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

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.

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On order of the Court, the application for leave to appeal the October 25, 2007 order of the Court of Appeals is consider ed, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.

C ORRIGAN , J. ( dissenting ).

I would reverse. The circuit court incorre ctly 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 prac tice 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 alle ged improper medical and surgical care provided in connection with bypa ss surgeries on her left leg. In the presuit notice, she stated that, during the first surg ery, “grafts were placed in a way so as not to adequately bypass the occluded segments of the vessel . . . .” About two w eeks after the first surgery, defendants performed a second surgery on the same leg. Plaintiff alleged that the “graft was sewn too short.” She stated th at, two days after surgery, “while walking in the hallway of the hospital, [s he] experienced a tearing sensation in her left calf due to tearing of the graft.” She retu rned to surgery that day for re pair. Plaintiff further alleged

that defendants knew about her history of vascular diseas e and hematologic history—a history consistent with a clotting disorder . She asserted that, after both admissions, defendants failed to discharge he r 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 wasI, 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 March 27, 2009

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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 re peat surgery and need for amputation of the leg.” The st andard of care section, however, merely repeats plaintiff’s malpractice allegations by listing several potential methods of injury prevention; it states that defendants should ha ve recognized the significance of plaintiff’s clotting disorder, administered anticoagulant medication after surgery, placed bypass grafts to reestablish blood flow to the lowe r extremity, and used an appropriately sized graft. The notice fails to state how defendant s’ surgical care or fa ilure to provide an anticoagulant proximately caused an injury that re sulted 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 u ltimate injury, which c ould have been the result of many things, presumably includi ng plaintiff’s unde rlying 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 statemen t we found lacking in Boodt v Borgess Med Ctr , 481 Mich 558 (2008). There, the statement of proximate cause similarly alle ged: “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 perfora tion of an artery during surg ery and failure to perform a timely pericardiocentesis. Id. Thus, as here, the notice di d not “describe the manner in

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

in Roberts v Mecosta Co Gen Hosp (After Remand) , 470 Mich 679, 69 9-700 n 16 (2004), “it is not sufficient . . . to merely state th at defendants’ alleged negligence caused an injury. Rather, § 2912b( 4)(e) requires that a notice of in tent more precisely contain a

statement as to the manner in which it is alleged that the breach was a proximate cause of the injury.” (Em phasis in original.)

For these reasons, I dissent from the orde r denying leave. At a minimum, I would remand this case for the Court of Appeals to consider defendants’ challenges to the

notice.

M ARKMAN , J., joins the statement of C ORRIGAN , J.