FILED JULY 31, 2009 

BRIAN POTTER, 

 Plaintiff-Appellant, 

v No. 136336 

 

RICHARD C. McLEARY, M.D., GARY 

AUGUSTYN, M.D., ST. JOSEPH MERCY 

HOSPITAL ANN ARBOR, d/b/a TRINITY 

HEALTH-MICHIGAN, ROBERT 

DOMEIER, D.O., and EMERGENCY 

PHYSICIANS MEDICAL GROUP, P.C., 

 Defendants, 

and 

KRISTYN H. MURRY, M.D., and HURON 

VALLEY RADIOLOGY, P.C., 

 Defendants-Appellees. 

BEFORE THE ENTIRE BENCH 

HATHAWAY, J. 

At issue before this Court is the proper interpretation of the statutory 

provision requiring a notice of intent to sue (NOI) in medical malpractice actions.1

 

 1

 MCL 600.2912b. 

Michigan Supreme Court

Lansing, Michigan

Opinion Chief Justice: 

Marilyn Kelly 

Justices: 

Michael F. Cavanagh 

Elizabeth A. Weaver 

Maura D. Corrigan 

Robert P. Young, Jr. 

Stephen J. Markman 

Diane M. Hathaway
2

This case raises the issue whether a professional corporation (PC) must be 

provided an NOI before the commencement of the medical malpractice action. It 

also raises the issue of what statements must be set forth in an NOI to satisfy the 

requirements of MCL 691.2912b(4) when a claim being made against the PC is 

based solely on a PC’s vicarious liability for its physician. 

We hold, on the basis of the plain language of the relevant statutes, that 

when claims alleged against a PC are predicated on its vicarious liability for a 

licensed health care provider rendering professional services, an NOI must be 

provided. The NOI provision, MCL 600.2912b, clearly states that a plaintiff must 

provide all health professionals and health facilities an NOI before commencing a 

medical malpractice action. MCL 600.5838a delineates those health care 

providers and facilities against which claims of medical malpractice may be 

asserted.2

 Claims asserted against providers and facilities not delineated in 

§ 5838a sound in ordinary negligence.3

 Because § 5838a specifically refers to PCs 

in its definitional section, a claim against a PC sounds in malpractice, but only 

when the claim asserted against the PC is for rendering professional services as 

defined in MCL 450.225. Under these circumstances, a PC must be provided an 

 2 Kuznar v Raksha Corp, 481 Mich 169, 177; 750 NW2d 121 (2008). 

3

 See id. at 172. 
3

NOI.4

 The claim against Huron Valley Radiology, P.C., is one based on vicarious 

liability for the professional services of its licensed health care provider-employee; 

hence, plaintiff Brian Potter was required to provide a timely NOI as the action is 

one sounding in medical malpractice. 

Moreover, we hold that the NOI filed in this case was fully compliant with 

the plain language of § 2912b(4), which governs its contents. First, there is no 

requirement in § 2912b(4) to set forth the legal relationships between named 

parties; rather, the plain language of § 2912b(4)(f) only requires naming each 

party to be sued. Secondly, where the only claim asserted against a PC is one for 

vicarious liability, and hence no other standard of care is being asserted against the 

PC, there is no requirement within § 2912b that mandates that a claimant set forth 

the legal doctrine of vicarious liability in the NOI. 

The claim at issue in this case was one for vicarious liability only. In light 

of MCL 450.225, a PC can only render professional services through its licensed 

health care provider. Where the NOI names both the PC and the provider, the 

NOI is fully compliant as long as it sets forth all the factual and medical 

information necessary to inform the PC of the nature of the claim being asserted 

against the physician-provider. Because this NOI met these requirements, it is 

 4

 Conversely, when a claim asserted against a PC involves the actions of an 

employee or agent who is unlicensed or not rendering professional services as 

delineated in MCL 450.225, the NOI requirement would be unnecessary, because 

such a claim would sound in ordinary negligence rather than medical malpractice. 
4

fully compliant and there is no need to dismiss this action on the basis of the NOI. 

We therefore reverse the Court of Appeals judgment and remand the case to the 

trial court for further proceedings consistent with this opinion. 

I. FACTS AND PROCEDURAL HISTORY 

This is a medical malpractice action involving an alleged misreading of an 

MRI by defendant Kristyn H. Murry, M.D., on June 7, 2001. This misreading 

allegedly caused a delay in a needed emergency surgical procedure on plaintiff’s 

spine. This delay resulted in permanent nerve damage to plaintiff’s spine that 

impairs his ability to function, including causing difficulty with such things as 

walking and urinating. At the time of the alleged malpractice, Murry was 

employed by Huron Valley Radiology. 

The procedural history of this case is complicated and lengthy. This case 

has been pending in our appellate system for over four years as the courts have 

conducted an exhaustive review of the content of Potter’s affidavit of merit and his 

NOI. The Court of Appeals has issued two opinions, and we are reviewing this 

case for the second time.5

 The most recent Court of Appeals opinion summarized 

this long journey through our appellate system and the reasoning behind the 

rulings: 

 5 Potter v McLeary, 482 Mich 1004 (2008); Potter v McLeary, 480 Mich 

915 (2007); Potter v McLeary, 278 Mich App 279; 748 NW2d 599 (2008); Potter 

v McLeary, 274 Mich App 222; 732 NW2d 600 (2007). 
5

In these consolidated appeals, defendants appealed by leave 

granted orders in this medical malpractice action denying their 

motions for summary disposition pursuant to MCR 2.116(C)(7). 

Previously, a majority of this Court reversed, holding that plaintiff’s 

complaint should be dismissed with prejudice because the attached 

affidavits of merit did not conform to the requirements of MCL 

600.2912d. Potter v McLeary, 274 Mich App 222; 732 NW2d 600 

(2007). In lieu of granting leave to appeal, our Supreme Court 

reversed the portion of this Court’s judgment “dismissing the 

complaint with prejudice, because the dismissal should have been 

without prejudice . . . .” See 480 Mich 915 (2007) (emphasis in 

original). Our Supreme Court remanded to this Court for 

consideration of the remaining issues not addressed previously. We 

now affirm in part, reverse in part, and remand. 

As noted in our previous opinion, the alleged malpractice 

took place on June 7, 2001. The period of limitations in medical 

malpractice cases is two years from the date the claim accrued. 

MCL 600.5805(6). Presuming the notice of intent was sufficient, the 

running of the period of limitations would have been tolled for 182 

days from the date of the notice. MCL 600.2912b(1). A notice of 

intent was sent to defendants Huron Valley Radiology, P.C., and 

Kristyn H. Murry, M.D., on May 30, 2003, leaving eight days 

remaining before the period of limitations expired. A notice of 

intent was sent to defendants St. Joseph Mercy Hospital Ann Arbor, 

Robert Domeier, D.O., and Emergency Physicians Medical Group, 

P.C., on May 13, 2003, leaving 25 days before the period of 

limitations expired. The notices tolled the running of the limitations 

periods, which recommenced on November 30, 2003, and on 

November 13, 2003, respectively. The limitations period expired on 

December 8, 2003, for all defendants. Plaintiff’s complaint was 

filed on November 4, 2003. 

There was no serious dispute in our prior decision that the 

affidavits of merit were fatally defective because they failed [to] 

state how the physicians’ alleged failures related to plaintiff’s 

alleged injuries, so they did not contain the required statement of 

proximate cause. See MCL 600.2912d. No conforming affidavits of 

merit were filed by December 8, 2003. A majority of this Court 

previously determined that plaintiff had therefore not filed an 

affidavit of merit at all, pursuant to Geralds v Munson Healthcare, 

259 Mich App 225, 240; 673 NW2d 792 (2003), and Mouradian v 

Goldberg, 256 Mich App 566, 574; 664 NW2d 805 (2003), so 
6

plaintiff’s complaint should be dismissed with prejudice. This Court 

therefore deemed it unnecessary to address defendants’ challenges to 

plaintiff’s notices of intent. 

After this Court’s previous decision, our Supreme Court 

overruled Geralds and Mouradian as having misapplied the case of 

Scarsella v Pollak, 461 Mich 547, 553; 607 NW2d 711 (2000). 

Kirkaldy v Rim, 478 Mich 581, 583-584; 734 NW2d 201 (2007). 

Our Supreme Court explained that Scarsella had only held that “a 

medical-malpractice complaint filed without an affidavit of merit” 

was ineffective and would not toll the running of the applicable 

limitations period. Id. at 584 (emphasis in original). It further 

explained that Geralds and Mouradian had wrongly extended that 

holding to medical-malpractice complaints that were actually filed 

with affidavits of merit, but where those affidavits of merit failed to 

conform to the requirements of MCL 600.2912d. Kirkaldy, supra at 

584-585. Our Supreme Court concluded that an affidavit of merit is 

presumptively valid—and therefore tolls the running of a limitations 

period when filed with a complaint—until successfully challenged in 

a judicial proceeding. Id. at 585-586. “Thus, if the defendant 

believes that an affidavit is deficient, the defendant must challenge 

the affidavit,” and the proper remedy for a successful challenge is 

dismissal without prejudice, affording the plaintiff “whatever time 

remains in the period of limitations” to file a complaint with a 

conforming affidavit. Id. at 586. 

Our Supreme Court’s partial reversal in this case was based 

on its decision in Kirkaldy. As applied to the case at bar, plaintiff’s 

complaint, filed with the affidavits of merit, tolled the running of the 

limitations period. Because we conclude that those affidavits of 

merit did not conform to the requirements of MCL 600.2912b, the 

proper remedy is for the trial court to dismiss plaintiff’s complaint 

without prejudice. Plaintiff may then file a new complaint with 

conforming affidavits of merit within the time remaining in the 

limitations period. 

Because we declined to do so previously, we must address 

defendants Murry’s and Huron Valley Radiology’s challenges to the 

sufficiency of the notices of intent sent to them. Murry and Huron 

Valley Radiology first argue that the notice does not properly state 

the applicable standard of practice or care as required by MCL 

600.2912b(4)(b). We agree, in part. The second paragraph of 

plaintiff’s notice sets forth the following standard of care: 
7

The standard of care required Drs. Murry and/or [Gary] 

Augustyn and/or [Richard C.] McLeary to correctly read, interpret 

and report the correct results to the emergency room under the 

circumstances. Notwithstanding that standard of care, Drs. Murry 

and/or Augustyn and/or McLeary failed to properly interpret the 

MRI images and convey accurate information to the emergency 

room physician in charge of the patient that night. 

The standard of care completely fails to make any reference 

to defendant Huron Valley Radiology. Our Supreme Court has 

explained that plaintiff is not obligated to provide a completely 

correct standard of care, but “plaintiff was required to make a goodfaith averment of some particularized standard for each of the 

professionals and facilities named in the notices.” Roberts v 

Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 694; 684 

NW2d 711 (2004) (emphasis in original). The standard alleged here 

is more than the tautology rejected in Roberts, and we find it 

adequate with regard to defendant Murry. Plaintiff articulated a 

specific standard that Murry must correctly read, interpret, and 

report the results of the MRI test. This is specific to the 

requirements of the service that plaintiff received from Murry. It 

was sufficient to put defendant Murry on notice of the nature of the 

claim, which was failure to properly identify and report plaintiff’s 

injury. Therefore, it met the requirements of MCL600.2912b(4)(b) 

with regard to Murry. However, the notice cannot satisfy all the 

statutory requirements with regard to defendant Huron Valley 

Radiology. 

* * * 

Because no other challenges to the notices of intent are raised, 

we will not consider them further. Therefore, the trial court properly 

denied summary disposition on the basis of the notices of intent to 

all defendants other than Huron Valley Radiology. With regard to 

Huron Valley Radiology, we believe that our Supreme Court’s 

treatment of deficient—but actually filed—affidavits of merit 

should, by analogy, be applied to deficient—but again actually 

filed— notices of intent, as well. See Kirkaldy, supra at 586. 

Notices of intent are presumed to be valid and proper, so they 

support the filing of a complaint after the notice period has run, 

unless and until the notice is successfully challenged. The remedy to 

be applied if a notice is successfully challenged is dismissal without 

prejudice, affording the plaintiff the opportunity to cure the 

deficiency within the time remaining within the limitations period as 
8

theretofore tolled by the now-invalidated notice or the subsequent 

filing of the complaint. 

We hold as follows: summary disposition is granted without 

prejudice to Huron Valley Radiology on the basis of the notice of 

intent, summary disposition is denied to all other defendants on the 

basis of the notices of intent, and summary disposition is granted 

without prejudice to all defendants on the basis of the affidavits of 

merit. The applicable limitations periods remain tolled until entry of 

the grants of summary disposition. We remand for further 

proceedings consistent with this opinion.[6]

 On March 20, 2008, plaintiff filed an application for leave to appeal asking 

this Court to grant leave to consider whether his NOI complied with the content 

requirements of § 2912b. On October 1, 2008, this Court granted leave; however, 

the issue was limited to the threshold question of whether it was necessary to 

provide an NOI to a PC. That order provided: 

On order of the Court, the application for leave to appeal the 

March 20, 2008, judgment of the Court of Appeals is considered 

and, it is granted, limited to the issue whether defendant Huron 

Valley Radiology, P.C. is a “health facility or agency” to which a 

plaintiff is required to provide notice under MCL 600.2912b(1). See 

MCL 333.20106(1).[7]

 Despite the limited grant order, the parties addressed the content of the NOI 

and whether it was defective in their briefing and in oral argument while 

advancing their respective positions.8

 After oral argument, the Court expanded the 

 6 Potter, 278 Mich App at 281-286. 

7 Potter, 482 Mich at 1004. 

8

 Defendant Huron Valley Radiology addressed the sufficiency of the NOI 

issue extensively in its brief on appeal. This brief sets forth the sufficiency issue 

as one of the questions presented for us to decide. The brief also sets forth the 
9

grant order by asking the parties to file supplemental briefs on the additional issue 

of the tolling of the statute of limitations: 

Oral argument having been heard on March 4, 2009, the 

parties are directed to submit supplemental briefs addressing the 

issue whether, if a defendant professional corporation is not an entity 

to whom notice is required to be provided under MCL 600.2912b, 

the applicable statute of limitations, MCL 600.5805(6), was 

nonetheless subject to statutory tolling provided in former MCL 

600.5856(d).[9]

As we have resolved the threshold issue by holding that Potter must provide an 

NOI to Huron Valley Radiology, we must also resolve the underlying issue of 

whether this NOI is defective in order to conclude the analysis in this case. We 

take particular note of the fact that it has been over eight years since the 

malpractice occurred and nearly six years since the subject NOI was mailed to 

defendants. Further, it has been over 51⁄2 years since the complaint was filed, with 

the last four years having been devoted to the appeal of issues relating to the 

affidavit of merit and the NOI. The parties are still waiting to have a court address 

the merits of the case. Given that we have had briefing and argument on all 

 

entire content of the NOI and articulates the view that the NOI is defective. The 

brief cites statutes and cases to support its position. Moreover, in its prayer for 

relief, defendant asks us to decide the remaining issues in plaintiff’s application 

for leave to appeal. One of the two remaining questions in plaintiff’s application 

for leave to appeal is whether the NOI was defective. Further, plaintiff 

sufficiently addressed this issue at oral argument. The briefs and transcript of the 

oral argument can be viewed at: 

http://www.courts.michigan.gov/supremecourt/Clerk/03-09/136336/136336-

Index.html. 

9 Potter v Murry, 483 Mich 922 (2009). 
10

necessary issues, we can decide in this opinion both whether the plaintiff must 

provide a PC an NOI before commencing an action as well as whether the subject 

NOI was compliant with § 2912b. 

II. STANDARD OF REVIEW 

 The issues presented are issues of statutory interpretation. Statutory 

interpretation is a question of law, which this Court reviews de novo.10 This Court 

also reviews de novo a trial court’s decision regarding a motion for summary 

disposition.11

III. ANALYSIS 

 Interpretation of the NOI provision presents questions of statutory 

construction. Assuming that the Legislature has acted within its constitutional 

authority, the purpose of statutory construction is to discern and give effect to the 

intent of the Legislature.12 In determining the intent of the Legislature, this Court 

must first look to the language of the statute.13 The Court must, first and foremost, 

interpret the language of a statute in a manner that is consistent with the intent of 

 10 In re Investigation of March 1999 Riots in East Lansing (People v 

Pastor), 463 Mich 378, 383; 617 NW2d 310 (2000). 

11 Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000). 

12 Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 

(1999). 

13 Id. 
11

the Legislature.14 “‘As far as possible, effect should be given to every phrase, 

clause, and word in the statute. The statutory language must be read and 

understood in its grammatical context, unless it is clear that something different 

was intended.’”15 Moreover, when considering the correct interpretation, the 

statute must be read as a whole.16 Individual words and phrases, while important, 

should be read in the context of the entire legislative scheme.17 In defining 

particular words in statutes, we must consider both the plain meaning of the 

critical word or phrase as well as its placement and purpose in the statutory 

scheme.18 A statute must be read in conjunction with other relevant statutes to 

ensure that the legislative intent is correctly ascertained.19 Finally, the statute must 

be interpreted in a manner that ensures that it works in harmony with the entire 

statutory scheme.20

 14 Id. at 135. 

15 Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570, 579 (2008), 

quoting Sun Valley, supra at 237. 

16 Sun Valley, supra at 237. 

17 Herman, supra at 366. 

18 Id., quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 

L Ed 2d 472 (1995). 

19 Wayne Co v Auditor General, 250 Mich 227, 223; 229 NW 911 (1930). 

20 Wayne Co, supra at 234. 
12

A. The Nature of Services Provided by a Professional Corporation 

 Before we address whether a plaintiff must provide an NOI to a PC, it is 

necessary to review the legal structure of a PC and understand the nature of the 

services it provides. Since a professional corporation is a statutory creature, we 

look to the Professional Service Corporation Act, MCL 450.221 et seq., for 

guidance. The relevant provision of that act provides, in pertinent part: 

A corporation organized and incorporated under this act 

shall not render professional services within this state except 

through its officers, employees, and agents who are duly licensed or 

otherwise legally authorized to render the professional services 

within this state. The term employee does not include secretaries, 

bookkeepers, technicians, and other assistants who are not usually 

and ordinarily considered by custom and practice to be rendering 

professional services to the public for which a license or other legal 

authorization is required. [MCL 450.225 (emphasis added).] 

 This provision makes clear that a PC, while a separate legal entity, does not 

render professional services on its own; rather, it can only render professional 

services through its employees or agents who are licensed or legally authorized to 

render the professional services. This language stands as a legislative recognition 

that when a PC renders professional services, it is inexorably linked to the licensed 

health care provider. For all practical purposes, the PC and the health care 

provider are treated as the same entity when professional services are involved.21 

Moreover, a PC can perform other types of services or take other actions through 

 21 See Peters v Golds, 366 F Supp 150 (1973), which held that a PC is 

treated as a person for purposes of § 5838a. 
13

unlicensed employees or agents, but such actions would not constitute professional 

services under the act. This delineation of types of services is emphasized not 

only in the first sentence, it is reasserted in the second sentence of MCL 450.227, 

which states that “[t]he term employee does not include secretaries, bookkeepers, 

technicians, and other assistants who are not usually and ordinarily considered by 

custom and practice to be rendering professional services to the public for which a 

license or other legal authorization is required.” Thus, a PC can engage in two 

different types of actions: those that are professional services and those that are 

not. While the PC is vicariously liable for either of these types of actions pursuant 

to MCL 450.226,22 this distinction is pertinent in determining whether the medical 

malpractice statutes apply to a particular cause of action. 

 22 MCL 450.226 provides: 

Nothing contained in this act shall be interpreted to abolish, 

repeal, modify, restrict or limit the law now in effect in this state 

applicable to the professional relationship and liabilities between the 

person furnishing the professional services and the person receiving 

such professional service and to the standards for professional 

conduct. Any officer, shareholder, agent or employee of a 

corporation organized under this act shall remain personally and 

fully liable and accountable for any negligent or wrongful acts or 

misconduct committed by him, or by any person under his direct 

supervision and control, while rendering professional service on 

behalf of the corporation to the person for whom such professional 

services were being rendered. The corporation shall be liable up to 

the full value of its property for any negligent or wrongful acts or 

misconduct committed by any of its officers, shareholders, agents or 

employees while they are engaged on behalf of the corporation in the 

rendering of professional services. 
14

B. Professional Corporations and the NOI Requirement 

 We now examine whether a plaintiff is required to provide an NOI to a PC 

before commencing a medical malpractice action. We start our analysis by 

examining the language of the NOI provision itself. Section 2912b states in 

relevant part: 

(1) Except as otherwise provided in this section, 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. 

[Emphasis added.] 

 The first sentence in this section provides critical guidance. The statute 

expressly limits the requirement of an NOI to an action alleging medical 

malpractice: “[A] person shall not commence an action alleging medical 

malpractice . . . .” Thus, the first step in the analysis is to determine whether the 

action sounds in medical malpractice or ordinary negligence. Only those actions 

sounding in medical malpractice are governed by the mandates of this statute. 

 This Court recently reiterated the method by which claims of medical 

malpractice and ordinary negligence are distinguished. In Kuznar, this Court was 

asked to determine whether a claim against a pharmacy for the actions of its nonlicensed technicians sounded in medical malpractice or in ordinary negligence. In 

holding that the claims sounded in ordinary negligence, Kuznar reiterated the long 

standing rule that claims sound in medical malpractice only when a two-prong test 

is met. First, the claim must occur in the course of a professional relationship, and 
15

second, the claim must pose questions of medical judgment outside the realm of 

common knowledge and experience. If either prong is not met, the action sounds 

in ordinary negligence rather than medical malpractice.23 With regard to the first 

prong, Kuznar stated: 

A professional relationship exists if a person or an entity 

capable of committing medical malpractice was subject to a 

contractual duty to render professional health-care services to the 

plaintiff. Under the common law, only physicians and surgeons 

were potentially liable for medical malpractice. But in MCL 

600.5838a(1), the Legislature expanded the scope of those who 

could be liable for medical malpractice. It provided for medical 

malpractice claims to be brought against “a person or entity who is 

or who holds himself or herself out to be a licensed health care 

professional, licensed health facility or agency, or an employee or 

agent of a licensed health facility or agency . . . .” 

The primary issue in this case is whether the pharmacy 

technician and the pharmacy are covered by MCL 600.5838a(1).[24] 

Kuznar correctly opined that only those health care providers and facilities 

designated within § 5838a could be sued for malpractice. Therefore, only those 

providers and facilities covered by § 5838a can meet the professional relationship 

prong of the test. Accordingly, Kuznar reviewed the language of § 5838a(1) to 

determine if a pharmacy was a designated entity. Section 5838a(1)(a) defines a 

“licensed health facility or agency” as “a health facility or agency licensed under 

 23 There is no dispute that the second prong of the Kuznar test has been met 

in this case. The claim indisputably presents questions of medical judgment 

outside the realm of common knowledge and experience. 

24 Kuznar, supra at 177. 
16

article 17 of the public health code, Act No. 368 of the Public Acts of 1978, being 

sections 333.20101 to 333.22260 of the Michigan Compiled Laws.” 

Because § 5838a(1)(a) limits its application to only those health facilities 

and agencies licensed under article 17 of the Public Health Code, Kuznar next 

turned its attention to MCL 333.20106(1) to determine whether a pharmacy was 

within the list of designated entities. MCL 333.20106(1) provides that “health 

facility or agency” means: 

(a) An ambulance operation, aircraft transport operation, 

nontransport prehospital life support operation, or medical first 

response service. 

(b) A clinical laboratory. 

(c) A county medical care facility. 

(d) A freestanding surgical outpatient facility. 

(e) A health maintenance organization. 

(f) A home for the aged. 

(g) A hospital. 

(h) A nursing home. 

(i) A hospice. 

(j) A hospice residence. 

(k) A facility or agency listed in subdivisions (a) to (h) 

located in a university, college, or other educational institution. 
17

Kuznar concluded that because pharmacies were not included within this 

list, the claims asserted against them did not sound in medical malpractice.25 

Rather, the claims asserted against the pharmacy sounded in ordinary negligence, 

and, accordingly, the medical malpractice statutes simply did not apply. It is this 

same statutory provision and analysis that has led to the question we now address. 

Because this same list of health facilities contained in § 333.20106(1) does not 

include PCs, the question arises whether PCs are exempt from any of the 

requirements of the medical malpractice statutory scheme. We conclude that it is 

unnecessary to refer to the list in § 333.20106(1) in this instance because the plain 

language of § 600.5838a, as amended effective April 1, 1994, expressly includes 

professional corporations within its definitional section. 

 Section 5838a, as amended, provides in pertinent part: 

(1) For purposes of this act, a claim based on the medical 

malpractice of a person or entity who is or who holds himself or 

herself out to be a licensed health care professional, licensed health 

facility or agency, or an employee or agent of a licensed health 

facility or agency who is engaging in or otherwise assisting in 

medical care and treatment, whether or not the licensed health care 

professional, licensed health facility or agency, or their employee or 

agent is engaged in the practice of the health profession in a sole 

proprietorship, partnership, professional corporation, or other 

 25 We note that satisfying the first prong of Kuznar requires more than mere 

inclusion within the public health code lists. The service provided must also be a 

professional service, the determination of which requires further analysis. For 

example, while hospitals are included in the list, not all hospital employees, such 

as janitors and dietary aides, provide professional services. However, inclusion 

within either § 5838a or the public health code lists is a necessary predicate to an 

action sounding in medical malpractice. 
18

business entity, accrues at the time of the act or omission that is the 

basis for the claim of medical malpractice, regardless of the time the 

plaintiff discovers or otherwise has knowledge of the claim. As used 

in this subsection: 

(a) “Licensed health facility or agency” means a health 

facility or agency licensed under article 17 of the public health code, 

Act No. 368 of the Public Acts of 1978, being sections 333.20101 to 

333.22260 of the Michigan Compiled Laws. 

(b) “Licensed health care professional” means an individual 

licensed or registered under article 15 of the public health code, Act 

No. 368 of the Public Acts of 1978, being sections 333.16101 to 

333.18838 of the Michigan Compiled Laws, and engaged in the 

practice of his or her health profession in a sole proprietorship, 

partnership, professional corporation, or other business entity. 

However, licensed health care professional does not include a 

sanitarian or a veterinarian. [Emphasis added.] 

This amendment of § 5838a was enacted as part of the same package of 

bills that created the NOI provision in April of 1994.26 The amended § 5838a 

refers to professional corporations twice. Before this amendment, § 5838a made 

no reference whatsoever to professional corporations.27 This specific addition of 

 26 Section 5838a and § 2912b were both amended by 1993 PA 78, 

effective April 1, 1994. 

27 The former § 5838a provided: 

(1) A claim based on the medical malpractice of a person who 

is, or who holds himself or herself out to be, a licensed health care 

professional, licensed health facility or agency, employee or agent of 

a licensed health facility or agency who is engaging in or otherwise 

assisting in medical care and treatment, or any other health care 

professional, whether or not licensed by the state, accrues at the time 

of the act or omission which is the basis for the claim of medical 

malpractice, regardless of the time the plaintiff discovers or 

otherwise has knowledge of the claim. As used in this subsection: 
19

professional corporations to § 5838a was a clear statement by the Legislature that 

it intended a PC to be an entity against which a medical malpractice action could 

be asserted. Further, the placement of the reference to professional corporations 

within § 5838a(1)(b) (defining heath care professionals), rather than within 

§ 5838a(1)(a) (defining health facilities), stands as a recognition of the nature of 

services as delineated in the Professional Service Corporation Act, MCL 450.225. 

When a PC renders professional services, it is rendering those professional 

services through the licensed health care provider and the two are treated as 

though they are one entity. 

 Finally, § 5838a recognizes that some services provided by a PC are 

professional services while others are not. Where the services provided are 

professional services rendered by a licensed health care provider, any claim 

challenging those services as being negligent sound in medical malpractice, and 

the statutes governing medical malpractice apply. Where the services provided by 

a PC are not professional services as defined in MCL 450.225, the claim would 

 

(a) “Licensed health facility or agency” means a health 

facility or agency licensed under article 17 of the public health code, 

Act No. 368 of the Public Acts of 1978, being sections 333.20101 to 

333.22181 of the Michigan Compiled Laws. 

(b) “Licensed health care professional” means an individual 

licensed under article 15 of the public health code, Act No. 368 of 

the Public Acts of 1978, being sections 333.16101 to 333.18838 of 

the Michigan Compiled Laws. Licensed health care professional 

does not include a sanitarian or a veterinarian. 
20

not be subject to the medical malpractice requirements because those claims sound 

in ordinary negligence. To hold otherwise would negate the intent of the 

Legislature and ignore the proper rules of statutory construction, which require 

that any one statute be read in conjunction with other relevant statutes to ensure 

that legislative intent is being correctly ascertained. 

 Accordingly, in the instant case, the first prong of the Kuznar test is met 

because a PC is a covered entity under § 5838a and the services provided were 

professional services. The second prong of the Kuznar test is also met because 

there is no dispute that the claims asserted posed questions of medical judgment 

outside the realm of common knowledge and experience. Consequently, because 

both prongs of the Kuznar test have been met, we conclude that this is a claim that 

sounds in medical malpractice. Because §2912b(1) clearly requires a claimant to 

provide a timely NOI before commencing a medical malpractice action, plaintiff 

was required to provide this PC with a timely NOI. 

C. The Content Requirements of MCL 600.2912b 

 Because plaintiff did provide an NOI to Huron Valley Radiology, the next 

issue is whether the NOI was defective. The resolution of this issue requires an 

examination of the content requirements of § 2912b. The Court of Appeals ruled 

that the instant NOI contained a defect, thereby necessitating dismissal of the 

action without prejudice. The purported defect in the NOI can be summarized as 

the failure of plaintiff to set forth a statement in the NOI that Dr. Murry was the 
21

employee of Huron Valley Radiology and that this PC was vicariously liable for 

the actions of its employee-doctor. We take note of the fact that both the trial 

court and the Court of Appeals have held that the NOI was fully compliant with 

the content requirements under § 2912b(4) in all respects regarding Dr. Murry, a 

holding with which we fully agree. Also, we note that the only claim pursued 

against Huron Valley Radiology was one for vicarious liability for the actions of 

Dr. Murry, and the NOI fully informed Huron Valley Radiology and Dr. Murry of 

the claim being asserted against Dr. Murry. Thus, we are compelled to review 

§ 2912b to determine if there is a statutory mandate to specifically set forth the 

legal relationship between these two parties in the NOI, and whether there is a 

statutory mandate to set forth that the claim asserted is one for vicarious liability 

when no other claims are being asserted. Our inquiry once again necessarily 

begins with an examination of the language of § 2912b. 

 The first question we examine is whether § 2912b requires that legal and 

employment relationships between the parties be set forth in an NOI. We hold 

that the answer is no. The content requirements for an NOI are set forth in 

subsection 2912b(4): 

(4) The notice given to a health professional or health facility 

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

following: 

 (a) The factual basis for the claim. 

 (b) The applicable standard of practice or care alleged by the 

claimant. 

 (c) The manner in which it is claimed that the applicable 

standard of practice or care was breached by the health professional 
22

or health facility. 

 (d) The alleged action that should have been taken to achieve 

compliance with the alleged standard of practice or care. 

 (e) 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. 

 (f) The names of all health professionals and health facilities 

the claimant is notifying under this section in relation to the claim. 

We find no language in this subsection that requires a claimant to set forth 

the nature of the relationship between the parties to be sued. To the contrary, 

subsection f clearly states that all that need be done in this regard is to identify the 

names of the health professional and facility being notified. We cannot add a 

requirement that is not contained in the statute’s plain language. Moreover, we 

cannot assume that defendants were unable to comprehend the nature of the 

relationship between them without having a claimant advise them in writing that 

such a relationship exists. Certainly they are fully aware of the legal relationship 

between them.28 More importantly, however, there simply is no requirement in the 

statute that a claimant advise the defendants of their legal or employment 

relationship.29 Accordingly, Potter’s NOI was not defective in this regard. 

 28 Moreover, it would be illogical to assume that a claimant knows the 

precise legal relationship between defendants. The provider may have either an 

actual employment relationship with the PC or they may have a complex 

independent contractor arrangement. While the PC can be vicariously liable for 

the acts of either under MCL 450.226, the statute logically imposes no 

requirement on the claimant to allege the precise nature of the relationship. 

29 However, even assuming for the sake of argument that there was a 

requirement to set forth legal relationships in the statute, the NOI meets that 

burden. Plaintiff’s NOI does more than merely name the entities to be sued; the 
23

Our next query is whether § 2912b(4) contains a requirement that the 

claimant specifically set forth the legal theory of vicarious liability within the 

NOI, when vicarious liability is the only claim asserted. We again hold that the 

answer is an unequivocal no. There is nothing in the language of § 2912b(4) that 

states that a claimant must set forth the legal theory of vicarious liability. Nor can 

we add such a requirement to the statute. The statute is focused on a requirement 

that the claimants advise the recipient of the factual and medical basis of the claim 

being asserted.30 If no other claim is asserted against the PC, then there is no 

possibility for confusion regarding the nature of the claim being asserted against it. 

If the claimant wishes to make some other claim against the PC, then the claimant 

 

NOI names Huron Valley Radiology, P.C. as well as the three individual 

physicians and “their employees or agents, actual or ostensible, thereof.” This 

phrase is repeated three times throughout the NOI. This language is more than 

sufficient to provide Huron Valley Radiology with notice of the facts establishing 

the legal relationships at such an early stage of the proceeding. 

30 Any argument that it is necessary to plead facts supporting vicarious 

liability or to state the phrase “vicarious liability” as part and parcel of the “factual 

basis of the claim” is misplaced and misreads the NOI statute. Section 2912b(4) 

does not contain such a requirement and we must assume that the absence of the 

requirement was purposeful. If the Legislature wanted such a requirement it could 

have easily included it. It could have phrased § 2912b(4)(a) as “the factual and 

legal basis for the claim and whether the claim is for direct liability or vicarious 

liability.” But it did not do so. The Legislature could also have inserted additional 

mandates, such as requiring the claimant to set forth that the “provider is licensed 

to practice medicine in Michigan” or “the provider is licensed under a specific 

provision of the public health code.” However, again, the Legislature chose not to 

do so. Absent statutory guidance, we cannot impose additional requirements upon 

claimants. The better judicial practice is to refrain from adding requirements to a 

statute that are not contained within its language. 
24

would be required to set forth that additional claim in order to satisfy the § 2912b 

(4)(b) “applicable standard of care” requirement. But if the only claim asserted 

against the PC is one for vicarious liability, the “applicable standard of care” 

requirement is met because there is only one standard of care: the standard of care 

for the provider. There is no separate standard of care for the PC. This analysis 

not only holds true to the statutory language, but also fully recognizes that the 

agent and principal share a singular identity for purposes of performing 

professional services, pursuant to the statute governing professional 

corporations.31 Accordingly, where the NOI adequately sets forth the claim 

against the agent or employee, the claimant need not repeat the same information, 

or state the words “vicarious liability” in the NOI, because the statute does not 

require the claimant to do so. 

Moreover, we find Huron Valley Radiology’s assertions especially 

troubling because it openly admits knowing and understanding that it is 

vicariously liable for the actions of its employee, Dr. Murry. In other words, while 

admitting that it employs Dr. Murry, Huron Valley Radiology simultaneously asks 

that we dismiss plaintiff’s case for plaintiff’s failure to tell it that it employs Dr. 

Murry. We query what purpose such a statement would serve. Huron Valley 

Radiology’s proposition exalts form over substance in an intolerable manner. 

More importantly, however, because there is no requirement in the statute to state 

 31 MCL 450.225. 
25

the legal term of “vicarious liability” within the NOI, we will not hold plaintiff to 

this requirement, nor will we write such a requirement into the statute.32 

 This holding is also consistent with this Court’s longstanding principles 

forming the foundation of vicarious liability. A master is bound to keep his or her 

servants within their proper bounds, and is responsible if he or she does not. “The 

law contemplates that their acts are his acts, and that he is constructively present at 

them all.”

33 This Court has long held that a principal “is only liable because the 

law creates a practical identity with his men [agents], so that he is held to have 

 32 We do not believe that this Court’s ruling in Roberts v Mecosta Co Gen 

Hosp (Roberts II), 470 Mich 679; 684 NW2d 711 (2004), is dispositive. Roberts 

II discussed a similar issue that arose when the plaintiff asserted claims in a 

manner that left confusion regarding whether the claims asserted were for direct 

liability, vicarious liability, or both. The Court stated: 

Although it appears from plaintiff’s complaint that she is 

claiming that the hospital and professional corporation are 

vicariously liable for the negligence of their agents, the notices of 

intent implied that plaintiff alleged direct negligence against these 

defendants for negligently hiring or negligently granting staff 

privileges to the individual defendants. [Roberts II, supra at 693.] 

We question whether Roberts II was correctly decided because it adds a 

requirement not found in the language of the statute; namely, that statements be 

“particularized.” However, Roberts II opined that because there was confusion 

with regard to whether the claim was for direct or vicarious liability, the PC was 

unable to understand the nature of the claims being asserted. In the case before us, 

no such potential for confusion exists, and, accordingly, Roberts II is 

distinguishable. 

33 Smith v Webster, 23 Mich 298, 299 (1871). 
26

done what they have done.”34 This longstanding legal doctrine is embodied in 

MCL 450.225. As previously discussed, that statute recognizes that a PC can only 

render professional services through its licensed health care providers. 

Accordingly, with regard to vicarious liability claims, the parties are in fact the 

same actor, and therefore, there is no need for a claimant to duplicate the same 

information in the NOI for both parties. If the information contained within the 

NOI is sufficient with regard to the agent, it is sufficient with regard to the 

principal, because they share a practical identity for purposes of that claim. 

In sum, the issue is whether Huron Valley Radiology could reasonably be 

held to comprehend the nature of the claims being asserted against it. The NOI 

provided the necessary information for both the PC and the doctor to have such an 

understanding. The only claim asserted against Huron Valley Radiology was for 

the actions of Dr. Murry, and those actions were fully and adequately set forth in 

the NOI. Nothing more is required. We conclude that the NOI in this case was 

not defective and dismissal of the action is not warranted. 

IV. CONCLUSION 

We hold that a plaintiff must provide a timely NOI to a PC before 

commencing a medical malpractice action when the claims alleged against the PC 

are predicated on its vicarious liability for a licensed health care provider who is 

 34 Id. at 300. See also Ducre v Sparrow-Kroll Lumber Co, 168 Mich 49, 

52; 133 NW 938 (1911). 
27

rendering professional services. Because the claim against Huron Valley 

Radiology is based on vicarious liability for the professional services of its 

employee, a licensed health care provider, plaintiff was required to provide a 

timely NOI as the action is one sounding in medical malpractice. 

Moreover, we conclude that the NOI filed in this case was fully compliant 

with the plain language of § 2912b(4), which governs its contents. First, there is 

no requirement in § 2912b(4) to set forth the legal relationships between named 

parties; rather, the plain language of § 2912b(4)(f) only requires naming each 

party to be sued. Secondly, where the only claim asserted against a PC is one for 

vicarious liability, and hence no other standard of care is being asserted against the 

PC, there is no requirement within § 2912b that mandates that a claimant set forth 

the legal doctrine of vicarious liability in the NOI. 

The claim at issue in this case was one for vicarious liability only. In light 

of MCL 450.225, a PC can only render professional services through its licensed 

health care provider. Where the NOI names both the PC and the provider, the 

NOI is fully compliant so long as it sets forth all of the factual and medical 

information necessary to inform the PC of the nature of the claim being asserted 

against the physician-provider. Because this NOI meets these requirements, it is 

fully compliant and there is no need to dismiss this action on the basis of the NOI. 

We therefore reverse the Court of Appeals judgment and remand the case to 

the trial court for further proceedings consistent with this opinion. Furthermore, 
28

we vacate the order abeying the applications for leave to appeal in Potter v 

McLeary (Docket Nos. 136338 and 136339) and deny the applications in light of 

this opinion. 

Diane M. Hathaway 

Marilyn Kelly 

Michael F. Cavanagh 

Elizabeth A. Weaver
S T A T E O F M I C H I G A N 

SUPREME COURT 

BRIAN POTTER, 

 Plaintiff-Appellant, 

v No. 136336 

RICHARD C. McLEARY, M.D., GARY 

AUGUSTYN, M.D., ST. JOSEPH MERCY 

HOSPITAL ANN ARBOR, d/b/a TRINITY 

HEALTH-MICHIGAN, ROBERT 

DOMEIER, D.O., and EMERGENCY 

PHYSICIANS MEDICAL GROUP, P.C., 

 Defendants, 

and 

KRISTYN H. MURRY, M.D. and HURON 

VALLEY RADIOLOGY P.C., 

Defendants-Appellees. 

____________________________________ 

KELLY, C.J. (concurring). 

 I fully agree with and sign the majority opinion in this case. I write for the 

sole purpose of responding to Justice Markman’s comments attacking the 

majority’s respect for the doctrine of stare decisis. In his partial concurrence and 

partial dissent, Justice Markman repeats a claim that he and Justices Corrigan and 
2

Young have published numerous times this term1

 with the same string of 

citations.2

 The claim is that their colleagues who comprise the majority in this 

case have been ignoring precedent. A review of the cases in the string citation 

serves to illustrate that the claim is simply false. 

 Justice Markman claims that in Vanslembrouck v Halperin,

3

 the Court 

ignored Vega v Lakeland Hosps.

4

 However, Vanslembrouck is distinguishable 

from Vega because Vega determined that MCL 600.5851(1) is a saving provision, 

whereas Vanslembrouck held that MCL 600.5851(7) is a statute of limitations. 

Thus, these cases examined the effect of altogether different statutory provisions. 

Justice Markman also claims that in Hardacre v Saginaw Vascular 

Services,

5

 the Court failed to follow Boodt v Borgess Med Ctr.

6

 However, in 

 1

 See, e.g., Petersen v Magna Corp, 484 Mich ___; ___ NW2d ___ (2009) 

(Markman, J., dissenting), decided July 31, 2009 (Docket Nos. 136542 and 

136543); Chambers v Wayne Co Airport Auth, 483 Mich 1081, 1082 (2009) 

(Corrigan, J., dissenting); Scott v State Farm Mut Auto Ins Co, 483 Mich 1032, 

1036 (2009) (Corrigan, J., dissenting); Beasley v Michigan, 483 Mich 1025, 1027 

(2009) (Corrigan, J., dissenting); Juarez v Holbrook, 483 Mich 970 (2009) 

(Markman, J., dissenting). Justice Young joined the dissenting statements in 

Chambers, Scott, Beasley, and Juarez. 

2 Post at 30 n 23. 

3 Vanslembrouck v Halperin, 483 Mich 965 (2009). 

4 Vega v Lakeland Hospitals at Niles-St Joseph, Inc, 479 Mich 243; 736 

NW2d 561 (2007). 

5 Hardacre v Saginaw Vascular Services, 483 Mich 918 (2009). 

6 Boodt v Borgess Med Ctr, 481 Mich 558; 751 NW2d 44 (2008). 
3

Hardacre, the Court denied leave to appeal because the allegations in the 

plaintiff’s notice of intent to find an action did not need to comply with Boodt. In 

Hardacre, the burden of explication of the standard of care was minimal.7

Nor did the Court ignore precedents with which it disagrees in Sazima v 

Shepherd Bar & Restaurant.

8

 Justice Markman claims that the Court failed to 

follow Chrysler v Blue Arrow Transport Lines.

9

 However, Sazima involved 

exceptions to the “going and coming” rule as set forth in Camburn v Northwest 

School Dist.10 Thus, the Court was not bound by Chrysler. 

Justice Markman next claims the Court ignored Smith v Khouri11 when it 

decided Juarez v Holbrook.

12 However, in Juarez, it was undisputed that the trial 

court performed a reasonableness analysis in calculating the proper attorney fee 

award. Therefore, a remand in light of Smith was unnecessary. 

 7

 See Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 694 

n 12; 684 NW2d 711 (2004). 

8 Sazima v Shepherd Bar & Restaurant, 483 Mich 924 (2009). 

9 Chrysler v Blue Arrow Transport Lines, 295 Mich 606; 295 NW 331 

(1940). 

10 Camburn v Northwest School Dist (After Remand), 459 Mich 471, 478; 

592 NW2d 46 (1999). 

11 Smith v Khouri, 481 Mich 519; 751 NW2d 472 (2008). 

12 Juarez, supra. 
4

In Beasley v Michigan,

13 the Court considered the statutory notice provision 

of MCL 600.6431(3). Thus, contrary to Justice Markman’s claim, the Court was 

not bound by Rowland v Washtenaw Co Rd Comm.

14 Rowland interpreted the 

notice provision of MCL 600.1404(1); thus, the cases involved different statutory 

provisions altogether. 

Likewise, Justice Markman is incorrect in claiming that the Court failed to 

enforce Thornton v Allstate Ins Co15 and Putkamer v Transamerica Ins Corp of 

America16 in Scott v State Farm Mut Auto Ins Co.

17 In Scott, the Court of Appeals 

undertook a thorough analysis of the relevant no-fault jurisprudence and applied 

precedent as it has been understood for nearly 30 years. 

Finally, the Court did not fail to abide by Rowland in Chambers v Wayne 

Co Airport Auth.

18 Chambers interpreted MCL 691.1406, while Rowland

interpreted MCL 691.1404(1). Thus, the cases dealt with different statutory 

 13 Beasley v Michigan, 483 Mich 1025 (2009). 

14 Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731 NW2d 41 

(2007). 

15 Thornton v Allstate Ins Co, 425 Mich 643; 391 NW2d 320 (1986). 

16 Putkamer v Transamerica Ins Corp of America, 454 Mich 626; 563 

NW2d 683 (1997). 

17 Scott, supra at 1032. 

18 Chambers, supra. 
5

provisions and the Court was not bound to extend Rowland to the statute at issue 

in Chambers. 

In summary, the accusation that the Court has been ignoring precedent is 

incorrect. Had other Justices been in the majority in some of the decisions 

complained about, they might well have extended existing precedent to a new area 

of the law. But the refusal of those in the majority in this case to so extend 

precedent is quite different from a refusal on their part to apply it. This is a 

distinction that Justices Markman, Corrigan, and Young would do well to concede. 

Marilyn Kelly 
S T A T E O F M I C H I G A N 

SUPREME COURT 

BRIAN POTTER, 

 Plaintiff-Appellant, 

v No. 136336 

 

RICHARD C. McLEARY, M.D., GARY 

AUGUSTYN, M.D., ST. JOSEPH MERCY 

HOSPITAL ANN ARBOR, d/b/a TRINITY 

HEALTH-MICHIGAN, ROBERT 

DOMEIER, D.O., and EMERGENCY 

PHYSICIANS MEDICAL GROUP, P.C., 

 Defendants, 

and 

KRISTYN H. MURRY, M.D., and HURON 

VALLEY RADIOLOGY, P.C., 

 Defendants-Appellees. 

CORRIGAN, J. (concurring in part and dissenting in part). 

 I agree with the majority and the Court of Appeals that plaintiff’s notice of 

intent (NOI) was sufficient as to defendant Dr. Kristyn Murry. I respectfully 

dissent, however, from the majority’s holding that defendant Huron Valley 

Radiology, P.C. (Huron) was entitled to a NOI. Instead, I concur with and join 

part I of Justice Young’s partial concurrence and partial dissent with regard to 

whether plaintiff was required to serve defendant Huron with a NOI to commence 

a medical malpractice action under MCL 600.2912b. I fully agree with Justice 
2

Young that Huron is neither a “health professional” nor a “health facility” entitled 

to notice under MCL 600.2912b. Whether the Legislature, by oversight or design, 

excluded professional corporations such as Huron from the statutory definition of 

“health facility or agency” in MCL 333.20106(1), it is for the Legislature, and not 

this Court, to decide. 

Because Huron was not entitled to an NOI, plaintiff was not entitled to 

tolling. I share Justice Markman’s concerns as discussed in part IIIC of his partial 

concurrence and partial dissent regarding Justice Young’s analysis of the tolling 

issue. Specifically, I disagree that as long as a NOI is sufficient as to one 

defendant, the statute of limitations is tolled as to all defendants. I agree with 

Justice Markman’s conclusion that plaintiff’s complaint here was untimely filed. 

Accordingly, I would hold that the action against Huron was barred by the statute 

of limitations. Moreover, I also concur with part IIID of Justice Markman’s 

opinion concerning whether plaintiff can retroactively amend an NOI. 

Additionally, I dissent from the majority’s holding that plaintiff’s NOI as to 

Huron was sufficient. As an initial matter, I would not reach the sufficiency of the 

notice issue at all for the reasons set forth in part IIIE of Justice Markman’s partial 

concurrence and dissent, with which I fully concur and join. I also concur with 

Justice Markman’s discussion of this issue, post at 4 n 1. Because the Court’s 

limited grant order did not instruct the parties to brief this issue and because both 
3

the litigants and the public should be able to rely on our orders, I would not 

resolve issues in this Queen of Hearts fashion.1

Maura D. Corrigan 

 1

 See Lewis Carroll, Alice’s Adventures In Wonderland (New York: Signet 

Classic, 2000), ch 12, p 115 (“‘No, no!’ said the Queen. ‘Sentence first—verdict 

afterwards.’”). 
S T A T E O F M I C H I G A N 

SUPREME COURT 

BRIAN POTTER, 

 Plaintiff-Appellant, 

v No. 136336 

 

RICHARD C. McLEARY, M.D., GARY 

AUGUSTYN, M.D., ST. JOSEPH MERCY 

HOSPITAL ANN ARBOR, d/b/a TRINITY 

HEALTH-MICHIGAN, ROBERT 

DOMEIER, D.O., and EMERGENCY 

PHYSICIANS MEDICAL GROUP, P.C., 

 Defendants, 

and 

KRISTYN H. MURRY, M.D., and HURON 

VALLEY RADIOLOGY, P.C., 

 Defendants-Appellees. 

YOUNG, J. (concurring in part and dissenting in part). 

 I concur only in the result of the majority opinion, which holds that 

defendant, Huron Valley Radiology, P.C. (Huron), is not entitled to dismissal. 

 I respectfully dissent from the majority’s holding that a plaintiff is required 

to serve a professional corporation not enumerated in MCL 333.20106(1) with a 

notice of intent to commence a medical malpractice action (NOI) under MCL 

600.2912b (“the NOI statute”). Such a defendant is neither a “health professional” 
2

nor a “health facility” under the NOI statute; thus, a plaintiff is not required to give 

that defendant written notice under the NOI statute before commencing a medical 

malpractice action. I would additionally hold that plaintiff’s claim against 

defendant Huron was tolled pursuant to MCL 600.5856(d) because plaintiff 

provided an NOI in compliance with the NOI statute for “a claim” that would have 

been barred during the applicable notice period. 

I further dissent from the majority’s analysis whether plaintiff’s NOI was 

deficient. The NOI statute requires that the plaintiff provide a statement of “[t]he 

factual basis for the claim.”1

 A necessary factual predicate for a vicarious liability 

claim is that there is an employer-employee (or other principal-agent) relationship, 

but such a statement of defendant Huron’s relationship to the other individual 

defendants is not found in plaintiff’s NOI; thus, plaintiff’s NOI is defective. 

As the majority opinion itself demonstrates, it is swiftly becoming 

increasingly acceptable for this Court to avoid attempting a precise or meaningful 

statutory analysis in favor of imprecise vagaries and broad pronouncements. Such 

analyses are favored only by those who seek a particular result and cannot find an 

explicable justification for it. The majority’s analysis threatens to render the 

statutory notice procedure nugatory and undermines, if not overrules, this Court’s 

 1

 MCL 600.2912b(4)(a). 
3

precedent.2

 I believe that this Court’s decisions should be grounded in precise and 

rigorous analysis of the relevant statutory text and that this Court should avoid 

creating “inconsistencies among its cases and . . . reduce confusion in [the Court’s] 

jurisprudence by overruling conflicting decisions.”3

Accordingly, I would reverse the Court of Appeals and hold that defendant 

is not entitled to dismissal due to plaintiff’s defective NOI. 

I. Plaintiff Was Not Required to Serve Defendant Huron, A Professional 

Corporation, With An NOI. 

 The Court of Appeals held that plaintiff served defendant Huron, a 

professional corporation, with a defective NOI and that entitled Huron to 

dismissal. However, only a “health professional” and “health facility” are entitled 

to notice under the NOI statute, MCL 600.2912b.4

 Thus, a threshold issue is 

whether defendant Huron is a “health professional” or “health facility.” If not, the 

 2

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

NW2d 711 (2004) (Roberts II). 

3 Devillers v Auto Club Ins Ass’n, 473 Mich 562, 571 n 19; 702 NW2d 539 

(2005). 

4

 MCL 600.2912b(1) provides: 

Except as otherwise provided in this section, 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. [Emphasis 

added.] 
4

defect in plaintiff’s NOI is rendered moot and does not entitle defendant to 

dismissal. 

 Because plaintiff has persuasively argued in this Court that defendant 

Huron is neither a “health professional” nor a “health facility” entitled to notice 

under the NOI statute, I would hold that plaintiff’s defective NOI as to defendant 

Huron was inconsequential.5

 5

 The NOI statute only applies to medical malpractice actions. This is 

clearly a medical malpractice action, but not for the reasons stated by the majority. 

Huron is subject to medical malpractice liability because a principal sued for the 

medical malpractice of its agent is sued in medical malpractice. 

The first step when determining whether a plaintiff has alleged medical 

malpractice is to consider “whether [the claim] is being brought against someone 

who, or an entity that, is capable of malpractice.” Bryant v Oakpointe Villa 

Nursing Centre, Inc, 471 Mich 411, 420; 684 NW2d 864 (2004). This Court has 

consistently explained that the accrual statute, MCL 600.5838a, does not define, 

but rather, expands who may be sued for medical malpractice. Bryant, supra at 

420-421; Kuznar v Raksha Corp, 481 Mich 169, 177; 750 NW2d 121 (2008). 

Here, plaintiff raises a claim of vicarious liability, not direct liability, against 

defendant Huron. See Cox v Flint Bd of Hosp Managers, 467 Mich 1, 11; 651 

NW2d 356 (2002). 

Michigan courts have consistently recognized actions against a principal in 

medical malpractice under a vicarious liability theory when the principal was not 

identified in the accrual statute but the agent was subject to medical malpractice 

liability. See, e.g., Francisco v Parchment Med Clinic, PC, 407 Mich 325; 285 

NW2d 39 (1979) (vicarious liability action against a professional corporation for 

medical malpractice of a general practitioner and surgeon before the amendment 

of MCL 600.5838a adding “professional corporation” in 1994, 1993 PA 78); 

Becker v Meyer Rexall Drug Co, 141 Mich App 481; 367 NW2d 424 (1985) 

(vicarious liability action against a pharmacy, which is not identified in that 

accrual statute, Kuznar, supra, for medical malpractice of a pharmacist); Simmons 

v Apex Drug Stores, Inc, 201 Mich App 250; 506 NW2d 562 (1993) (same). 

Conversely, this Court has held that vicarious liability claims against 

corporate entities were stated in ordinary negligence because the agent could not 

be liable in medical malpractice. See Kambas v St Joseph’s Mercy Hosp of 
5

 This Court has previously defined the term “health facility” in the NOI 

statute through reference to the Public Health Code (PHC),6

 which defines “health 

facility or agency” as: 

 

Detroit, 389 Mich 249, 256; 205 NW2d 431 (1979) which was decided when the 

accrual statute did not refer to a “licensed health facility or agency” or otherwise 

include a hospital, and held that “The defendant hospital’s liability, being herein 

predicated upon the theory of respondeat superior, and having determined that 

nurses are not subject to the two year malpractice statute of limitations, we 

conclude that the three year statute of limitations is applicable to injuries arising 

from the negligent act of a nurse and is equally applicable to defendant employer 

hospital herein”; Kuznar, supra at 172 (holding that because the employee could 

not be liable in medical malpractice, “vicarious liability for [the employee’s 

alleged negligence] by the pharmacy [which is not referenced in § 5838a(1)] may 

also proceed under the three-year statute of limitations for ordinary negligence”). 

Thus, when the principal is not identified in the accrual statute, a vicarious liability 

claim is not automatically an ordinary negligence claim. Rather, the nature of the 

claim depends on whether the agent is sued in medical malpractice. 

The nature of the claim against the agent defines the vicarious liability 

claim. If the agent is sued in medical malpractice, the vicarious liability claim 

against the principal is in medical malpractice. This does not make the principal a 

“licensed health care professional.” MCL 600.5838a(1)(b). It makes the principal 

liable for the acts of a “licensed health care professional.” 

 Here, defendant Huron’s agents, defendants Dr. Kristyn Murry and Dr. 

Richard McLeary, are radiologists subject to medical malpractice liability. There 

is no dispute that plaintiff’s claim sounds in medical malpractice. See Bryant, 

supra at 422; ante at 15 n 23. Accordingly, plaintiff’s vicarious liability claim 

against defendant Huron is a medical malpractice claim. 

6

 See Omelenchuk v City of Warren, 461 Mich 567, 571 n 11; 609 NW2d 

177 (2000). See also Bates v Gilbert, 479 Mich 451, 459; 736 NW2d 566 (2007) 

(using the definition of “health profession” in the PHC to define that term in MCL 

600.2169—expert testimony in medical malpractice actions). 

In Omelenchuk, the plaintiffs’ decedent suffered a heart attack and the 

plaintiff sued the defendant city and fire department alleging medical malpractice. 

At issue was whether the plaintiffs’ complaint was timely filed in accordance with 

the various notice periods in the NOI statute. A threshold issue was whether the 
6

(a) An ambulance operation, aircraft transport operation, 

nontransport prehospital life support operation, or medical first 

response service. 

(b) A clinical laboratory. 

(c) A county medical care facility. 

(d) A freestanding surgical outpatient facility. 

(e) A health maintenance organization. 

(f) A home for the aged. 

(g) A hospital. 

(h) A nursing home. 

(i) A hospice. 

(j) A hospice residence. 

(k) A facility or agency listed in subdivisions (a) to (h) 

located in a university, college, or other educational institution.[7] 

Several of the health facilities listed could be incorporated as professional 

corporations. Significantly, however, defendant Huron, although a professional 

corporation, is not a listed health facility. Thus, defendant Huron is not a “health 

facility.” 

 

NOI statute applied to the plaintiffs’ claims against the defendants. This Court 

held that the NOI statute applied because the PHC “defines ‘[h]ealth facility’ to 

include an ‘ambulance operation’ . . . . [and t]he city of Warren has an ambulance 

operation.” Omelenchuk, supra at 571 n 11. 

7

 MCL 333.20106(1). 
7

 The PHC does not define “health professional.” “Professional,” however, 

is commonly defined as “a member of a profession, esp. one of the learned 

professions.”8

 The PHC defines “health profession” as “a vocation, calling, 

occupation, or employment performed by an individual acting pursuant to a 

license or registration issued under this article.”9

 Thus, only an “individual” can 

practice a “health profession.” Because the PHC defines “individual” as “a natural 

person,”10 only a natural person can be a “health professional,” and defendant 

Huron is therefore not a “health professional.” 

 Instead of applying these interpretations consistent with our precedent, the 

majority relies on the definition of “licensed health care professional” in the 

accrual statute, MCL 600.5838a:11 “an individual licensed or registered under 

 8 Random House Webster’s College Dictionary (1997). See MCL 8.3a 

(“All words and phrases shall be construed and understood according to the 

common and approved usage of the language . . . .”). 

9

 MCL 333.16105(2) (emphasis added). 

10 MCL 333.1105(1). See MCL 333.16101(2), which provides that the 

definitions in MCL 333.1101 et seq. are applicable to MCL 333.16105(2). 

11 MCL 600.5838a, in pertinent part, provides: 

(1) For purposes of this act, a claim based on the 

medical malpractice of a person or entity who is or who holds 

himself or herself out to be a licensed health care 

professional, licensed health facility or agency, or an 

employee or agent of a licensed health facility or agency who 

is engaging in or otherwise assisting in medical care and 

treatment, whether or not the licensed health care 

professional, licensed health facility or agency, or their 

employee or agent is engaged in the practice of the health 
8

article 15 of the public health code . . . and engaged in the practice of his or her

health profession in a sole proprietorship, partnership, professional corporation, or 

other business entity.”12 As stated, a professional corporation is not an 

“individual.” 

 Interestingly, the majority simply disregards this Court’s very recent 

interpretation of the definition of “licensed health care professional” in the accrual 

statute. In Kuznar, the defendant pharmacy sought the benefit of the shortened 

period of limitations for medical malpractice and argued that it was subject to 

 

profession in a sole proprietorship, partnership, professional 

corporation, or other business entity, accrues at the time of 

the act or omission that is the basis for the claim of medical 

malpractice, regardless of the time the plaintiff discovers or 

otherwise has knowledge of the claim. As used in this 

subsection: 

(a) “Licensed health facility or agency” means a health 

facility or agency licensed under article 17 of the public 

health code, Act No. 368 of the Public Acts of 1978, being 

sections 333.20101 to 333.22260 of the Michigan Compiled 

Laws. 

(b) “Licensed health care professional” means an 

individual licensed or registered under article 15 of the public 

health code, Act No. 368 of the Public Acts of 1978, being 

sections 333.16101 to 333.18838 of the Michigan Compiled 

Laws, and engaged in the practice of his or her health 

profession in a sole proprietorship, partnership, professional 

corporation, or other business entity. However, licensed 

health care professional does not include a sanitarian or a 

veterinarian. 

12 MCL 600.5838a(1)(b). 
9

medical malpractice liability because it was a “licensed health care professional” 

under the accrual statute. Just last year, we unanimously rejected that argument 

and explained that “[t]he flaw in defendant’s position is that the Public Health 

Code defines ‘individual’ to mean ‘a natural person.’”13 The majority’s argument 

here suffers the same flaw that we unanimously rejected. A professional 

corporation is not “a natural person.” Furthermore, a professional corporation is 

not “licensed or registered under article 15 of the public health code.” The 

majority cannot acknowledge the existence of Kuznar without overruling it or 

changing its rationale here. It has therefore chosen to ignore Kuznar. 

The majority’s analysis is superficial. The majority merely announces that 

it discovered the term “professional corporation” in a related statute and, therefore, 

a professional corporation is entitled to notice. In serious statutory construction, 

context matters and so does grammar. 

 In the accrual statute, “licensed health care professional” is defined by 

modifying the subject, “an individual,” with the clause “engaged in the practice of 

his or her health profession in a sole proprietorship, partnership, professional 

corporation, or other business entity.” Thus, instead of providing that a 

professional corporation is a “licensed health care professional,” the statute 

provides that practice of a health profession in a professional corporation is simply 

 13 Kuznar, supra at 179, quoting MCL 333.1105(1). 
10

one way for “an individual” to meet the requirements to be a “licensed health care 

professional.” 

The context of subsection (1) of the accrual statute also betrays the 

majority’s position. It provides, in pertinent part, that 

a claim based on the medical malpractice of a person . . . who is . . . 

a licensed health care professional, . . . whether or not the licensed 

health care professional . . . is engaged in the practice of the health 

profession in a sole proprietorship, partnership, professional 

corporation, or other business entity, accrues at the time of the act or 

omission that is the basis for the claim of medical malpractice . . . . 

[MCL 600.5838a(1).] 

 

Thus, the reference to a professional corporation makes clear that practice in a 

professional corporation does not affect when a medical malpractice claim 

accrues. 

Moreover, the majority’s interpretation is repudiated by the rule of statutory 

interpretation that prohibits rendering statutory terms surplusage or nugatory.14 

The majority proclaims that “[f]or all practical purposes, the PC and the health 

care provider are treated as the same entity when professional services are 

involved.”15 This pronouncement is designed to ignore reality and the actual text 

of the statute. 

 14 See Odom v Wayne Co, 482 Mich 459, 471; 760 NW2d 217 (2008), 

citing Herald Co, Inc v Eastern Michigan Univ Bd of Regents, 475 Mich 463, 470; 

719 NW2d 19 (2006). 

15 Ante at 12. 
11

To arrive at its conclusion that a professional corporation is included in the 

NOI statute, the majority conflates common-law principles with its obligation to 

accurately construe this statute. It therefore emphasizes the unremarkable 

proposition of common-law vicarious liability that a corporation can only act 

through its officers and agents,16 but ignores the equally unremarkable proposition 

that a corporation is a distinct legal entity.17 The flaw in this analysis is that it 

imports common-law theories of liability to defeat the statutory enumeration of 

covered entities that does not include a professional corporation.18 The 

Legislature is free to include and exclude any entity from the statutory notice 

procedure that it desires. By importing extra-textual theories of liability into this 

statutory procedural requirement, the majority deprives the Legislature of that 

option and renders surplusage portions of the statute the Legislature enacted. 

 16 See Mossman v Millenbach Motor Sales, 284 Mich 562, 568; 280 NW 50 

(1938), citing Garey v Kelvinator Corp, 279 Mich 174, 191; 271 NW 723 (1937). 

17 See Bourne v Sanford, 327 Mich 175, 191; 41 NW2d 515 (1950) (“[A 

corporation] is an artificial entity separate and distinct from the holders of its 

individual stock.”), citing Trustees of Dartmouth College v Woodward, 17 US (4 

Wheat) 518; 4 L Ed 629 (1819); Wells v Firestone Tire & Rubber Co, 421 Mich 

641, 650; 364 NW2d 670 (1984) (“We recognize the general principle that in 

Michigan separate entities will be respected.”). 

18 Justice Markman makes the same error. See post at 8. Furthermore, my 

analysis is neither inconsistent with Kuznar and the tolling statute nor internally 

inconsistent. See post at 8 n 5. I emphasize that liability and procedure are 

distinct matters. Here, Huron’s liability is provided by common law. See note 6 

of this opinion. The pertinent procedure is provided by statute. 
12

As stated, the majority holds that a professional corporation is a “health 

professional” because the term “professional corporation” appears in the accrual 

statute definition of “licensed health care provider.” That definition, however, 

also includes any “other business entity.” By the majority’s logic, any “other 

business entity” is a “health professional.” If that were true, then the terms “health 

facility” in the NOI statute and “licensed health facility or agency” in the accrual 

statute would be needless surplusage. For example, a hospital is listed in the PHC 

definition used to define “health facility” and “licensed health care facility or 

agency.”19 A hospital may be incorporated and, as such, is an “other business 

entity.” Thus, under the majority’s analysis, a hospital is, “for all practical 

purposes,” a “licensed health care professional.” The same is true for all other 

entities listed in the PHC definition of “licensed health facility or agency.”20 

Because it renders the term “health facility” in the NOI statute needless 

surplusage, the majority’s interpretation is erroneous. 

 Because a defendant Huron is neither a “health facility” nor a “health 

professional,” I would hold that plaintiff was not required to serve it with an NOI 

 19 See MCL 333.20106(1)(g); Omelenchuk, supra at 571 n 11; Kuznar, 

supra at 177-179. 

20 See MCL 333.20106(1). 
13

before commencing a medical malpractice action against it.21 Thus, plaintiff’s 

claim against defendant Huron was not subject to dismissal for a defective NOI. 

II. The Statute of Limitations For Plaintiff’s Claim Against Defendant Huron Was 

Tolled Under MCL 600.5856(d). 

 This Court ordered supplemental briefing on “whether, if a defendant 

professional corporation is not an entity to whom notice is required to be provided 

under MCL 600.2912b, the applicable statute of limitations, MCL 600.5805(6), 

was nonetheless subject to statutory tolling provided in former MCL 

600.5856(d).”22 If the statute of limitations was not tolled under former subsection 

(d) of the tolling statute, MCL 600.5856, then plaintiff’s claim against defendant 

Huron was filed after the period of limitations expired and defendant Huron would 

be entitled to dismissal with prejudice. I am persuaded that the statute of 

limitations for plaintiff’s claim against Huron was tolled under former subsection 

(d). 

 21 Justice Markman contends that my analysis is inconsistent with Roberts I

and Roberts II. Post at 9 n 5. Justice Markman is certainly aware that no matter 

how thoughtful the opinion, we are, as a practical matter, incapable of resolving 

every potential issue that could conceivably arise in a case. Neither the parties nor 

this Court raised the issue whether the professional corporation there was required 

to receive an NOI in Roberts I or Roberts II. I prefer to base my analysis on issues 

that we did address rather than consider inferences from issues that we did not and 

were not asked to address. 

22 483 Mich 922 (2009). 
14

 The tolling statute applicable here provided:23

The statutes of limitations or repose are tolled: 

(a) At the time the complaint is filed and a copy of the 

summons and complaint are served on the defendant. 

(b) At the time jurisdiction over the defendant is otherwise 

acquired. 

(c) At the time the complaint is filed and a copy of the 

summons and complaint in good faith are placed in the hands of an 

officer for immediate service, but in this case the statute is not tolled 

longer than 90 days after the copy of the summons and complaint is 

received by the officer. 

(d) If, during the applicable notice period under section 

2912b, a claim would be barred by the statute of limitations or 

repose, for not longer than a number of days equal to the number of 

days in the applicable notice period after the date notice is given in 

compliance with section 2912b. [Emphasis added.] 

 Plaintiff argues that because subsection (d) uses the indefinite article “a”, 

not the definite article “the”, it is not claim specific and, therefore, tolls all claims 

in the complaint. Defendant argues that tolling only applies for “a claim” to which 

“the applicable notice period under section 2912b” applies. 

 I believe that the dispositive question is “what is being tolled?” The first 

sentence of the tolling statute states that “[t]he statutes of limitations or repose are

tolled.” The plural form suggests that more than one statute of limitations can be 

tolled by each subsection, including subsection (d). 

 23 The tolling statute was amended by 2004 PA 87, effective April 22, 

2004. 
15

 By their nature, each of the other tolling provisions, § 5856(a) through (c), 

apply to all claims in a complaint, not just individual claims. Thus, the plural form 

in the prefatory clause is consistent with those provisions because they could 

involve multiple statutes of limitations. 

 Based on the prefatory provision, there is a strong textual argument that 

under subsection (d), “[t]he statutes of limitations . . . are tolled” for all claims in a 

complaint when “during the applicable notice period under section 2912b, a claim

would be barred by the statute of limitations or repose.” Thus, for example, in a 

complaint alleging a malpractice claim and a negligence claim, if the requirements 

of subsection (d) are met, the “statutes of limitations . . . are tolled” for both 

claims. I believe that this is the superior textual argument. 

 Although the prefatory clause does not specify which statutes of limitations 

are tolled, there is no textual basis for restricting tolling to a single claim.24 

Subsection (d) only requires “a claim” to be barred during the notice period and 

 24 Justice Markman misconstrues my analysis. I do not suggest that more 

than one statute of limitations is always tolled. Post at 20. Certainly, if there is 

only one claim, then only one statute of limitations is tolled. Nor do I suggest that 

“all claims against all defendants in Michigan” are tolled by a single sufficient 

NOI as to a single defendant. Post at 23 n 16. Hyperbole aside, I believe that 

there is simply no textual basis for treating subsection (d) of the tolling statute 

different than subsection (a) through (c) of the tolling statute. The Legislature is 

perfectly capable of providing such a basis for distinction; see my discussion of 

subsection (c) of the tolling statute as amended by 2004 PA 87 below. 
16

notice to be given in compliance with the NOI statute; the prefatory clause 

provides that multiple statutes are tolled as a result.25

 I note that the current tolling provision is more precise on this issue. MCL 

600.5856(c) provides: 

The statutes of limitations or repose are tolled in any of the 

following circumstances: 

* * * 

(c) At the time notice is given in compliance with the 

applicable notice period under section 2912b, if during that period a 

claim would be barred by the statute of limitations or repose; but in 

this case, the statute is tolled not longer than the number of days 

 25 I agree with Justice Markman that “the notice of intent must contain all 

of the statements required by § 2912b(4) as to ‘each particular [defendant] named 

in the notice.’” Post at 21, quoting Roberts II, supra at 692. Because a plaintiff is 

statutorily prohibited from commencing a medical malpractice action without first 

giving the notice required under the NOI statute, dismissal is appropriate when a 

plaintiff fails to give such notice. See MCL 600.2912b(1); Burton v Reed City 

Hosp Corp, 471 Mich 745, 753; 691 NW2d 424 (2005) (holding that “dismissal is 

an appropriate remedy for noncompliance with the notice provisions” of the NOI 

statute). Thus, contrary to Justice Markman’s concern that my analysis would 

deprive defendants the notice that the statutory procedure is designed to provide, 

post at 24-25, a plaintiff’s failure to provide a defendant with a sufficient NOI still 

entitles that defendant to dismissal, tolling notwithstanding. 

Justice Markman suggests that I create a “trap for unwary plaintiffs.” Post 

at 19. Admittedly, a plaintiff will be unable to re-file some claims—specifically, 

those for which an NOI is required. However, as I discussed above, a professional 

corporation that is not a “health facility” is not entitled to notice; thus, a defective 

NOI is inconsequential for such a defendant. Moreover, if that claim is dismissed, 

tolling afforded by subsection (d) of the tolling statute is not rendered moot 

because the plaintiff will not need to wait the notice period to re-file his complaint. 

It is for this reason that my interpretation does not create an irreconcilable conflict 

with MCL 600.2912b(6). 
17

equal to the number of days remaining in the applicable notice 

period after the date notice is given. [Emphasis added.] 

As indicated by the highlighted text, the significant distinction between current 

subsection (c) and former subsection (d) is that the current provision restates what 

is tolled (“the statute”), which specifies that tolling is limited to only one statute 

while the former provision remained unlimited by the prefatory clause (“The 

statutes”). Thus, current subsection (c) is expressly claim specific and only tolls 

“the statute” for the previously referenced claim that would be barred.26

 Here, plaintiff’s NOI was sufficient as to co-defendant Murry.27 Subsection 

(d) applied to plaintiff’s claim against Murry because the period of limitations 

 26 Justice Markman correctly states that under my analysis of who must 

receive an NOI and my interpretation of current subsection (c) of the tolling 

statute, “the plaintiff would have to file his medical malpractice action against the 

professional corporation before he filed a medical malpractice action against the 

physician, if the period of limitations would have expired within 182 days after the 

plaintiff served his notice of intent on the physician.” Post at 22 n 12. Although 

this procedure seems unusual, we are without authority to question the wisdom of 

the Legislature and “fix” perceived problems. See State Tax Law Cases, 54 Mich 

350, 360; 20 NW 493 (1884) (“[W]e have no supervisory power in respect to 

legislation; . . . the law-making power is not responsible to the judiciary for the 

wisdom of its acts, and . . . , however unwise or impolitic their acts may appear, 

they must stand as law unless the legislature has plainly overstepped its 

constitutional authority . . . .”). Moreover, a plaintiff is not prohibited from 

bringing an action against the principal without naming the agent, Krolik v Curry, 

148 Mich 214, 223; 111 NW 761 (1907); Al-Shimmari v Detroit Med Ctr, 477 

Mich 280, 294; 731 NW2d 29 (2007); 3 Am Jur 2d, Agency, § 333, p 699, and I 

fully expect that such actions would be consolidated, see MCR 2.505(A)(2), if the 

action against the agent proceeds after the notice procedure. 

27 See Potter v McLeary (On Remand), 278 Mich App 279; 748 NW2d 599 

(2008). 
18

would have expired during the notice period if the statute of limitations was not 

tolled. Thus, “notice [was] given in compliance with section 2912b” for “a claim” 

that “would [have been] barred by the statute of limitations,” so “[t]he statutes of 

limitations . . . [were] tolled.” Accordingly, I would reverse the Court of Appeals 

and hold that defendant Huron was not entitled to dismissal. 

III. Plaintiff’s NOI Was Deficient. 

 I join part III(E) of Justice Markman’s dissent28 regarding the majority’s 

decision to address and resolve an issue that the parties were specifically directed 

not to address. The majority has deprived the parties of an opportunity to brief 

and argue the merits of the sufficiency of plaintiff’s NOI. As such, the majority’s 

action suggests that parties should follow our grant orders at their peril. No 

serious court should function in this fashion. 

 Although not properly before this Court nor pertinent to my analysis, I 

address the majority’s analysis that plaintiff’s NOI was not deficient because it 

will likely affect how lower courts evaluate an NOI. I believe that plaintiff’s NOI 

was deficient and the majority’s analysis is no more than a shallow gloss over the 

statutory text. 

 As stated, a plaintiff must serve an NOI before commencing a medical 

malpractice action against a health facility or health professional.29 In subsection 

 28 Specifically, post at 28-30 and nn 22 & 23. I also join post at 4 n 1. 

29 MCL 600.2912b(1). 
19

(4) of the NOI statute, the Legislature has enumerated six specific topics that the 

plaintiff must address in his NOI: 

The notice given to a health professional or health facility 

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

following: 

(a) The factual basis for the claim. 

(b) The applicable standard of practice or care alleged by the 

claimant. 

(c) The manner in which it is claimed that the applicable 

standard of practice or care was breached by the health professional 

or health facility. 

(d) The alleged action that should have been taken to achieve 

compliance with the alleged standard of practice or care. 

(e) 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. 

(f) The names of all health professionals and health facilities 

the claimant is notifying under this section in relation to the claim. 

“Subsections 2912b(1) and (4) clearly place the burden of complying with the 

notice of intent requirements on the plaintiff.”30

 In Roberts II, this Court established the standard for whether an NOI 

complied with the statutory requirements of subsection (4) of the NOI statute: “the 

claimant is required to make good-faith averments that provide details that are 

responsive to the information sought by the statute and that are as particularized 

 30 Roberts I, supra at 66. 
20

as is consistent with the early stages of the proceedings.”31 An NOI that does not 

meet this standard is deficient. 

 Subsection (a) requires the plaintiff to provide a statement of “[t]he factual 

basis for the claim.” Here, plaintiff has alleged that defendant Huron is 

vicariously liable for the acts of its agent, defendants Murry, Dr. Richard D. 

McLeary, and Dr. Gary Augustyn. Thus, “the claim” is vicarious liability. An 

essential factual predicate for plaintiff’s vicarious liability claim is that the 

individual defendants were defendant Huron’s employees. Nowhere in the notice 

does plaintiff suggest that any employer-employee (or other principal-agent 

relationship) existed between the defendants.32 Because plaintiff omitted “[t]he 

factual basis for the claim,” he failed to meet the Roberts II standard and, 

therefore, the NOI is deficient. 

 The majority holds that there is “no language in [subsection (4) of the NOI 

statute] that requires a claimant to set forth the nature of the relationship between 

the parties to be sued.”33 To support its conclusion, the majority states that no 

 31 Roberts II, supra at 701. 

32 As this Court stated in Roberts II, “the claimant is not required to craft 

her notice with omniscience.” Id. at 691. All that was required of plaintiff was a 

good-faith averment of the relationship that served as the factual basis for his 

vicarious liability claim, Roberts II, supra at 701; the claimant was not required to 

know the precise employment relationship between the defendants. See ante at 22 

n 29. 

33 Ante at 22. 
21

such requirement is found in subsection (f).34 That is true, but no more sufficient 

than stating that no such requirement is found in subsection (e). The majority 

offers no discussion of subsection (a)—“The factual basis for the claim”—and 

why a principal-agent relationship is not part of the factual basis of plaintiff’s 

vicarious liability claim. The majority proclaims that it is not “necessary to plead 

facts supporting vicarious liability.”35 As stated, here, “the claim” is vicarious 

liability. Thus, the majority has proudly announced that it is not necessary to state 

the factual basis for the claim.36 This is most likely a relief to plaintiffs and a 

shock to the Legislature and anyone who has read the NOI statute since it was 

 34 Ante at 22. 

35 Ante at 23 n 30. I do not contend that the plaintiff must “state the phrase 

‘vicarious liability.’” Ante at 23 n 30. That is a legal theory. Rather, plaintiff 

must state “[t]he factual basis for the claim.” MCL 600.2912b(4)(a). 

36 The majority asserts that subsection (4) of the NOI statute does not 

require a plaintiff to state facts supporting a vicarious liability claim because the 

majority has managed to conjure up a way that the Legislature “could have” 

phrased subsection (4) of the NOI statute. Ante at 23 n 30. The Legislature is not 

required to place the judiciary in checkmate when enacting its policy choices. 

Rather, it is our obligation to “to discern and give effect to the intent of the 

Legislature . . . by examining the language of the statute itself [because the] words 

of a statute provide ‘the most reliable evidence of its intent . . . .’” Sun Valley 

Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999), quoting United 

States v Turkette, 452 US 576, 593; 101 S Ct 2524; 69 L Ed 2d 246 (1981). The 

majority offers no discussion of the meaning of the words actually enacted in 

subsection (a). Nor does the majority state why an agent-principal relationship is 

not part of “[t]he factual basis” for plaintiff’s vicarious liability claim. The 

majority reaches its desired result using this faulty analysis and does so mindless 

of the consequences of its rule by fiat. 
22

enacted. The majority cannot square its analysis with the text of the relevant 

statute, so it does not attempt such folly. 

The majority buttresses its conclusion with its assessment of defendant 

Huron’s subjective knowledge: “Certainly they are fully aware of the legal 

relationship between them.”37 The majority’s reliance on the knowledge of this

defendant is not a relevant assessment of what the Legislature has required a 

plaintiff to provide in its NOI. 

 This Court previously rejected such a construction of subsection (4) of the 

NOI statute for an obvious reason: it would render the statutory notice procedure 

completely nugatory.38 The NOI statute, in plain and unambiguous terms, places 

the burden on the plaintiff to provide “written notice under this section”39 that 

“contain[s] a statement”40 of six specific topics. Thus, the Legislature has not 

required that the defendant “fill in the blanks.” Undeterred, the majority replaces 

the legislative standards with its own requirement and creates a slippery slope in 

which the plaintiff complies with the NOI statute by simply declaring “I went to 

 37 Ante at 22. 

38 See Roberts II, supra at 696 n 14. 

39 See MCL 600.2912b(1), which provides 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.” 

40 MCL 600.2912b(4). 
23

the doctor and something bad happened.”41 Under the majority’s analysis, the 

burden is on the defendant to fill in the remainder of the missing but required NOI 

information. 

The majority fails to comprehend the significance of its decision. Our 

decisions do not resolve only the case before us, but rather, all cases subsequently 

filed in Michigan raising similar issues; we are obligated to ensure that all cases 

are resolved in a manner that is consistent with the text of the applicable statute.42

Consider, for example, a corporate defendant that never employed or worked with 

any of the other individual defendants listed—one that is named in the NOI 

through mistake or error. How does an NOI that fails to allege any relationship 

between the corporate defendant and the individual defendants inform that 

defendant of the factual basis for the claim against it? The majority’s analysis 

threatens to deprive a named defendant of the notice that the statutory procedure is 

designed to provide. 

 The justification that a particular defendant might have knowledge about 

data the plaintiff is statutorily obligated to supply is just a fancy way for the 

 41 Roberts II, supra at 697 n 15. 

42 See Cameron v Auto Club Ins Ass’n, 476 Mich 55, 66; 718 NW2d 784 

(2006), citing Marbury v Madison, 5 US (1 Cranch) 137, 177; 2 L Ed 60 (1803) 

for the fundamental proposition that “ours is to declare what the law is, not what it 

ought to be.” 
24

majority to subvert a statute it does not like. At the very least, the majority is not 

pretending any longer to enforce the plain language of the NOI statute. 

The majority’s lack of concern for the implications of its discussion is 

illustrated by its treatment of Roberts II. The majority purports to leave for 

another day the question whether Roberts II was correctly decided.43 

 43 Ante at 25 n 32. It is quickly becoming a new favored practice of the 

majority to flag decisions of the past decade and invite challenges to those 

decisions. See Bush v Shabahang, 484 Mich ___, ___; ___ NW2d ___ (2009), 

decided July 29, 2009 (Docket Nos. 136617, 136653, and 136983), slip op at 19 n 

34. It is difficult to reconcile this practice with the majority’s previous claims of 

fidelity to stare decisis. See, e.g., People v Gardner, 482 Mich 41, 87; 753 NW2d 

78 (2008) (Kelly, J., dissenting) (“Our decision about whether an earlier case must 

be overruled should be guided by more than a notion that the case was incorrectly 

decided.”); Pohutski v City of Allen Park, 465 Mich 675, 712; 614 NW2d 219 

(2002) (Kelly, J., dissenting) (“[I]f each successive Court, believing its reading is 

correct and past readings wrong, rejects precedent, then the law will fluctuate from 

year to year, rendering our jurisprudence dangerously unstable.”); Devillers, supra

at 620 (Weaver, J., dissenting) (“Under the doctrine of stare decisis, it is necessary 

to follow earlier judicial decisions when the same points arise again in 

litigation.”); Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 278; 731 NW2d 

41 (2007) (Cavanagh, J., dissenting) (“Under the doctrine of stare decisis, 

principles of law deliberately examined and decided by a court of competent 

jurisdiction become precedent and should not be lightly departed. Absent the 

rarest circumstances, we should remain faithful to established precedent.”); People 

v Hawkins, 468 Mich 488, 517-518; 668 NW2d 602 (2003) (Cavanagh, J., 

dissenting) (“We have overruled precedents when the intervening developments of 

the law has ‘removed or weakened the conceptual underpinnings from the prior 

decision, or where the later law has rendered the decision irreconcilable with 

competing legal doctrines or policies.’ Absent 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; 109 S Ct 2363; 105 L Ed 2d 132 (1989). See also Todd 

C. Berg, Esq., Hathaway Attacks, Michigan Lawyers Weekly, October 27, 2008, 

in which Justice Hathaway was quoted: “I believe in stare decisis. Something 

must be drastically wrong for the court to overrule”; Lawyers’ Election Guide: 

Judge Diane Marie Hathaway, Michigan Lawyers Weekly, October 30, 2006, in 
25

Nevertheless, it states that “the issue is whether [Huron] could reasonably be held 

to comprehend the nature of the claims being asserted against it.”44 That standard 

is distinctly not the Roberts II standard set out above. Indeed, that standard is 

similar to the standard articulated by the dissent in Roberts II: “The statement 

simply must provide notice of a potential claim sufficient to allow potential 

defendants to ascertain the basis for the claim and enter into settlement 

discussions.”45 Once again, such a view is inconsistent with the statutory text. 

This continues a disturbing trend in which the majority 

overrules by indirection, or at least leaves the impression that it is 

doing so, thereby sowing the seeds of confusion and making it 

difficult for the citizens of this state to comprehend precisely what 

our caselaw requires. This appears to be an unfortunate return to our 

predecessors’ past practice of “frequently pa[ying] little attention to 

the inconsistencies among its cases and declin[ing] to reduce 

confusion in [the Court’s] jurisprudence by overruling conflicting 

decisions.”[46] 

IV. Conclusion 

 I do not believe that defendant Huron is a “health professional” or “health 

facility” entitled to notice under the NOI statute and, therefore, plaintiff was not 

 

which Justice Hathaway, then running for a position on the Court of Appeals, was 

quoted: “Too many appellate decisions are being decided by judicial activists who 

are overturning precedent.” 

44 Ante at 26. 

45 Roberts II, supra at 713-714 (Kelly, J., dissenting). 

46 Beasley v Michigan, 483 Mich 1025, 1030 (2009) (Corrigan, J., 

dissenting), quoting Devillers, supra at 571 n 19. 
26

required to serve defendant Huron with an NOI. I also believe that plaintiff’s 

claim against defendant Huron was tolled pursuant to subsection (d) of the tolling 

statute. Accordingly, I would reverse the Court of Appeals and hold that 

defendant Huron is not entitled to dismissal because of plaintiff’s defective NOI. 

Robert P. Young, Jr. 
S T A T E O F M I C H I G A N 

SUPREME COURT 

BRIAN POTTER, 

 Plaintiff-Appellant, 

v No. 136336 

RICHARD C. McLEARY, M.D., GARY 

AUGUSTYN, M.D., ST. JOSEPH MERCY 

HOSPITAL ANN ARBOR, d/b/a TRINITY 

HEALTH-MICHIGAN, ROBERT 

DOMEIER, D.O., and EMERGENCY 

PHYSICIANS MEDICAL GROUP, P.C., 

 Defendants, 

and 

KRISTYN H. MURRY, M.D. and HURON 

VALLEY RADIOLOGY, P.C., 

 Defendants-Appellees. 

____________________________________ 

MARKMAN, J. (concurring in part and dissenting in part). 

 I agree with the majority that plaintiff’s notice of intent was sufficient with 

regard to defendant Kristyn Murry and that defendant Huron Valley Radiology, 

P.C. (HVR) was entitled to a notice of intent. However, I disagree that the notice 

of intent was sufficient with regard to HVR. The notice of intent did not contain a 

statement of “[t]he applicable standard of practice or care alleged by the claimant” 

with regard to HVR, as is required by MCL 600.2912b(4)(b). As this Court 
2

explained in Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 693-

694; 684 NW2d 711 (2004) (Roberts II), a notice of intent must include a 

“particularized standard for each of the professionals and facilities named in the 

notices,” which necessarily must indicate “whether plaintiff [is] alleging that [the] 

defendants were vicariously or directly liable to [the plaintiff].” Because the 

notice of intent here did not include such a statement, it was clearly defective with 

regard to HVR. 

 We held in Roberts v Mecosta Co Gen Hosp, 466 Mich 57; 642 NW2d 663 

(2002) (Roberts I), that a defective notice of intent does not toll the statute of 

limitations. Because the period of limitations in a medical malpractice action is 

two years, MCL 600.5805(6), and because the alleged malpractice in this case 

occurred on June 7, 2001 and the complaint was not filed until November 4, 2003, 

the complaint was untimely filed, and thus the action against HVR is barred by the 

statute of limitations. I would affirm the portions of the Court of Appeals opinion 

that held that the notice of intent was sufficient as to defendant Murry and 

insufficient as to defendant HVR, but reverse the portions of that opinion that held 

that the defective notice of intent tolled the statute of limitations and, thus, that a 

dismissal without prejudice was appropriate. The action against HVR should be 

dismissed with prejudice. 

I. FACTS AND HISTORY 

 The alleged medical malpractice occurred on June 7, 2001. Plaintiff alleges 

that Murry, a radiologist working for HVR, “failed to properly interpret and report 
3

back the true and correct results of the MRI . . . .” He further alleges “[t]hat as a 

result of the . . . delay in surgical [intervention, he] has suffered permanent 

neurologic injury and deficit.” On May 30, 2003, just eight days before the 

expiration of the two-year period of limitations, plaintiff served defendants Murry 

and HVR with a notice of intent to file suit. On November 4, 2003, plaintiff filed 

his medical malpractice complaint against defendants. 

 The trial court denied defendants’ motion for summary disposition. The 

Court of Appeals reversed, concluding that because plaintiff’s affidavits of merit 

were defective, the complaint had to be dismissed with prejudice. Potter v 

McLeary, 274 Mich App 222; 732 NW2d 600 (2007). This Court reversed “the 

portion of the judgment of the Court of Appeals dismissing the complaint with

prejudice, because the dismissal should have been without prejudice as to the 

affidavit of merit issue.” Potter v McLeary, 480 Mich 915 (2007) (emphasis in the 

original). We remanded to the Court of Appeals for consideration of defendants’ 

remaining issues. On remand, the Court of Appeals held that plaintiff’s notice of 

intent was sufficient as to defendant Murry, but insufficient as to defendant HVR. 

However, the Court of Appeals held that the defective notice of intent tolled the 

statute of limitations, and thus dismissed without prejudice as to HVR. Potter v 

McLeary, 278 Mich App 279; 748 NW2d 599 (2008). 

 In Docket No. 136336, plaintiff appealed the portion of the Court of 

Appeals decision that held that the notice of intent was defective as to HVR, and 

in Docket Nos. 136338 and 136339, defendants appealed the portion of the Court 
4

of Appeals decision that held that the defective notice of intent tolled the statute of 

limitations, and, thus, that a dismissal without prejudice was appropriate, and the 

portion that held that the notice of intent was sufficient as to defendant Murry. In 

Docket No. 136336, we granted plaintiff’s application “limited to the issue 

whether defendant Huron Valley Radiology, P.C., is a ‘health facility or agency’ 

to which a plaintiff is required to provide notice under MCL 600.2912b(1).” 482 

Mich 1004 (2008). In Docket Nos. 136338 and 136339, we held defendants’ 

application for leave to appeal in abeyance pending the decision in Docket No. 

136336. 756 NW2d 85 (2008).1

 Subsequently, in Docket No. 136336, we 

 1

 Despite this abeyance, and despite the fact that the parties have not been 

given an opportunity to brief or argue the issues raised in defendants’ application 

for leave to appeal (Docket Nos. 136338 and 136339), or even, given this Court’s 

limited grant order, the issue raised in plaintiff’s application for leave to appeal 

(the sufficiency of the notice of intent as to HVR), the majority addresses the issue 

raised in plaintiff’s application and one of the issues raised in defendants’ 

application (the sufficiency of the notice of intent as to Murry), and then 

announces that it is now denying defendants’ application. Only because the 

majority addresses these issues in its opinion today do I also address these. 

Contrary to the majority’s contention, ante at 8, neither one of the parties argued 

the sufficiency of the notice of intent in their briefs filed after this Court granted 

plaintiff’s application limited to a different issue, and only the plaintiff briefly 

raised the sufficiency issue at oral arguments; defendant did not say anything at all 

regarding the issue (which was to be expected given that this Court had not 

granted leave on that issue). The majority contends that “[d]efendant [HVR] 

addressed the sufficiency of the NOI issue extensively in its brief on appeal.” 

Ante at 8 n 8. However, page one of defendant’s brief states, “This brief concerns 

the singular issue of whether Appellee, HVR, is entitled to pre-suit notice pursuant 

to MCL 600.2912b(1).” The only mention thereafter regarding the sufficiency 

issue is in the “procedural history” section in which defendant describes its bases 

for its motion for summary disposition. There is no discussion of the sufficiency 

issue in defendant’s “Argument” section of its brief. Finally, contrary to the 

majority’s contention, ante at 9 n 8, defendant’s prayer for relief does not “ask[] us 
5

directed the parties to file supplemental briefs addressing “whether, if a defendant 

professional corporation is not an entity to whom notice is required to be provided 

under MCL 600.2912b, the applicable statute of limitations, MCL 600.5805(6), 

was nonetheless subject to statutory tolling provided in former MCL 

600.5856(d).” 483 Mich 922 (2009). 

II. STANDARD OF REVIEW 

 “Questions of statutory interpretation are questions of law that this Court 

reviews de novo.” People v Swafford, 483 Mich 1, 7; 762 NW2d 902 (2009). A 

trial court’s determination regarding a motion for summary disposition is also 

reviewed de novo. Odom v Wayne Co, 482 Mich 459, 466; 760 NW2d 217 

(2008). 

III. ANALYSIS 

A. Notice of Intent 

 I agree with the majority that HVR was entitled to a notice of intent. The 

majority concludes that HVR was entitled to a notice of intent because “the action 

is one sounding in medical malpractice.” Ante at 3. Although I agree that the 

action here is “one sounding in medical malpractice,” this is only the first step in 

the analysis to determine whether a notice of intent was required. 

 MCL 600.2912b(1) provides: 

 

to decide the remaining issues in plaintiff’s application for leave to appeal.” 

Instead, defendant expressly states that “Plaintiff-Appellant’s Application For 

Leave To Appeal should be denied.” 
6

 Except as otherwise provided in this section, 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. 

Because § 2912b(1) only applies to an “action alleging medical malpractice,” the 

majority is correct that “the first step in the analysis” is to determine whether the 

action is one “alleging medical malpractice.” Ante at 14. It is undisputed that the 

action at issue here is such an action, because it “allege[s] an action that (1) 

occurred within the course of a professional relationship and (2) poses questions of 

medical judgment outside the realm of common knowledge and experience.” 

Kuznar v Raksha Corp, 481 Mich 169, 176-177; 750 NW2d 121 (2008), citing 

Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 422; 684 NW2d 864 

(2004).2

 However, despite the majority’s initial recognition that whether this action 

is one “alleging medical malpractice” is only the “first step in the analysis” in 

determining whether a notice of intent was required, ante at 14, the majority does 

not address the second step. Rather, it concludes that “[b]ecause § 2912b(1) 

clearly requires a claimant to provide a timely NOI before commencing a medical 

 2

 In the instant case, the services provided were unquestionably professional 

services rendered by a licensed health care professional, i.e., a radiologist, and 

thus the claims at issue here allege an action that occurred in the course of a 

professional relationship. I agree with Justice Young that HVR is “subject to 

medical malpractice liability because a principal sued for the medical malpractice 

of its agent is sued in medical malpractice.” Ante at 4 n 5. 
7

malpractice action, plaintiff was required to provide this PC with a timely NOI.” 

Ante at 20. However, § 2912b(1) requires a notice of intent only if: (a) the action 

is one “alleging medical malpractice”; and (b) the defendant is a “health 

professional or health facility.” Despite this clear language, the majority does not 

address whether HVR is a “health professional or health facility.”3

 Nevertheless, I believe that HVR is a “health professional” for the purposes 

of § 2912b. I reach this conclusion on the basis that plaintiff is seeking to hold 

HVR vicariously liable for its employee’s alleged malpractice and such employee 

is unquestionably a “health professional.” In Cox v Flint Bd of Hosp Managers,

467 Mich 1, 11; 651 NW2d 356 (2002), this Court explained that under the 

principle of vicarious liability, “the principal ‘is only liable because the law 

creates a practical identity with his [agents] . . . .’” (Citation omitted.) 

Subsequently, in Nippa v Botsford Gen Hosp (On Remand), 257 Mich App 387, 

391-392; 668 NW2d 628 (2003), on remand from this Court for reconsideration in 

light of Cox, the Court of Appeals explained: 

 For all practical purposes the hospital stands in the shoes of 

its agents (the doctors). 

 3

 I agree with Justice Young, ante at 9, 12, that the majority errs in 

concluding that HVR is entitled to a notice of intent simply because the words 

“professional corporation” can be found in MCL 600.5838a. I also agree with 

him, ante at 6, that HVR is not a “health facility” because it is not a clinical 

laboratory, a hospital, a nursing home, or any other type of facility listed in MCL 

333.20106(1). 
8

 Thus, we opine that with regard to vicarious liability, 

medical-malpractice law applicable to a physician is also applicable 

to the physician’s hospital. . . . All procedural requirements are 

applicable to the hospital in the same manner and form as [they are 

to] the doctor . . . . This is so because the law creates a practical 

identity between a principal and an agent . . . . 

 . . . Vicarious liability imposes a legal fiction on defendant 

hospital providing that the principal is only liable because the law 

creates a practical identity with its agents . . . . The law treats the 

principal and the agent as sharing a single identity . . . .[4]

Because, with regard to vicarious liability, “[t]he law treats the principal and the 

agent as sharing a single identity,” and because, in the instant case, plaintiff is 

seeking to hold HVR vicariously liable for its employee’s alleged malpractice, and 

because such employee is unquestionably a “health professional” entitled to a 

notice of intent, the law treats HVR as also being a “health professional” entitled 

to a notice of intent.5

 Therefore, plaintiff was required to provide a notice of 

 4

 After the Court of Appeals rendered its decision on remand from this 

Court, this Court denied leave to appeal. 469 Mich 1005 (2004). 

5

 Justice Young concludes that the action against HVR is a medical 

malpractice action because plaintiff is seeking to hold HVR vicariously liable for 

the actions of one of its employees who is a health professional, but then 

overlooks vicarious liability in terms of determining whether HVR is entitled to a 

notice of intent. Because a medical malpractice action can only be brought against 

“‘a person or entity who is or who holds himself or herself out to be a licensed 

health care professional, licensed health facility or agency, or an employee or 

agent of a licensed health facility or agency’ who is engaging in or otherwise 

assisting in medical care and treatment,” Kuznar, 481 Mich at 177, quoting in part 

MCL 600.5838a(1), either Justice Young’s position is inconsistent with Kuznar 

and § 5838a(1) or it is internally inconsistent. That is, pursuant to Kuznar, Justice 

Young must determine that HVR is a “health professional” in order to conclude 

that this is a medical malpractice action; however, if he were to determine that 

HVR is a “health professional” for purposes of concluding that HVR can be sued 

for medical malpractice, he could not then also determine that HVR is not a 
9

intent to HVR before commencing a medical malpractice action in accordance 

with § 2912b. 

B. Sufficiency 

 As discussed above, § 2912b(1) provides, “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.” 

(Emphasis added.) MCL 600.2912b(4) provides: 

 The notice given to a health professional or health facility 

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

following: 

 

“health professional” for purposes of concluding that HVR is not entitled to a 

notice of intent. It simply cannot be both ways. If HVR is subject to a medical 

malpractice action on the basis of vicarious liability, HVR is entitled to a notice of 

intent on the basis of vicarious liability. Contrary to Justice Young’s contention, 

ante at 9, concluding that HVR is a “health professional” for purposes of § 2912b 

because plaintiff is seeking to hold HVR vicariously liable for the actions of one 

of its employees who is unquestionably a “health professional,” is not inconsistent 

with Kuznar’s conclusion that the defendant pharmacy in that case was not a 

“health professional” because in Kuznar the plaintiff was seeking to hold the 

pharmacy vicariously liable for the actions of one of its employees who was 

unquestionably not a “health professional.” That is, Kuznar did not involve the 

kind of case that we are dealing with here, in which the plaintiff is seeking to hold 

the defendant vicariously liable for the actions of its employee, who is

unquestionably a “health professional.” Indeed, Justice Young’s position is 

inconsistent with prior caselaw. See, for example, Roberts I, 466 Mich at 59, and 

Roberts II, 470 Mich at 693, in which this Court held (in thoughtful opinions 

authored by Justice Young) that because the plaintiff’s notice of intent was 

defective as to the professional corporation, the statute of limitations was not 

tolled. Why would it matter that the notice of intent was defective as to the 

professional corporation if a professional corporation is never entitled to a notice 

of intent in the first place? 
10

 (a) The factual basis for the claim. 

 (b) The applicable standard of practice or care alleged by the 

claimant. 

 (c) The manner in which it is claimed that the applicable 

standard of practice or care was breached by the health professional 

or health facility. 

 (d) The alleged action that should have been taken to achieve 

compliance with the alleged standard of practice or care. 

 (e) 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. 

 (f) The names of all health professionals and health facilities 

the claimant is notifying under this section in relation to the claim. 

[Emphasis added.] 

In Roberts II, 470 Mich at 700-701, this Court explained: 

 Under MCL 600.2912b(4), a medical malpractice claimant is 

required to provide potential defendants with notice that includes a 

“statement” of each of the statutorily enumerated categories of 

information. Although it is reasonable to expect that some of the 

particulars of the information supplied by the claimant will evolve as 

discovery and litigation proceed, the claimant is required to . . . 

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. . . . This is not an onerous task: all 

the claimant must do is specify what it is that she is claiming under 

each of the enumerated categories in § 2912b(4). Although there is 

no one method or format in which a claimant must set forth the 

required information, that information must, nevertheless, be 

specifically identified in an ascertainable manner within the notice. 

[Emphasis in the original.] 

In Roberts II, the plaintiff brought a medical malpractice action against a hospital, 

a professional corporation, an obstetrician, a physician’s assistant, and an 

emergency room physician. This Court held that the plaintiff must “aver the 
11

specific standard of care that she is claiming to be applicable to each particular 

professional or facility that is named in the notice.” Id. at 692 (emphasis in the 

original). Because the notice of intent “fail[ed] to indicate whether plaintiff was 

alleging that these defendants [the hospital and professional corporation] were 

vicariously or directly liable to her,” the plaintiff’s notice of intent failed to allege 

“a standard specifically applicable to the defendant facilities . . . .” Id. at 693. For 

this reason, Roberts II held that the notice of intent was insufficient as to the 

defendant hospital and the defendant professional corporation. 

 In the instant case, the Court of Appeals similarly held that the notice of 

intent was insufficient as to HVR because it did not state the applicable standard 

of practice or care as is required by § 2912b(4)(b).6

 I agree. The notice of intent 

completely fails to indicate what standard of practice or care plaintiff believes is 

applicable to defendant HVR, and it does not indicate whether plaintiff is alleging 

that defendant HVR is directly or vicariously liable to him. Indeed, as the Court 

of Appeals held, “The standard of care completely fails to make any reference to 

 6

 Defendant Murry argues that the notice of intent does not satisfy the 

requirements set forth in § 2912b(4)(b)-(d). Although I agree with the majority 

that the notice of intent is sufficient as to defendant Murry, I cannot say that I 

agree with the majority’s analysis because it provides none. In my judgment, the 

notice of intent does satisfy § 2912b(4)(b) because it states, “The standard of care 

required Dr.[] Murry . . . to correctly read, interpret and report the correct results 

to the emergency room under the circumstances.” In addition, the notice of intent 

does satisfy § 2912b(4)(c) and (d) because it states that defendant Murry “failed to 

properly interpret the MRI images and convey accurate information to the 

emergency room physicians in charge of the patient that night.” 
12

defendant Huron Valley Radiology.” Potter, 278 Mich App at 284. In fact, the 

notice of intent as a whole only references HVR twice: once on the first page 

where it lists the health care professionals and entities to whom the notice of intent 

is intended to apply, and then again on the last page, where it lists the health care 

professionals and entities being notified of the action. Because the notice of intent 

does not contain a statement indicating what standard of practice or care is 

allegedly applicable to HVR, as is required by § 2912b(4)(b), I agree with the 

Court of Appeals that the notice of intent is insufficient as to defendant HVR. 

 Although the majority “question[s] whether Roberts II was correctly 

decided,” ante at 25 n 32,7

 it does not expressly overrule Roberts II because it 

concludes that this decision is not “dispositive.” It is not dispositive, says the 

majority, because “Roberts II opined that because there was confusion with regard 

to whether the claim was for direct or vicarious liability, the PC was unable to 

understand the nature of the claims being asserted,” but, “[i]n the case before us, 

 7

 Specifically, the majority “question[s] whether Roberts II was correctly 

decided because it adds a requirement not found in the language of the statute; 

namely, that statements be ‘particularized.’” Ante at 25 n 32. Despite the fact 

then that § 2912b(1) clearly requires a notice of intent to be sent to each defendant, 

and § 2912b(4) clearly requires the notice of intent to contain certain statements, 

the majority apparently would prefer to conclude that the notice of intent is not 

required to contain each of these statements as to each defendant. For example, 

the majority apparently would hold that if a plaintiff sues both a nurse and a 

physician for their own direct malpractice, as long as the notice of intent contains 

the required “applicable standard of practice or care statement” as to the nurse, the 

notice would be sufficient as to the physician as well. Fortunately, the majority 

leaves this issue for another day, one that hopefully will not arrive soon. 
13

no such potential for confusion exists . . . .” Ante at 25 n 33. First, that is not what 

Roberts II held; rather, it held, 470 Mich at 693, 702, that because the plaintiff’s 

notice of intent did not include a statement “indicat[ing] whether plaintiff was 

alleging that these defendants were vicariously or directly liable to her,” “plaintiff 

did not fulfill her obligation under § 2912b . . . .” Second, as with Roberts II, a 

“potential for confusion,” ante at 25 n 32, does exist here because HVR could be 

sued on the basis of either direct or vicarious liability, or both, and the notice of 

intent does not indicate on which basis plaintiff intended to sue HVR. 

 Furthermore, that Roberts II involved a situation in which the notice of 

intent may have implied that the plaintiff was seeking to hold the defendants 

directly liable, while the complaint implied that the plaintiff was seeking to hold 

the defendants vicariously liable, whereas in the instant case nothing can be 

implied from plaintiff’s notice of intent regarding direct or vicarious liability, 

while the complaint seeks to hold HVR vicariously liable, is a distinction utterly 

without any significance in this case. The issue here is whether the notice of intent

was sufficient as to HVR. Being a professional corporation, HVR could be sued 

on the basis of either direct liability or vicarious liability. See Cox, 467 Mich at 

11, stating that “[a] hospital may be 1) directly liable for malpractice, through 

claims of negligence in supervision of staff physicians as well as selection and 

retention of medical staff, or 2) vicariously liable for the negligence of its agents.” 

MCL 600.2912b(4)(b) requires the notice of intent to contain a statement of “[t]he 

applicable standard of practice or care alleged by the claimant.” Obviously, the 
14

“applicable standard of practice or care” would depend on whether the claimant is 

suing the professional corporation on the basis of direct liability or vicarious 

liability. Accordingly, a notice of intent must indicate whether the claimant is 

suing the professional corporation on the basis of direct liability, vicarious 

liability, or both. 

 The majority holds that “when vicarious liability is the only claim 

asserted,” it is unnecessary to “specifically set forth the legal theory of vicarious 

liability within the NOI.” Ante at 23. However, if the notice of intent does not 

indicate that the plaintiff is planning on suing the defendant professional 

corporation on the basis of vicarious liability, how will the defendant know that 

“vicarious liability is the only claim asserted”? The majority fails to recognize 

that the whole point of the exercise of a notice of intent is to apprise the defendant 

of the claims that the plaintiff plans to bring before a complaint is filed. Here, 

because the notice of intent was silent on the subject, HVR did not know until 

plaintiff filed his complaint that plaintiff was suing on the basis of vicarious 

liability. That is, HVR did not know what “standard of practice or care” plaintiff 

was alleging that HVR breached until plaintiff filed his complaint against HVR. 

This is most clearly a violation of § 2912b(4)(b).8

 

 8

 The majority concludes that HVR’s claim that plaintiff’s notice of intent 

was defective because it did not indicate whether plaintiff was planning on suing 

HVR on the basis of direct or vicarious liability is “troubling” because HVR 

“openly admits knowing and understanding that it is vicariously liable for the 

actions of its employee, Dr. Murry.” Ante at 24. What I find to be “troubling” 
15

 The majority misunderstands the issue. Contrary to its contention, ante at 

26, the issue is not whether HVR “could reasonably be held to comprehend the 

nature of the claims being asserted against it.” Instead, as Justice Young explains, 

ante at 19, the issue is whether the notice of intent “provide[s] details that are 

responsive to the information sought by the statute . . . .” Roberts II, 470 Mich at 

701 (emphasis in the original). More specifically, the issue here is whether the 

notice of intent contains a statement of “[t]he applicable standard of practice or 

care alleged by the claimant,” as is required by § 2912b(4)(b). Boodt v Borgess 

Med Ctr, 481 Mich 558, 560-561; 751 NW2d 44 (2008) (“Although the instant 

notice of intent may conceivably have apprised [defendant] of the nature and 

gravamen of plaintiff’s allegations, this is not the statutory standard; § 2912b(4)[b] 

requires something more.”). Because the notice of intent at issue here did not 

contain a statement of the “applicable standard of practice or care” with regard to 

HVR, the notice of intent did not comply with § 2912b(4)(b).9

 

instead is that the majority ignores the significant distinction between (a) knowing 

and understanding that a professional corporation may be held vicariously liable 

for the actions of its employees; and (b) knowing and understanding that someone 

is planning on bringing a cause of action against the professional corporation to 

hold that corporation vicariously liable for the actions of its employees. The 

majority erroneously equates knowledge of potential liability with knowledge of 

an imminent lawsuit. 

9

 Although neither the parties nor the lower courts addressed this issue, the 

majority concludes that § 2912b does not “require[] a claimant to set forth the 

nature of the relationship between the parties to be sued.” Ante at 22. While I 

agree with the majority, ante at 22 n 28, that the notice need not allege the “precise 

nature of the relationship,” i.e., whether there is an “actual employment 
16

C. Tolling 

 The period of limitations in medical malpractice cases is two years. MCL 

600.5805(6). At the time the complaint was filed in this case, MCL 600.5856, in 

pertinent part, provided: 

 The statutes of limitations or repose are tolled: 

* * * 

 (d) If, during the applicable notice period under section 

2912b, a claim would be barred by the statute of limitations or 

repose, for not longer than a number of days equal to the number of 

days in the applicable notice period after the date notice is given in 

compliance with section 2912b. [Emphasis added.][10]

 

relationship with the PC or . . . a complex independent contractor arrangement,” 

the majority fails to recognize that § 2912b(4)(a) does require the notice of intent 

to contain a statement of the “factual basis for the claim.” In this case, plaintiff 

sued multiple physicians, multiple professional corporations, and a hospital. Yet, 

plaintiff’s notice of intent nowhere includes a “factual basis for the claim” against 

HVR. That is, the notice of intent does not even indicate that the reason that HVR 

is being sued is because HVR is where Murry was working at during the time of 

the alleged malpractice. Because § 2912b(4)(a) requires the notice of intent to 

include the “factual basis for the claim,” and the notice of intent at issue here did 

not include the fact that Murry was working at HVR at the time of the alleged 

malpractice, which, indeed, is one of the most important facts in a case in which 

the claim is based on vicarious liability, I also agree with Justice Young, ante at 

20, that plaintiff’s notice of intent fails to satisfy § 2912b(4)(a). Contrary to the 

majority, ante at 23 n 29, summarily naming “Huron Valley Radiology PC as well 

as the three individual physicians and ‘their employees or agents, actual or 

ostensible, thereof’” in the notice of intent does not indicate what the “factual 

basis for the claim” is. Because I believe that the notice of intent does not satisfy 

the requirements set forth in § 2912b(4)(a) and (b), there is no need to address 

whether the notice of intent satisfies the other requirements of § 2912b(4), and the 

only reason that I even address § 2912b(4)(a) is to respond to the majority’s 

incorrect conclusion that § 2912b(4) does not “require[] a claimant to set forth the 

nature of the relationship between the parties to be sued.” Ante at 22.

10 The Legislature has since amended § 5856. However, because plaintiff’s 

complaint was filed (on November 4, 2003) before the effective date of this 
17

In Roberts I, 466 Mich at 59, this Court held that “the statute of limitations cannot 

be tolled under MCL 600.5856(d) unless notice is given in compliance with all the 

provisions of MCL 600.2912b.”11 As Roberts I, 466 Mich at 64, explained, 

“Section 5856(d) clearly provides that notice must be compliant with § 

2912b . . . .” “As a result, the tolling of the statute of limitations is available to a 

plaintiff only if all the requirements included in § 2912b are met.” Section 

2912b(4) states that the notice of intent “shall contain a statement of at least all of 

the following . . . .” (Emphasis added.) The term “shall” “denote[s] a mandatory, 

rather than discretionary action.” Roberts I, 466 Mich at 65. The term “all” 

exemplifies that each and every one of the statements required by § 2912b(4)(a) 

through (f) must be contained in the notice of intent. Therefore, only a notice of 

intent that is “in compliance with section 2912b” tolls the statute of limitations and 

a notice of intent must contain all of the statements required by § 2912b(a) through 

(f) in order to be “in compliance with section 2912b.” 

 

amendment (April 22, 2004), it has no effect on the instant case. See 2004 PA 87, 

enacting section 1(1) (“this amendatory act applies to civil actions filed on or after 

the effective date of this amendatory act”). For a discussion of the amended 

version of § 5856, see Bush v Shabahang, 484 Mich ___; ___ NW2d ___ (2009) 

(Markman, J., dissenting), decided July 29, 2009 (Docket Nos. 136617, 136653, 

and 136983).

11 This portion of Roberts I was decided unanimously with even the 

dissenting justices agreeing that “to begin the tolling of the . . . statute of 

limitations, a plaintiff must fully comply with the requirements of MCL 

600.2912b. Compliance with the delivery provision of the notice statute alone is 

insufficient.” Roberts I, 466 Mich at 72 (Kelly, J., dissenting). 
18

 Because, as discussed earlier, the notice of intent in this case does not 

contain the statements required by § 2912b(4)(a) and (b) with regard to HVR, it is 

not “in compliance with section 2912b.” Because the notice of intent is not “in 

compliance with section 2912b,” the notice of intent does not toll the statute of 

limitations. And because the period of limitations in a medical malpractice action 

is two years, MCL 600.5805(6), and the alleged malpractice in this case occurred 

on June 7, 2001, and the complaint was not filed until November 4, 2003, the 

complaint was untimely filed, and the action against HVR is barred by the statute 

of limitations. Therefore, the action against HVR should be dismissed with 

prejudice. 

 The Court of Appeals relied on Kirkaldy v Rim, 478 Mich 581; 734 NW2d 

201 (2007), to support its conclusion that a defective notice of intent tolls the 

statute of limitations, and thus a dismissal without prejudice is appropriate. 

However, this case is significantly distinguishable from Kirkaldy. In Kirkaldy,

478 Mich at 586, this Court held that the filing of a complaint and a defective 

affidavit of merit tolls the statute of limitations until the affidavit of merit is 

successfully challenged. This is so because nothing in MCL 600.5856(a), which 

provides for tolling upon the filing of a complaint,12 or MCL 600.2912d, which 

 12 The amended version of MCL 600.5856 provides, in pertinent part: 

The statutes of limitations or repose are tolled in any of the 

following circumstances: 
19

requires an affidavit of merit to be filed with a complaint,13 limits tolling to an 

affidavit that is in compliance with § 2912d. However, § 5856(d) does limit 

tolling to a notice of intent that is “in compliance with section 2912b.” Therefore, 

while the filing of a complaint and a defective affidavit of merit may toll the 

statute of limitations, the serving of a defective notice of intent does not. 

 Justice Young contends that the statute of limitations was tolled with regard 

to HVR because, although the notice of intent was insufficient as to HVR, it was 

sufficient as to defendant Murry. That is, he concludes that as long as a notice of 

intent is sufficient as to one of the defendants, the statute of limitations is tolled as 

to all of the defendants. I respectfully disagree. 

 As discussed above, § 5856 provided at the time of the filing of the 

complaint, in pertinent part: 

 The statutes of limitations or repose are tolled: 

 

(a) At the time the complaint is filed, if a copy of the 

summons and complaint are served on the defendant within the time 

set forth in the supreme court rules. 

13 MCL 600.2912d(1) provides, in pertinent part: 

[T]he plaintiff in an action alleging medical malpractice or, if 

the plaintiff is represented by an attorney, the plaintiff's attorney 

shall file with the complaint an affidavit of merit signed by a health 

professional who the plaintiff's attorney reasonably believes meets 

the requirements for an expert witness under [MCL 600.2169]. The 

affidavit of merit shall certify that the health professional has 

reviewed the notice and all medical records supplied to him or her 

by the plaintiff's attorney concerning the allegations contained in the 

notice and shall contain a statement of each of the following . . . . 
20

* * * 

 

 (d) If during the applicable notice period under section

2912b, a claim would be barred by the statute of limitations or 

repose, for not longer than a number of days equal to the number of 

days in the applicable notice period after the date notice is given in 

compliance with section 2912b. [Emphasis added.] 

Justice Young is correct that § 5856 does indicate that “more than one statute of 

limitations can be tolled . . . .” Ante at 14. For example, if multiple defendants 

receive a notice of intent that is sufficient as to all of them, all of their statutes of 

limitations are tolled. However, this does not mean that “more than one statute of 

limitations” is always tolled. Obviously, if there is only one defendant, only one 

statute of limitations would be tolled, and such a conclusion is not contrary to the 

reference in § 5856 to the “statutes of limitations.” See MCL 8.3b, which 

provides that “every word importing the plural number may be applied and limited 

to the singular number.” Similarly, concluding that a notice of intent only tolls the 

statute of limitations that applies to the defendant who has actually received a 

sufficient notice of intent, but not the statute of limitations that applies to the 

defendant who has not received such a notice, is also not inconsistent with the 

reference in § 5856 to the “statutes of limitations.” Further, such a conclusion is 

required by the reference in § 5856(d) to “the applicable notice period under 

section 2912b,” and “the applicable notice period after the date notice is given in 

compliance with section 2912b,” because there is no “applicable notice period 

under section 2912b,” if the notice of intent is not “in compliance with section 

2912b.” 
21

 As discussed earlier, § 2912b states, in pertinent part: 

 (1) Except as otherwise provided in this section, 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. 

* * * 

 (4) The notice given to a health professional or health facility 

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

following . . . . 

Accordingly, as this Court held in Roberts I, 466 Mich at 64, a notice of intent 

only tolls the statute of limitations if the notice contains all the statements required 

by § 2912b(4). In addition, as this Court held in Roberts II, 470 Mich at 692, the 

notice of intent must contain all of the statements required by § 2912b(4) as to 

“each particular [defendant] named in the notice.” (Emphasis added.) That is, the 

notice of intent only tolls the statute of limitations as to each particular defendant 

if the notice contains all the statements required by § 2912b(4) as to each 

particular defendant. Thus, if a notice of intent contains all the required 

statements as to the defendant physician, but does not contain all the required 

statements as to the defendant professional corporation, the statute of limitations 

would only be tolled as to the defendant physician because a notice “in 

compliance with section 2912b” has not been served on the defendant professional 

corporation and thus there is no “applicable notice period” as to the defendant 

professional corporation. 
22

 Contrary to Justice Young’s contention, § 5856(d)’s reference to “a claim” 

does not alter the outcome.14 The language “a claim” must be read in context. To 

which “claim” is § 5856(d) referring? When § 5856(d) is read in its entirety, it is 

clear that the “claim” to which it is referring is the “claim” that “would be barred 

by the statute of limitations” “during the applicable notice period under section 

2912b.” However, “a claim” would not be “barred by the statute of limitations” 

“during the applicable notice period under section 2912b” where a sufficient 

notice of intent had not yet been served upon the defendant. Where a sufficient 

notice of intent had not yet been served upon the defendant, there would be no 

“applicable notice period under section 2912b” and, thus, there would be no claim 

 14 Although Justice Young relies on the language “a claim,” this same 

language is found in the amended version of § 5856, and yet he recognizes that, 

under the amended version, the notice of intent has to be sufficient as to all the 

defendants in order to toll all their statutes of limitations. See ante at 15-17. In 

light of his view that a professional corporation that is not a “health facility” is not 

entitled to a notice of intent, combined with his view that the amended version of 

§ 5856 only tolls the statute of limitations if the defendant has received a sufficient 

notice of intent, Justice Young apparently would conclude that a notice of intent 

that is sufficient as to the defendant physician would toll the statute of limitations 

as to the defendant physician, but would not toll the statute of limitations as to the 

defendant professional corporation. Under this view, a plaintiff would have to 

serve the defendant physician with a notice of intent and wait 182 days to file suit 

against the defendant physician, but the plaintiff would have to go ahead and file 

suit against the defendant professional corporation before the period of limitations 

expired as to that corporation since the corporation would not be entitled to notice 

of intent tolling. Therefore, the plaintiff would have to file his medical 

malpractice action against the professional corporation before he filed a medical 

malpractice action against the physician, if the period of limitations would have 

expired within 182 days after the plaintiff served his notice of intent on the 

physician. 
23

that would be “barred by the statute of limitations” “during the applicable notice 

period.”15 Because I believe that “a claim” in § 5856(d) is referring to “a claim” 

that would be “barred by the statute of limitations” “during the applicable notice 

period,” and the claim against HVR would not have been “barred by the statute of 

limitations” “during the applicable notice period” (because there was no 

“applicable notice period”), I conclude that the statute of limitations was not tolled 

as to plaintiff’s claim against HVR.16 

 Moreover, under Justice Young’s analysis, although HVR is not even 

entitled to a notice of intent because it is a professional corporation, he would hold 

that under § 5856(d) a notice of intent that does not comply with § 2912b tolls the 

statute of limitations applicable to HVR. That is, he concludes that, although 

HVR is not entitled to a notice of intent, plaintiff still gets the benefit of notice of 

 15 For further discussion of this point, see my dissenting opinion in Bush,

supra at 10. 

16 Justice Young concludes that “there is no textual basis for restricting 

tolling to a single claim.” Ante at 15. However, under his interpretation, there 

would also seem to be no basis to limit tolling to only those claims relating to the 

plaintiff’s medical malpractice action. In other words, the statutes of limitations 

for all claims against all defendants in Michigan would seem to be tolled as long 

as one plaintiff files a proper notice of intent with one defendant. This could 

hardly have been the intent of the Legislature. Contrary to Justice Young’s 

contention, ante at 15 n 24, there is a “textual basis for treating subsection (d) of 

the tolling statute different than subsection (a) through (c) of the tolling statute.” 

That is, as discussed above, subsection (d), unlike subsections (a) through (c), 

limits tolling to “a claim [that] would be barred by the statute of limitations” 

“during the applicable notice period” if it were not for the “notice [that] is given in 

compliance with section 2912b.”
24

intent tolling. This conclusion, in which the defendant is denied the benefit of a 

notice of intent, and yet the plaintiff is afforded the benefit of an extended period 

of limitations, is illogical and inconsistent with the statute.17 The whole reason for 

providing a plaintiff with notice of intent tolling is to compensate for the fact that 

he or she must file a notice of intent 182 days before filing a complaint. If, 

however, a plaintiff does not have to file a notice of intent and then wait 182 days 

before filing a complaint, why should the plaintiff be afforded 182 more days in 

which to file the complaint? 

 Justice Young observes that the “majority’s analysis threatens to render the 

statutory notice procedure nugatory and undermines, if not overrules, this Court’s 

precedent,” ante at 2-3, and that it “threatens to deprive a named defendant of the 

notice that the statutory procedure is designed to provide,” ante at 23. Although I 

agree with these observations, I believe that the same possibly can be said of 

Justice Young’s own analysis.18 He concludes that a notice of intent that is 

 17 For the same reason that a notice of intent that does not comply with § 

2912b does not toll the statute of limitations, a notice of intent that is not required 

by § 2912b does not toll the statute of limitations. That is, if a plaintiff serves a 

defendant with a notice of intent that is not required by § 2912b, notice is not 

“given in compliance with section 2912b,” the plaintiff does not have to wait 182 

days to file his or her complaint, i.e., there is no “applicable notice period under 

section 2912b,” and thus notice of intent tolling under § 5856(d) is not applicable. 

18 The saving grace of Justice Young’s analysis with regard to tolling is that 

it apparently would only apply to the former version of § 5856 that is at issue, not 

to the amended version that is applicable to all actions filed after April 22, 2004. 

See ante at 16-17. 
25

sufficient as to one defendant tolls the statute of limitations for all the defendants, 

regardless of how defective the notice of intent is as to these other defendants or 

whether these other defendants were even entitled to a notice of intent in the first 

place. That is, although § 2912b(4) and Roberts II clearly require the plaintiff to 

provide all defendants with a notice of intent that is sufficient as to each, and 

although § 5856(d) and Roberts I clearly limit tolling to notices that are “given in 

compliance with section 2912b,” Justice Young concludes that a notice of intent 

that is clearly not “in compliance with section 2912b” as to multiple defendants 

nevertheless tolls the statute of limitations as to these defendants as long as at least 

one defendant is given a notice of intent that is “in compliance with section 

2912b.” How are other defendants to receive the “notice that the statutory 

procedure is designed to provide”?19 

 19 Justice Young contends that “a plaintiff’s failure to provide a defendant 

with a sufficient NOI still entitles that defendant to dismissal, tolling 

notwithstanding.” Ante at 16 n 25. However, this interpretation would seem to 

create a trap for unwary plaintiffs because MCL 600.2912b(6) prohibits the 

“tacking or addition of successive 182-day periods . . . .” As this Court explained 

in Mayberry v Gen Orthopedics, PC, 474 Mich 1, 3; 704 NW2d 69 (2005), 

“Section 2912b(6) prohibits a plaintiff from giving presuit notice to a defendant 

multiple times in order to initiate multiple tolling periods that repeatedly extend 

the period of limitations.” Accordingly, if a notice that was filed within 182 days 

before the period of limitations would have expired and that is sufficient as to the 

defendant physician but defective as to the defendant hospital tolls the statute of 

limitations as to both, and § 2912b requires dismissal as to the hospital (as a result 

of the defective notice), the plaintiff’s next notice sent to the hospital would not 

toll the statute of limitations (as a result of § 2912b(6)), and thus the plaintiff’s 

action against the hospital would then be barred by the statute of limitations (since 

there would be no way for the plaintiff to file a sufficient notice and then wait 182 

days to file suit against the hospital without the benefit of another 182-day tolling 
26

D. Retroactive Amendments 

 Although the majority does not address this issue because it concludes that 

the notice of intent is sufficient, in Bush v Shabahang, 484 Mich ___ n 45; ___ 

NW2d ___ (2009), decided July 29, 2009 (Docket Nos. 136617, 136653, and 

136983), the majority concludes that, pursuant to MCL 600.2301, a plaintiff can 

simply amend a defective notice of intent and such amendment will “relate back to 

the time that the original NOI was mailed” or the courts alternatively can simply 

“disregard any error or defect” in the notice of intent. I respectfully disagree. See 

Bush, 484 Mich at ___, slip op at 12-13. 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 

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. [Emphasis 

added.] 

 

period). That is, what Justice Young gives with one hand (defective notice tolls), 

he takes away with the other hand (defective notice requires dismissal and plaintiff 

cannot refile). Assuming that Justice Young’s response to this conundrum is that 

the original complaint tolls the statute of limitations applicable to the hospital, 

under § 5856(a) (although the complaint has been dismissed against the hospital), 

he would then create a situation in which a plaintiff would have absolutely no 

incentive to file a notice that complies with § 2912b as to the hospital or any other 

defendant as long as he files a notice that complies with § 2912b as to one 

defendant, because the statute of limitations would presumably be tolled 

indefinitely by the complaint that has not been dismissed. The plaintiff would 

then apparently have an unlimited period of time in which to file a sufficient 

notice and to refile the complaint against the remaining defendants (or at least 

until all the claims were dismissed or otherwise adjudicated). 
27

As this Court explained in Boodt, 481 Mich at 563 n 4, “§ 2301 only applies to 

pending actions.” As discussed above, § 2912b(1) provides, “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.” (Emphasis added.) Section 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 . . . .” (Emphasis added.) Therefore, as we 

explained in Boodt, 481 Mich at 562-563, “a plaintiff cannot commence an action 

before he or she files a notice of intent that contains all the information required 

under § 2912b(4).”20 Because plaintiff’s notice of intent here did not contain all 

the information required under § 2912b(4) as to HVR, plaintiff could not have 

commenced a medical malpractice action against HVR.21 Therefore, § 2301 is 

inapplicable, and plaintiff cannot retroactively amend the notice of intent and the 

courts cannot “disregard any error or defect” in the notice of intent. 

 20 For further discussion of Boodt, see my dissenting opinion in Bush, supra 

at 13, 17-18. 

21 In Bush, supra at 14 n 26, the majority mischaracterizes Boodt as holding 

that “because no tolling was afforded in the presence of a defect pursuant to § 

5856(d), the plaintiff’s action was not commenced under § 2912b(1).” However, 

it was not the lack of tolling that prevented the plaintiff’s action from 

commencing, it was the lack of a notice of intent in compliance with § 2912b. See 

§ 2912b(1) and (4) (“a person shall not commence an action alleging medical 

malpractice . . . unless the person has given . . . written notice . . . [that] contain[s] 

a statement of at least all of the following . . . .”). 
28

E. Majority Procedures 

 As noted in n 1 of this opinion, the majority addresses issues that are not 

even properly before it. In Docket No. 136336, plaintiff appealed the portion of 

the Court of Appeals decision that held that the notice of intent was defective as to 

HVR, and in Docket Nos. 136338 and 136339, defendants appealed the portion of 

the decision that held that the defective notice of intent tolled the statute of 

limitations, and thus that a dismissal without prejudice was appropriate, and the 

portion that held that the notice of intent was sufficient as to defendant Murry. In 

Docket No. 136336, we granted plaintiff’s application “limited to the issue 

whether defendant Huron Valley Radiology, P.C., is a ‘health facility or agency’ 

to which a plaintiff is required to provide notice under MCL 600.2912b(1).” 482 

Mich 1004 (2008) (emphasis added). In Docket Nos. 136338 and 136339, we held 

defendants’ application in abeyance for plaintiff’s application. 756 NW2d 85 

(2008). Subsequently, in Docket No. 136336, we directed the parties to file briefs 

addressing “whether, if a defendant professional corporation is not an entity to 

whom notice is required to be provided under MCL 600.2912b, the applicable 

statute of limitations, MCL 600.5805(6), was nonetheless subject to statutory 

tolling provided in former MCL 600.5856(d).” 483 Mich 922 (2009). However, 

we never asked the parties to address the sufficiency of the notice of intent as to 

either HVR or Murry. As a result, the parties did not, in fact, brief or argue these 

issues. See n 1 of this opinion. 
29

 Thus, despite the fact that the parties have not had an opportunity to brief or 

argue these issues, and, indeed, despite the fact that the issue regarding the 

sufficiency of the notice of intent as to defendant Murry has been formally abeyed, 

the majority nonetheless addresses these issues and implicitly overrules Roberts II

in the process.22 The majority implicitly overrules Roberts II by refusing to follow 

its holdings: (a) that a notice of intent must indicate whether the plaintiff is 

seeking to hold the defendant professional corporation vicariously or directly 

liable, and instead holding that as long as the plaintiff is only going to sue the 

defendant on the basis of vicarious liability it does not have to indicate this in the 

notice of intent; and (b) that a notice of intent must contain all the statements 

required by § 2912b(4), and instead holding that a notice of intent is sufficient as 

long as the defendant “could reasonably be held to comprehend the nature of the 

claims being asserted against it.” Ante at 26. The majority does this without so 

much as a mention of stare decisis. What happened to the view that “[t]he 

Michigan Supreme Court should not alter the precedent . . . without first hearing 

oral argument and inviting briefing on it”? Scott v State Farm Mut Auto Ins Co, 

 22 “The Court shall not issue any peremptory order unless it is signed by 

five Justices, except where a majority of Justices conclude that emergency 

circumstances warrant the issuance of such an order.” Minutes of the Conference 

on Administrative Matters, Item 2, 2003-31, Internal Rules, July 24, 2003. The 

majority violates this rule by reversing the Court of Appeals on the issue of the 

sufficiency of the notice of intent as to defendant HVR without briefing or oral 

argument, and without the requisite five votes, because, although this issue was 

raised in plaintiff’s application for leave to appeal, we granted leave to appeal only 

as to a different issue. 
30

482 Mich 1074, 1076-1077 (2008) (Kelly, J., dissenting). What happened to the 

view that by “fail[ing] to comprehend how the skilled advocates in this case could 

have added anything insightful in the debate over the proper interpretation of . . . 

precedent . . . the majority undermines the foundations of our adversarial system”? 

Mack v Detroit, 467 Mich 186, 223; 649 NW2d 47 (2002) (Cavanagh, J., 

dissenting). Apparently, these views are only pertinent where precedents with 

which the majority agrees are at stake. 23

 23 For further discussion on the subject of the majority and stare decisis see 

Petersen v Magna Corp, 484 Mich ___; ___ NW2d ___ (2009) (Markman, J., 

dissenting), decided July 31, 2009 (Docket Nos. 136542 and 136543), slip op at 

43-51, and Rowland v Washtenaw Co Rd Comm, 477 Mich 197, 223-247; 731 

NW2d 41 (2007) (Markman, J., concurring). Increasingly, the same regard for 

precedent evidenced in this case towards Roberts II by the majority, see supra at 

12-13, has been reflected toward other disfavored and inconvenient precedents: 

they are simply ignored. For illustrations of this phenomenon, see e.g., 

Vanslembrouck v Halperin, 483 Mich 965 (2009), in which the new majority 

ignored Vega v Lakeland Hosps, 479 Mich 243, 244; 736 NW2d 561 (2007); 

Hardacre v Saginaw Vascular Services, PC, 483 Mich 918 (2009), in which it 

failed to follow Boodt, 481 Mich 558; Sazima v Shepherd Bar & Restaurant, 483 

Mich 924 (2009), in which it failed to follow Chrysler v Blue Arrow Transport 

Lines, 295 Mich 606; 295 NW 331 (1940), and Camburn v Northwest School Dist

(After Remand), 459 Mich 471; 592 NW2d 46 (1999); Juarez v Holbrook, 483 

Mich 970 (2009), in which it failed to follow Smith v Khouri, 481 Mich 519; 751 

NW2d 472 (2008); Beasley v Michigan, 483 Mich 1025 (2009), in which the 

majority failed to follow Rowland v Washtenaw Co Rd Comm, 477 Mich 197; 731 

NW2d 41 (2007); Scott v State Farm Mut Auto Ins Co, 483 Mich 1032 (2009), in 

which the majority failed to enforce Thornton v Allstate Ins Co, 425 Mich 643; 

391 NW2d 320 (1986), and Putkamer v Transamerica Ins Corp of America, 454 

Mich 626; 563 NW2d 683 (1997) and Chambers v Wayne Co Airport Auth, 483 

Mich 1081 (2009), in which the majority again failed to abide by Rowland. 

Chief Justice Kelly contends that “the accusation that the Court has been 

ignoring precedent is incorrect.” Ante at 5. As Justice Corrigan explained in 
31

 

Beasley, 483 Mich at 1029-1030 (Corrigan, J., dissenting), in response to this 

same contention: 

Chief Justice Kelly attempts to explain away the new 

majority’s actions by sharing her views regarding the prior caselaw 

that the new majority has otherwise chosen to ignore. But Chief 

Justice Kelly’s interpretation of a prior case in a concurring 

statement is not a decision of the Court. More importantly, her 

argument overlooks the fundamental problem: the new majority’s 

continuing failure to explain its apparent disregard of this Court’s 

precedent undermines the predictability and stability of the rule of 

law. 

* * * 

[T]he new majority offers no articulable reasons whatsoever 

for its apparent detours from stare decisis. Instead, the majority 

declines to explain whether—and, if so, why—it is overruling 

precedent despite the obvious appearance that it is doing so. If it 

intends to alter legal principles embedded in this Court’s decisions, 

then the new majority should explain its reasons clearly and 

intelligibly. Instead, the new majority overrules by indirection, or at 

least leaves the impression that it is doing so, thereby sowing the 

seeds of confusion and making it difficult for the citizens of this 

state to comprehend precisely what our caselaw requires. This 

appears to be an unfortunate return to our predecessors’ past practice 

of “frequently pa[ying] little attention to the inconsistencies among 

its cases and declin[ing] to reduce confusion in [the Court’s] 

jurisprudence by overruling conflicting decisions.” Devillers v Auto 

Club Ins Ass’n, 473 Mich 562, 571 n 19 (2005). 

See also Rowland, 477 Mich at 226-227 (Markman, J., concurring), for further 

discussion of the penchant of some Justices to ignore inconvenient precedents, 

thereby “[leaving] intact precedents that were inconsistent with new decisions, 

essentially allowing future litigants to choose among inconsistent precedents as in 

columns A and B of a Chinese restaurant menu.” 

In the end, there is no shortcut to resolving whether the 

majority or the dissenting Justices are correct in their 

characterizations of what the majority is doing. We can only 

identify what we believe to be the questionable decisions of the 

majority, identify the relevant precedents, and invite the reader to 
32

 To summarize my concerns with the majority opinion: (1) it addresses 

issues that have neither been brief nor argued; (2) it addresses an issue that was 

formally abeyed; (3) it violates one of this Court’s internal rules by reversing the 

Court of Appeals on an issue that has neither been briefed nor argued, without the 

required five votes and in the absence of any emergency circumstances; (4) it 

concludes that HVR was entitled to a notice of intent simply because this is a 

medical malpractice action and because the words “professional corporation” can 

be found in § 5838a, without any discussion of whether HVR is either a “health 

professional or health facility” under § 2912b(1); (5) it concludes that the 

requirement of § 2912b(4)(a) that the notice of intent contain a statement of the 

“factual basis for the claim” does not require a statement indicating that the reason 

that the defendant professional corporation is being sued is because the defendant 

physician was working at the corporation at the time of the alleged malpractice; 

(6) it concludes that the requirement of § 2912b(4)(b) that the notice of intent 

contain a statement of the “applicable standard of practice or care” does not 

require a statement indicating whether the plaintiff is seeking to hold the defendant 

professional corporation directly or vicariously liable; (7) it relies upon a 

distinction without any difference to conclude that Roberts II is not dispositive; (8) 

it questions whether Roberts II was correctly decided with regard to whether a 

 

reach his or her own conclusions. [Petersen, supra at 47 n 47 

(Markman, J. dissenting).]
33

notice of intent must be particularized, leaving the bench and bar at a loss as to 

whether Roberts II remains good law on this issue; and (9) it implicitly overrules 

Roberts II’s holding that a notice of intent must indicate whether the plaintiff is 

seeking to hold the defendant professional corporation vicariously or directly 

liable and its holding that a notice of intent must contain all of the statements 

required by § 2912b(4), without any mention whatsoever of stare decisis. 

IV. CONCLUSION 

 Although the notice of intent was sufficient as to defendant Murry, it was 

insufficient as to defendant HVR. As this Court held in Roberts I, a defective 

notice of intent does not toll the statute of limitations. Because the complaint was 

filed more than two years after the alleged malpractice occurred, the action against 

HVR is time-barred. Accordingly, I would affirm the portions of the Court of 

Appeals opinion that held that the notice of intent was sufficient as to defendant 

Murry and insufficient as to defendant HVR, but reverse the portions that held that 

the defective notice of intent tolled the statute of limitations and thus that a 

dismissal without prejudice was appropriate. The action against HVR should be 

dismissed with prejudice. 

Stephen J. Markman