Michigan Supreme Court

Lansing, Michigan

Marilyn Kelly,

 Chief Justice

Michael F. Cavanagh

Elizabeth A. Weaver

Maura D. Corrigan

Robert P. Young, Jr.

Stephen J. Markman

Diane M. Hathaway, Justices

Order 

March 27, 2009 

135706 

AGNES HARDACRE and GERALD 

HARDACRE, 

Plaintiffs-Appellees, 

v SC: 135706 

 COA: 276934 

Saginaw CC: 04-054872-NH 

SAGINAW VASCULAR SERVICES, 

P.C., and GEORGE CARTY, M.D., 

 Defendants-Appellants. 

______________________________________/ 

 On order of the Court, the application for leave to appeal the October 25, 2007 

order of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the questions presented should be reviewed by this Court. 

 CORRIGAN, J. (dissenting). 

 I would reverse. The circuit court incorrectly concluded that the plaintiff’s notice 

of intent comported with the statutory presuit notice requirements for medical 

malpractice actions. In particular, the notice failed to state “[t]he 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). 

 Plaintiff’s claim originated from alleged improper medical and surgical care 

provided in connection with bypass surgeries on her left leg. In the presuit notice, she 

stated that, during the first surgery, “grafts were placed in a way so as not to adequately 

bypass the occluded segments of the vessel . . . .” About two weeks after the first 

surgery, defendants performed a second surgery on the same leg. Plaintiff alleged that 

the “graft was sewn too short.” She stated that, two days after surgery, “while walking in 

the hallway of the hospital, [she] experienced a tearing sensation in her left calf due to 

tearing of the graft.” She returned to surgery that day for repair. Plaintiff further alleged 

that defendants knew about her history of vascular disease and hematologic history—a 

history consistent with a clotting disorder. She asserted that, after both admissions, 

defendants failed to discharge her with necessary anticoagulants. 

 Within a week of her second discharge, plaintiff was readmitted for “failure of the 

left bypass procedures.” She consulted with an orthopedic surgeon and the decision was 
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

 _________________________________________ 

 Clerk

March 27, 2009 

d0324 

 

2

made to amputate her left leg above the knee. Plaintiff claims that defendants committed 

malpractice that resulted in the need for amputation. But the notice fails to explain how 

defendants’ acts were the proximate cause of the orthopedic surgeon’s decision to 

amputate. 

 The proximate cause section of the notice merely states that “[t]imely and proper 

compliance with the Standard of Care would have prevented the need for repeat surgery 

and need for amputation of the leg.” The standard of care section, however, merely 

repeats plaintiff’s malpractice allegations by listing several potential methods of injury 

prevention; it states that defendants should have recognized the significance of plaintiff’s 

clotting disorder, administered anticoagulant medication after surgery, placed bypass 

grafts to reestablish blood flow to the lower extremity, and used an appropriately sized 

graft. The notice fails to state how defendants’ surgical care or failure to provide an 

anticoagulant proximately caused an injury that resulted in the need for amputation. 

Thus, the notice was insufficient as a matter of law. It failed to allege any causative link 

between the claimed malpractice and the ultimate injury, which could have been the 

result of many things, presumably including plaintiff’s underlying poor vascular 

condition or an infectious process unrelated to the alleged acts of malpractice. 

 Accordingly, plaintiff’s purported statement of proximate cause is at least as 

deficient as the statement we found lacking in Boodt v Borgess Med Ctr, 481 Mich 558 

(2008). There, the statement of proximate cause similarly alleged: “If the standard of 

care had been followed, [the decedent] would not have died . . . .” Id. at 560. But, as 

here, the standard of care section simply listed several alleged acts of malpractice, such as 

the defendant’s negligent perforation of an artery during surgery and failure to perform a 

timely pericardiocentesis. Id. Thus, as here, the notice did not “describe the manner in 

which these actions or the lack thereof caused [the decedent’s] death.” Id. As we stated 

in Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 699-700 n 16 (2004), 

“it is not sufficient . . . to merely state that defendants’ alleged negligence caused an 

injury. Rather, § 2912b(4)(e) requires that a notice of intent 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.) 

 For these reasons, I dissent from the order denying leave. At a minimum, I would 

remand this case for the Court of Appeals to consider defendants’ challenges to the 

notice. 

 MARKMAN, J., joins the statement of CORRIGAN, J.