notice of intent requirements on th e plaintiff and does not implicate a reciprocal duty on the part of the defendant to challenge any deficiencies in the notice before the complaint is filed.” Further, the case the dissent relies on for its position that “dismissal on the basis of a deficient notice of intent [is] inappropriate when there was no prejudice to the recipient,” post at 8, citing Lisee v Secretary of State, 388 Mich 32; 199 NW2d 188 (1972), did not involve the notice of intent specifically re quired by § 2912b. Further, in Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 213; 731 NW2d 41 (2007), this Court, in contrast to the holding in Lisee, supra at 45, made clear that a prejudice requirement cannot be read into a statutory notice provisio n that does not itself contain such a requirement. The Rowland Court’s approach is most consistent with our goal to u phold the Legislature’s intent by honoring the Legislature’s choice of language. Our adherence to Rowland explains why we treat the statutory language at issue h ere differently than how Lisee treated the statutory language at issue in that case.

3 MCL 600.5856(a) states that the fili ng of a complaint to lls the period of limitations. MCL 600.2912d(1) requires a me dical-malpractice plaintiff to file an affidavit of merit w ith the complaint.

4the filing of the complaint an d affidavit of merit tolls th e period of limitations, at least until the sufficiency of the affida vit is successfully challenged). We respectfully disagree. MCL 600.2912b(1) states that “a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the hea lth professional or health facility written notice under this section not less than 182 days before the action is commenced.” MCL 600.2912b(4) states that the “notice given to a health pr ofessional or health facility under this section shall contai n a statement of at least all of the following . . . .” Therefore, a plaintiff cannot co mmence an action before he or she files a notice of intent that contains all the inform ation required under § 2912b(4). See Roberts I, 466 Mich at 64 (holding that the period of lim itations is not tolled unless notice is given in compliance with all the provisio ns of § 2912b[4]). Because plaintiff’s notice of intent here did not contain all the information requi red under § 2912b(4), she could not have commenced an action. 4 Therefore, her comp laint and affidavit of merit could not have tolle d the period of limitations.

4 The dissent argues that, pursuant to MCL 600.2301, we should remand this case to the trial court to allow plai ntiff to amend her notice of intent. MCL 600.2301 provides: The court in which any action or proceeding is pending, has power to amend any process, plead ing or proceeding in such action or proceeding, either in form or substance, for th e furtherance of justice, on such terms as are ju st, at any time before judgment (continued . . .)

5This case is distinguishable from Kirkaldy , because there the plaintiff presumably filed a notice of intent that satisfied § 2912b(4)(e). We concluded that the plaintiff’s subsequent filing of a co mplaint and an affidav it of merit, which was later determined to be defective, tolled the period of limitations until the affidavit’s sufficiency was su ccessfully challenged. In this case, however, plaintiff failed to file a notice of inte nt that satisfied the requirements of § 2912b(4)(e), and, thus, plain tiff was not yet authorized to file a complaint and an affidavit of merit. Therefore, the filing of the complaint and the affidavit of merit

(continued . . .) rendered therein. The court at every stage of the action or proceeding shall disregard any erro r or defect in the proceedings which do not affect the substan tial rights of the parties. As discussed above, because the notice of intent was deficient, no action is pending, and § 2301 only applies to pendi ng actions. In ad dition, § 2301 only applies to a “process, pleading, or proceeding.” Although the dissent acknowledges that a notice of intent is not a pleading, it argues that a notice of intent is a “proceeding.” Post at 6 and n 6. However, contrary to the dissent’s contention, our decision in Fildew v Stockard, 256 Mich 494; 239 NW 868 (1932), did not even discuss the meaning of the term “pro ceeding.” Moreover, any discussion in Fildew regarding whether the statut e permitted amendment was dictum in light of the fact that the Cour t first concluded that the defendants had waived any objection to th e plaintiff’s misdescriptio n in the summons and the affidavits for writs of garn ishment of the state in wh ich the defendant company was incorporated. Id. at 496. Likewise, our decision in Tudryck v Mutch, 320 Mich 99, 107; 30 NW2d 518 (1948), did not discuss the meaning of the term “proceeding.” Nor did we apply the predecessor of § 2301 to amend the settlement agreement in Tudryck , as demonstrated by the fact that we found it “unnecessary to [even] determine [w hether] the settlement agreement was defective . . . .” Id. Neither of these cases stands in any way for the proposition that a notice of intent constitutes a “proceeding.”

6that plaintiff was not yet authorized to file could not possi bly have tolled the period of limitations. Because we conclude that plaintiff’s notice of intent w ith regard to Lauer did not satisfy the requiremen ts of § 2912b(4)(e), we rev erse in part the judgment of the Court of Appeals and reinstate the trial court’s order granting summary disposition to Lauer. Finally , we deny plaintiff’s applica tion for leave to appeal as a cross-appellant because we are not persua ded that we should review the question presented.

Clifford W. Taylor Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman

7________________ _______________ v S T A T E O F M I C H I G A N
SUPREME COURT MELISSA BOODT, as Personal Representative of the Estate of David Waltz, Deceased, Plaintiff-Appellee/ Cross-Appellant,
No. 132688 BORGESS MEDICAL CENTER, Defendant-Appellee/ Cross-Appellee and MICHAEL ANDREW LAUER, M.D., and HEART CENTER FOR EXCELLENCE, P.C., Defendants-Appellants/ Cross-Appellees, and MICHAEL ANDREW LAUER, M.D., P.C., Defendant.

CAVANAGH, J. ( dissenting ). I believe that plaintiff has stated th e manner in which th e perforation of decedent’s artery was the proxima te cause of his death and, thus, that her notice of intent meets the requirements of MCL 600.2912b. I al so believe that when anotice of intent required by MCL 600.2912b is defici ent, MCL 600. 2301 should control and the deficiency should be di sregarded if there is no effect on the substantial rights of a party. Most impor tantly, I believe that the Legislature did not intend a statute mandating notice to one party to be us ed by that party to defeat another party’s claim after it is too late to correct an alleged deficiency. Therefore, I respectfully dissent. On October 5, 2001, Da vid Waltz was admitted to Borgess Medical Center for chest pains. The next day, Dr. Mi chael Lauer performed an angioplasty on Waltz. During the procedure, Lauer perfo rated Waltz’s coronary artery. Waltz experienced severe hypotens ion and hypoxia. Dr. Al ponse DeLucia, III, a cardiothoracic surgeon, performed em ergency coronary-b ypass surgery, but, by this time, Waltz had suffered an anoxic brain injury. He died si x days later, on October 11, 2001. According to Lauer’s own testimony, the perforation was the cause of Waltz’s death. Plaintiff is the personal representative of Waltz’s estate. Following the requirements of MCL 600.2912b(1) and (2), plaintiff mailed a notice of intent (NOI) to three defendants on January 13, 2003. 1 After waiting 182 days, as required by MCL 600.2912b(1), plaintif f commenced this action by filing a complaint naming the three defe ndants and an affidavit of merit on June 19, 2003. Plaintiff filed the complain t and affidavit four months before the expiration of the

1 The three named defe ndants are Lauer, Borge ss Medical Center, and Heart Center for Excellence, P.C.

2applicable period of limita tions. MCL 600.5805(5), no w MCL 600.5805(6). In February 2005, 20 months after plaintiff filed suit an d more than two years after receiving plaintiff’s NOI, d efendants filed a motion fo r summary disposition, claiming that a defect in plaintiff’s NOI entitled them to dismissal. The majority concludes that plaintiff did not meet the re quirements of MCL 600.2912b(4)(e), which requires a statement of the “mann er in which it is alleged the breach of the stan dard of practice or care was the proximate cause of the injury claimed in the notice.” I disagree. Plaintiff’s NOI states that “Mr. Wa ltz presented to defendants for an elective [percutaneous translum inal coronary angioplasty]. During the procedure, the defendant caused a perfo ration which led to Mr. Waltz’ death.” Plaintiff’s NOI further alleges that Waltz might have survived but fo r negligence in responding to the perforati on. The NOI alleges acti ons that defendants should have taken but did not. It states that defendants did not (1) recognize the perforation in a timely manner, (2) stop the administratio n of an anticoagulant, (3) order an echocardiogram, (4) insert a balloon pum p, (5) timely perform a pericardiocentesis, 2 (6) attempt another pericardio centesis after the initial attempt

2 According to Med linePlus, Medical Encylopedia, a service of the National Institutes of Health and the United St ates National Library of Medicine: Pericardiocentesis involves the us e of a needle to withdraw fluid from the pericardial sac (membrane that surrou nds the heart). (continued . . .)

3proved unsuccessful, an d (7) keep the LAD 3 wire in place to maintain access to the blood vessel. I believe that this is a statement of the manner in which Lauer’s breach was the proximate cause of Waltz’s death. Pl aintiff’s NOI alleges that Lauer’s breach caused a perforation of Waltz’s artery a nd deprived Waltz of the enumerated means that would have helped him survive the emergency. This Court has stated that, given the p resuit timing of the notice and lack of information available, “the claimant is not required to craft her notice with omniscience”; thus, it is not fatal that the allegations in th e NOI are inaccurate. Roberts v Mecosta Co Ge n Hosp (After Remand) , 470 Mich 679, 691; 684 NW2d 711 (2004). Plaintiff alleges, for exampl e, that Lauer neglig ently caused Waltz’s death by the continued admi nistration of an anticoagulant after internal bleeding

(continued . . .) * * * This test may be performed to remove fluid that is compressing the heart for examination. It is usually done to evaluate the cause of a chronic or recurren t pericardial effusion (fluid in the pericardial sac). It may also be done as a treatment measure to relieve cardiac tamponade (compression of the heart from an accumulation of fluid with in the pericardial sac). [<http://www.nlm.nih.gov/medlineplu s/ency/article/003872.htm#De finition> (visited June 2, 2008).]

3 “LAD” refers to the left anterior des cending coronary ar tery, in which the guide wire was placed for Waltz’s angioplasty.

4was detected. 4 This may or may not be accurate, but it is an allegation of the manner in which Lauer’s negligence was the proximate cau se of the injury in this

case. I am uncertain what the majority finds lacking here, and the majority does not specify it. In fact, the majority appears to say that plaintiff did not state the manner of causation because she did not state the mann er of causation. I would find plaintiff’s statement suffi cient under MCL 600.2912b(4)(e). Additionally, if plaintiff’s NOI were d eficient, I would allow her to amend it or direct the trial court to disregard the defi ciency in this case. The most obvious, direct, and irrefu table legislative intent of this statute is notice. Indeed, the statute mandates that a potential me dical-malpractice defendant receive notice of impending litigation. There is no indication of an inte nt for the NOI to be used as a trap for the unwary, ambushing a plaintiff who is without notice of the technical defect in her NOI. 5 The majority’s decisi on annihilates notice for a plaintiff with the slightest deficiency under MCL.600.2912b. What is worse, a plaintiff may receive this terminal blow , not only without notice of the NOI’s deficiency, but after any opportunity to correct th e defect is past. I believe that MCL 600.2301 should appl y when an NOI is deficient. That

statute states:

4 This allegation is readily ascertainable in plaintiff’s NOI. 5 In South Norfolk v Dail , 187 Va 495, 503; 47 SE2d 405 (1948), the court aptly referred to dismissal of a claim on the basis of a d efective notice as “a trap for the unwary.”

5The court in which any action or proceeding is pending, has power to amend any process, plead ing or proceeding in such action or proceeding, either in form or substance, for th e furtherance of justice, on such terms as are ju st, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any erro r or defect in the proceedings which do not affect the substan tial rights of the parties. While MCR 2.118 controls the amendment of pleadings, an NOI is not a pleading, and its amendment is controlled by MCL 6 00.2301, which applies to any process or proceeding before a court. 6 The statute allows amendment “at any time” before judgment is rendered. At the time defendants asserted that plai ntiff’s NOI was defective, judgment had not been entered (in fact, the trial had not even begun yet). Therefore, allowing amendment is proper. The amendment may be “either in form or substance.” So amending the substance of the NOI to mo re clearly state, for example, the manner in which the breach caused the injury is proper. The statute operates “for the furtherance of justice.” Justice is furthered by applying MCL 600.2301 in a case in which a statute ma ndating notice to one party operates as a terminal trap without notice to th e party required to give notice. In

6 In my view, service of an NOI is part and parcel of medical-malpractice “proceedings” in Mich igan; service of an NOI is encompasse d by MCL 600.2301. See Fildew v Stockard, 256 Mich 494; 239 NW 868 (1 932) (applying 1929 CL 14144, a predecessor of MCL 600.2301, to an affidavit for a writ of garnishment that was required to be filed befo re commencement of the action), and Tudryck v Mutch , 320 Mich 99, 106-107; 30 NW2d 518 (1948) (appl ying 1929 CL 14144 to a settlement agreement and stating that “[t ]o argue at this late date that the Tudrycks did not au thorize the settlement or that their attorney exceeded his authority is, to say the least, not app ealing to the conscience of the Court”).

6this case, Lauer has not asserted that plai ntiff’s claim lacks meri t, that he was not negligent, or that plaintiff’s notice failed to put him on no tice of plaintiff’s claim. Lauer merely alleges that plaintiff’s NOI was technically insufficient under MCL 600.2912b. The aim of MCL 600.2301 is “‘to abolish technical errors in proceedings and to have cases disposed of as nearly as possible in accordance with the substantial rights of the parties.’” Gratiot Lumber & Coal Co v Lubinski , 309 Mich 662, 668-669; 16 NW 2d 112 (1944) (citation om itted). If plaintiff’s NOI were deficient, MCL 600.2301 shoul d apply to allow amendment. The second sentence of MCL 600.2301 requires a court to “disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.” I do not believe that Lauer’s substantia l rights would be affected by disregarding a defect in plai ntiff’s NOI in this case. The only possible effect on Lauer is lack of notice. But lack of notice is not evident here because he had actual notice. 7 Indeed, in depositio n testimony taken on Oc tober 24, 2003, Lauer stated that he knew what the case was about. In his an swer to plaintiff’s interrogatories, submitted on December 3, 2003, Lauer ad mitted that he caused the perforation of Waltz’s artery and that the p erforation caused Waltz’s death. When asked in those interrogatories whether he admitted negligen ce, Lauer responded,

7 Additionally, the specific notice requirements of MCL 600.2912b(4) are precisely duplicated in the complaint and affidavit of merit once litigation is commenced. See MCL 600.2912d(1), listing the required content of an affidavit of merit; MCR 2.111(B), listing the re quired content of a complaint; and Locke v Pachtman , 446 Mich 216, 222; 521 NW2d 78 6 (1994), stating the requirements for a claim asserting medical malpractice.

7“Perforation is a rare, but accepted, co mplication of [percutaneous coronary intervention, i.e., angioplasty], even wh en everything is done properly.” Lauer knew what plaintiff’s claim was about. He now challenges that claim only to invalidate it after plaintiff can no longer fix the alleged error. 8 In similar circumstances, this Court he ld that dismissal on the basis of a deficient notice of intent was inappropria te when there was no prejudice to the recipient. In Lisee v Secretary of State , 388 Mich 32; 199 NW 2d 188 (1972), the plaintiff gave the Secretary of State noti ce of a potential claim, as required by MCL 257.1118, which stated: 9 In all actions in which recovery is to be sought against the [motor vehicle accident claims ] fund, said action must be commenced within 3 y ears from the time the cause of action accrues. Provided that recovery from the fund shall not be allowed in any event unless notice of intent to claim against the f und is served upon the secretary, on a form prescribed by him, within 1 year of the date that the cause of action shall accrue. [Emphasis added.] The Secretary of State refused to pay the plaintiff’s claim and defended on the grounds that the plaintiff had failed to file a notice of intent within the statutory period. Lisee , supra at 37. This Court held that the deficien t notice of intent did not bar recovery because there was no pr ejudice to the Secretary of State. Id. at 45. We reasoned as follows:

8 Because I believe that plaintiff’s noti ce of intent was sufficient, or that any insufficiency should be disregarded under MCL 6 00.2301, I do not reach the issue whether plaintiff’s complaint and affidavit of merit tolled the period of limitations. 9 After the claim accrued in Lisee , the statute was amended to make the notice period six months, among ot her changes. 1968 PA 223.

8The purpose of the notice provi sion of [MCL 257.1118] is met in this case. The Secretary of State did receive actual notice of the accident through the notice of in tent to claim filed by the estate of Ella Burgy . . . . He nce, the Secretary of State was not prejudiced in any way . Because of the remedial na ture of this Act and because of the lack of prejudice to the d efendant, we hold that plaintiffs’ failure to file notice within the time required under [MCL 257.1118] is not a bar to recovery under the circumstances of this case. [ Id. at 44-45 (emphasis added).] There is no reason to treat MCL 600.2 912b differently from MC L 257.1118 when the critical language is nearly identical. The majority states that MCL 600.291 2b places no duty on a defendant to challenge deficiencies in a plaintiff’s NOI before the plaintiff’s case is filed. The question here is not one of a defendant’s duty; rather, the question is one of legislative intent. The clear intent of MC L 600.2912b is to re quire pretrial notice to potential medical-malpractice defendants. I find no indication in the statute that it was intended to trap unwary plaintiffs and defeat otherwise meritorious claims months or years after an action is commenced. I believe that plaintiff’s NOI contains a statemen t of the manner in which Lauer’s breach caused the inju ry at issue. If plainti ff’s NOI were deficient, I would remand this case to the trial cour t for consideration under MCL 600.2301. On remand, Lauer would be free to argue that his substantial rights have been affected.

Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly

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