Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion Marilyn Kelly 

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 BENCH 
PER 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 defendants’ motion for summary 

disposition, holding that plaintiff’s notice of intent was not sufficient, and the 

Court of Appeals reversed with respect to the grant of summary disposition to 

Lauer. 272 Mich App 621; 728 NW2d 471 (2006). 

Regarding causation, the notice of intent states: “If the standard of care had 

been followed, [David] Waltz would not have 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 claimed in the 

notice,” as required by MCL 600.2912b(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 the manner in which these actions 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 injury. Rather, § 2912b(4)(e) requires that a notice of intent 

2
 
 

more precisely contain a statement as to the manner in which it is alleged that the 

breach was a proximate cause of the injury.” (Emphasis in original.) 

Although the instant notice of intent may conceivably have apprised Lauer 

of the nature and gravamen of plaintiff’s allegations, this is not the statutory 

standard; § 2912b(4)(e) requires 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 claimed in the 

notice.” MCL 600.2912b(4)(e). The notice at issue here 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 “notice 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 original). As long as these 

1

 The dissent contends that the notice does contain such a statement 

because, according to the dissent, it states that “Lauer negligently caused Waltz’s 

death by the continued administration of an anticoagulant after internal bleeding 

was detected.” Post at 4. However, contrary to the dissent’s contention, this 

statement cannot be found anywhere in the notice of intent. Instead, the notice 

only states that defendants “[f]ailed to timely recognize the perforation and stop 

the anticoagulation and order an echocardiogram[.]” Nowhere in the notice does 

plaintiff state the “manner in which [this failure] was the proximate cause of the 

injury claimed in the notice.” MCL 600.2912b(4)(e). 

3
 
 

claims are made in good faith, the notice is not rendered insufficient simply 

because it is later discovered that the claims are imperfect or inaccurate in some 

respect. Id. at 692 n 7. 

This Court has already held that a defective notice of intent does not toll the 

period of limitations. Roberts v Mecosta 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 limitations, under MCL 600.5856(a) and MCL 

600.2912d(1),3

 the filing of the complaint 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 defendant waited until it was “too late to 

correct an alleged deficiency” to raise it. Post at 2. However, as we explained in 

Roberts I, 466 Mich at 59, “MCL 600.2912b places the burden of complying with 

the notice of intent requirements on the 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 required 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 provision that does not itself 

contain such a requirement. The Rowland Court’s approach is most consistent 

with our goal to uphold 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 here differently than how Lisee treated the statutory language at 

issue in that case. 

3

 MCL 600.5856(a) states that the filing of a complaint tolls the period of 

limitations. MCL 600.2912d(1) requires a medical-malpractice plaintiff to file an 

affidavit of merit with the complaint. 

4
 
 

the filing of the complaint and affidavit of merit tolls the period of limitations, at 

least until the sufficiency of the affidavit 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 health 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 professional or health facility 

under this section shall contain a statement of at least all of the following . . . .” 

Therefore, a plaintiff cannot commence an action before he or she files a notice of 

intent that contains all the information required under § 2912b(4). See Roberts I, 

466 Mich at 64 (holding that the period of limitations is not tolled unless notice is 

given in compliance with all the provisions of § 2912b[4]). Because plaintiff’s 

notice of intent here did not contain all the information required under § 2912b(4), 

she could not have commenced an action.4

 Therefore, her complaint and affidavit 

of merit could not have tolled 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 plaintiff 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, pleading or proceeding in such action 

or proceeding, either in form or substance, for the furtherance of 

justice, on such terms as are just, at any time before judgment 

(continued . . .) 

5
 
 

This 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 complaint and an affidavit of merit, which 

was later determined to be defective, tolled the period of limitations until the 

affidavit’s sufficiency was successfully challenged. In this case, however, 

plaintiff failed to file a notice of intent that satisfied the requirements of § 

2912b(4)(e), and, thus, plaintiff 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 error or defect in the proceedings 

which do not affect the substantial rights of the parties. 

As discussed above, because the notice of intent was deficient, no action is 

pending, and § 2301 only applies to pending actions. In addition, § 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 “proceeding.” Moreover, any 

discussion in Fildew regarding whether the statute permitted amendment was 

dictum in light of the fact that the Court first concluded that the defendants had 

waived any objection to the plaintiff’s misdescription in the summons and the 

affidavits for writs of garnishment of the state in which 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 [whether] 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.” 

6
 
that plaintiff was not yet authorized to file could not possibly have tolled the 

period of limitations. 

Because we conclude that plaintiff’s notice of intent with regard to Lauer 

did not satisfy the requirements of § 2912b(4)(e), we reverse 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 application for leave to appeal as 

a cross-appellant because we are not persuaded 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 the manner in which the perforation of 

decedent’s artery was the proximate cause of his death and, thus, that her notice of 

intent meets the requirements of MCL 600.2912b. I also believe that when a 
 

notice of intent required by MCL 600.2912b is deficient, MCL 600.2301 should 

control and the deficiency should be disregarded if there is no effect on the 

substantial rights of a party. Most importantly, I believe that the Legislature did 

not intend a statute mandating notice to one party to be used 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, David Waltz was admitted to Borgess Medical Center 

for chest pains. The next day, Dr. Michael Lauer performed an angioplasty on 

Waltz. During the procedure, Lauer perforated Waltz’s coronary artery. Waltz 

experienced severe hypotension and hypoxia. Dr. Alponse DeLucia, III, a 

cardiothoracic surgeon, performed emergency coronary-bypass surgery, but, by 

this time, Waltz had suffered an anoxic brain injury. He died six 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), plaintiff commenced this action by filing a 

complaint naming the three defendants and an affidavit of merit on June 19, 2003. 

Plaintiff filed the complaint and affidavit four months before the expiration of the 

1

 The three named defendants are Lauer, Borgess Medical Center, and 

Heart Center for Excellence, P.C. 

2
 
 

applicable period of limitations. MCL 600.5805(5), now MCL 600.5805(6). In 

February 2005, 20 months after plaintiff filed suit and more than two years after 

receiving plaintiff’s NOI, defendants filed a motion for summary disposition, 

claiming that a defect in plaintiff’s NOI entitled them to dismissal. 

The majority concludes that plaintiff did not meet the requirements of MCL 

600.2912b(4)(e), which requires a statement of 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.” I disagree. 

Plaintiff’s NOI states that “Mr. Waltz presented to defendants for an 

elective [percutaneous transluminal coronary angioplasty]. During the procedure, 

the defendant caused a perforation which led to Mr. Waltz’ death.” Plaintiff’s 

NOI further alleges that Waltz might have survived but for negligence in 

responding to the perforation. The NOI alleges actions 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 administration of an anticoagulant, (3) 

order an echocardiogram, (4) insert a balloon pump, (5) timely perform a 

pericardiocentesis,2

 (6) attempt another pericardiocentesis after the initial attempt 

2

 According to MedlinePlus, Medical Encylopedia, a service of the National 

Institutes of Health and the United States National Library of Medicine: 

Pericardiocentesis involves the use of a needle to withdraw 

fluid from the pericardial sac (membrane that surrounds the heart). 

(continued . . .) 

3
 
 

proved unsuccessful, and (7) keep the LAD3

 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. Plaintiff’s NOI alleges that Lauer’s breach 

caused a perforation of Waltz’s artery and deprived Waltz of the enumerated 

means that would have helped him survive the emergency. 

This Court has stated that, given the presuit 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 the NOI are inaccurate. 

Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 691; 684 NW2d 

711 (2004). Plaintiff alleges, for example, that Lauer negligently caused Waltz’s 

death by the continued administration 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 recurrent 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 within the pericardial sac). 

[<http://www.nlm.nih.gov/medlineplus/ency/article/003872.htm#De 

finition> (visited June 2, 2008).] 

3

 “LAD” refers to the left anterior descending coronary artery, in which the 

guide wire was placed for Waltz’s angioplasty. 

4
 
 

was 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 cause 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 manner of causation. I would 

find plaintiff’s statement sufficient under MCL 600.2912b(4)(e). 

Additionally, if plaintiff’s NOI were deficient, I would allow her to amend 

it or direct the trial court to disregard the deficiency in this case. The most 

obvious, direct, and irrefutable legislative intent of this statute is notice. Indeed, 

the statute mandates that a potential medical-malpractice defendant receive notice 

of impending litigation. There is no indication of an intent 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 decision 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 the defect is past. 

I believe that MCL 600.2301 should apply 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 defective notice as “a trap 

for the unwary.” 

5
 
 

The court in which any action or proceeding is pending, has 

power to amend any process, pleading or proceeding in such action 

or proceeding, either in form or substance, for the furtherance of 

justice, on such terms as are just, at any time before judgment 

rendered therein. The court at every stage of the action or 

proceeding shall disregard any error or defect in the proceedings 

which do not affect the substantial 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 600.2301, 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 plaintiff’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 more 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 mandating notice to one party 

operates as a terminal trap without notice to the party required to give notice. In 

6

 In my view, service of an NOI is part and parcel of medical-malpractice 

“proceedings” in Michigan; service of an NOI is encompassed by MCL 600.2301. 

See Fildew v Stockard, 256 Mich 494; 239 NW 868 (1932) (applying 1929 CL 

14144, a predecessor of MCL 600.2301, to an affidavit for a writ of garnishment 

that was required to be filed before commencement of the action), and Tudryck v 

Mutch, 320 Mich 99, 106-107; 30 NW2d 518 (1948) (applying 1929 CL 14144 to 

a settlement agreement and stating that “[t]o argue at this late date that the 

Tudrycks did not authorize the settlement or that their attorney exceeded his 

authority is, to say the least, not appealing to the conscience of the Court”). 

6
 
 

this case, Lauer has not asserted that plaintiff’s claim lacks merit, that he was not 

negligent, or that plaintiff’s notice failed to put him on notice 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 NW2d 112 (1944) (citation omitted). If plaintiff’s NOI 

were deficient, MCL 600.2301 should 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 substantial rights would be affected by 

disregarding a defect in plaintiff’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 deposition testimony taken on October 24, 2003, Lauer 

stated that he knew what the case was about. In his answer to plaintiff’s 

interrogatories, submitted on December 3, 2003, Lauer admitted that he caused the 

perforation of Waltz’s artery and that the perforation caused Waltz’s death. When 

asked in those interrogatories whether he admitted negligence, 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 required content of a complaint; and Locke v 

Pachtman, 446 Mich 216, 222; 521 NW2d 786 (1994), stating the requirements 

for a claim asserting medical malpractice. 

7
 
 

“Perforation is a rare, but accepted, complication of [percutaneous coronary 

intervention, i.e., angioplasty], even when 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 held that dismissal on the basis of a 

deficient notice of intent was inappropriate when there was no prejudice to the 

recipient. In Lisee v Secretary of State, 388 Mich 32; 199 NW2d 188 (1972), the 

plaintiff gave the Secretary of State notice 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 years 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 fund 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 deficient notice of intent did 

not bar recovery because there was no prejudice to the Secretary of State. Id. at 

45. We reasoned as follows: 

8

 Because I believe that plaintiff’s notice of intent was sufficient, or that 

any insufficiency should be disregarded under MCL 600.2301, 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 other changes. 1968 PA 223. 

8
 
The purpose of the notice provision of [MCL 257.1118] is 

met in this case. The Secretary of State did receive actual notice of 

the accident through the notice of intent to claim filed by the estate 

of Ella Burgy . . . . Hence, the Secretary of State was not prejudiced 

in any way. Because of the remedial nature of this Act and because 

of the lack of prejudice to the defendant, 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 600.2912b differently from MCL 257.1118 when 

the critical language is nearly identical. 

The majority states that MCL 600.2912b 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 MCL 600.2912b is to require 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 statement of the manner in which 

Lauer’s breach caused the injury at issue. If plaintiff’s NOI were deficient, I 

would remand this case to the trial court 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 

9