Hoffman v. Barrett.

288 Mich.App. 536

794 N.W.2d 67

HOFFMAN

v.BARRETT.

Docket No. 289011.

Court of Appeals of Michigan.

Submitted April 7, 2010, at Lansing.Decided June 3, 2010, at 9:00 a.m.

Charfoos & Christensen, P.C. (by David R. Parker, J. Douglas Peters, and Ann K. Mandt), Detroit, for plaintiff.Aardema, Whitelaw & Sears–Ewald, PLLC (by Dolores Sears–Ewald and Timothy P. Buchalski, Grand Rapids), for defendant.Before: DAVIS, P.J., and DONOFRIO and STEPHENS, JJ.DAVIS, P.J.

Defendant appeals as of right the dismissal without prejudice of plaintiff's medical malpractice action. Defendant moved for summary disposition, asserting that plaintiff's notice of intent to file her claim and affidavit of merit were deficient. Plaintiff conceded that the affidavit of merit was defective. The trial court found that the notice of intent “could be better, but [is] adequate,” and therefore granted summary disposition without prejudice. This Court reviews de novo a trial court's interpretation of a statute and decision on a motion for summary disposition. Esselman v. Garden City Hosp., 284 Mich.App. 209, 215–216, 772 N.W.2d 438 (2009). Defendant contends that dismissal should have been with prejudice. We disagree, and we affirm.

The decedent, Edgar Brown, fell from the roof of his house onto a cement driveway on January 13, 2001, and he was taken to the emergency room at Battle Creek Health Systems¹ (BCHS). Defendant, Dr. Peter Barrett, was assigned to care for the decedent. The decedent's treatment entailed, among other things, insertion of a chest tube to reinflate a lung. He was discharged from BCHS and returned to his home on January 24, 2001. The decedent developed problems at home the next day. Emergency medical services were summoned, and the decedent went into full arrest in the ambulance. He was pronounced dead at the hospital.

This matter has been before this Court previously, in Docket No. 258982. Plaintiff was appointed personal representative on July 27, 2001. Plaintiff provided defendants² with a notice of intent to sue, pursuant to MCL 600.2912b(1), on March 3, 2003. Plaintiff commenced the instant suit on October 16, 2003. On August 27, 2004, the trial court granted a prior summary disposition motion in favor of defendants because, at the time, this Court had held that our Supreme Court's decision in Waltz v. Wyse, 469 Mich. 642, 677 N.W.2d 813 (2004), applied retroactively. Mullins v. St. Joseph Mercy Hosp., 271 Mich.App. 503, 722 N.W.2d 666 (2006) ( Mullins I ), rev'd Mullins v. St. Joseph Mercy Hosp., 480 Mich. 948, 741 N.W.2d 300 (2007) ( Mullins II ). Under a retroactive application of Waltz, plaintiff's suit had been filed after the wrongful death saving period had expired. The Court of Appeals affirmed the trial court's determination. Hoffman v. Barrett, unpublished opinion per curiam of the Court of Appeals, issued May 22, 2007 (Docket No. 258982), 2007 WL 1489330. Plaintiff applied for leave to appeal in our Supreme Court, which held the application for leave to appeal in abeyance pending the outcome of the appeal in Mullins. After Mullins II was decided, our Supreme Court, in lieu of granting leave to appeal, reversed the judgment of the Court Appeals and remanded the case to the trial court for the entry of an order denying defendants' motion for summary disposition and for further proceedings. Hoffman v. Barrett, 480 Mich. 981, 741 N.W.2d 841 (2007).³

Defendant's first argument is that this matter should have been dismissed with prejudice, rather than without prejudice, because plaintiff no longer has time to refile. While this might be true for some cases, it is not true here.

The malpractice presumably happened on or before January 24, 2001. There is a two-year statutory limitations period, and an additional possible three years under the “saving provision.” The limitations period is tolled if a complaint is filed with a defective affidavit of merit, but the saving period is not. The limitations period would have expired on, at the latest, January 24, 2003. Suit was filed on October 16, 2003, so the limitations period had already expired and could not thereafter be tolled. The saving period,⁴ MCL 600.5852, provides an additional two years after the appointment of a personal representative; plaintiff was appointed personal representative on July 27, 2001, so the saving period would have expired on July 27, 2003, see, generally, Ligons v. Crittenton Hosp., 285 Mich.App. 337, 351–355, 776 N.W.2d 361 (2009),⁵ if it had not been tolled by the application of Mullins II. Because Mullins II applies, plaintiff's notice of intent, which was filed on March 3, 2003, and which we conclude is valid, tolled the running of the saving period. This action was therefore timely filed.

We observe that the legal framework established by Waltz and Ligons affirmatively encourages defendants—who would obviously know whether an affidavit of merit is insufficient simply by casually reading it and determining that they do not see therein all the required elements—to engage in delaying tactics until the saving period expires and then simply arrange to have the matter dismissed on a procedural technicality instead of any substantive basis. Therefore, this framework runs directly and poisonously contrary to the longstanding policy in this state and its predecessor legal systems of resolving controversies on substantive grounds, not procedural gamesmanship and trickery. See, e.g., Walters v. Arenac Circuit Judge, 377 Mich. 37, 47, 138 N.W.2d 751 (1966) (opinion by O'Hara, J.) (“The trend of our jurisprudence is toward meritorious determination of issues.”); White v. Mich. Consol. Gas Co., 352 Mich. 201, 213, 89 N.W.2d 439 (1958) (“ ‘The courts have construed [statutes of journey's accounts, longstanding statutes enabling plaintiffs to obtain a new writ within some number of days after an original writ is abated] liberally in furtherance of their purpose—to enable controversies to be decided upon substantive questions rather than upon procedural technicalities.’ ”), disapproved of on other grounds in Sanford v. Ryerson & Haynes, Inc., 396 Mich. 630, 637, 242 N.W.2d 393, (1976), quoting with approval Wilt v. Smack, 147 F.Supp. 700 (E.D.Pa., 1957); Crowther v. Ross Chem. & Mfg. Co., 42 Mich.App. 426, 430, 202 N.W.2d 577 (1972) (observing, albeit in a different context, that “the policy under modern rules of procedure to dispose of cases according to their merits, rather than by applying technical rules formalistically to bar meritorious claims”).

But, as observed, this case was filed after Omelenchuk v. City of Warren, 461 Mich. 567, 609 N.W.2d 177 (2000), was decided, and the saving period expired before 182 days after Waltz was decided. Therefore, Waltz does not apply to this case. Mullins II, 480 Mich. at 948, 741 N.W.2d 300. Before the decision in Waltz, the saving period was understood to be tolled by filing a notice of intent exactly the same way in which the period of limitations would be tolled. Waltz, 469 Mich. at 653–654, 677 N.W.2d 813; see also Judge O'Connell's dissenting opinion in McLean v. McElhaney, 269 Mich.App. 196, 206–207, 711 N.W.2d 775 (2005). Indeed, “it was the Court, and not the Legislature, that labeled [MCL 600.5852] a ‘saving statute’ ” instead of a special-purpose limitations period. Mullins I, 271 Mich.App. at 527, 722 N.W.2d 666 (Murphy, J., dissenting) (emphasis in original). Because Waltz does not apply, but Omelenchuk does, plaintiff's filing of the notice of intent tolled the saving period. As we discuss, the trial court correctly found the notice of intent to be sufficient, so dismissal without prejudice was proper.

Plaintiff conceded that the affidavit of merit was defective. Nevertheless, filing a complaint and an affidavit of merit—even a defective one—tolls the limitations period until the affidavit is successfully challenged. Kirkaldy v. Rim, 478 Mich. 581, 585–586, 734 N.W.2d 201 (2007). After our Supreme Court's transmutation of the extended limitations period in MCL 600.5852 into a “saving period,” see Waltz, 469 Mich. at 662–672, 677 N.W.2d 813 (Cavanagh, J., dissenting), the saving period would not be so tolled. Ligons, 285 Mich.App. at 353–354, 776 N.W.2d 361. However, again, Waltz does not apply to this matter. Pursuant to Omelenchuk, Mullins II, and a rational reading of MCL 600.5852 as providing a limitations period, the running of the additional time provided by that statute would have been tolled here by the filing of the complaint and affidavit of merit. Filing the notice of intent on March 3, 2003, tolled the saving period for 182 days, but there were in addition 146 days remaining in the saving period at that time. When this suit was filed on October 16, 2003, there remained 101 days within which plaintiff could have filed. Plaintiff still had this time available upon the successful challenge to the affidavit of merit, and therefore dismissal was properly without prejudice.

Defendant next argues that the notice of intent was insufficient because it failed to contain a statement explaining the manner in which defendant's alleged breach of the standard of care resulted in plaintiff's decedent's injuries.⁶ We agree with the trial court that the notice of intent could have been better, but was sufficient.

Under MCL 600.2912b, commencement of a medical malpractice claim requires a plaintiff to provide an advance “notice of intent” to the intended defendant; that notice must provide certain specific pieces of information, although no particular format is required. Ligons, 285 Mich.App. at 343, 776 N.W.2d 361. The information in the notice of intent must be provided in good faith, but it need not eventually be proven to be completely accurate. Boodt v. Borgess Med. Ctr., 481 Mich. 558, 561, 751 N.W.2d 44 (2008). Furthermore, the information need only be detailed enough to “allow the potential defendants to understand the claimed basis of the impending malpractice...