Hoffman v. Barrett

295 Mich.App. 649

816 N.W.2d 455

HOFFMAN

v.BARRETT (ON REMAND).

Docket No. 289011.

Court of Appeals of Michigan.

Submitted Nov. 15, 2011, at Lansing.

Decided March 8, 2012, at 9:10 a.m.

Charfoos & Christensen, P.C., Detroit (by David R. Parker, J. Douglas Peters, and Ann K. Mandt), for Beth Hoffman.

Aardema, Whitelaw & Sears–Ewald, PLLC (by Dolores Sears–Ewald and Timothy P. Buchalski), for Peter Barrett, M.D.

Before: DONOFRIO, P.J., and K.F. KELLY and STEPHENS, JJ.

ON REMAND

PER CURIAM.

This case is before us on remand from our Supreme Court for reconsideration in light of Ligons v. Crittenton Hosp., 490 Mich. 61, 803 N.W.2d 271 (2011) (Ligons II ), in which the Court held that a medical malpractice action must be dismissed with prejudice if a defective affidavit of merit (AOM) is filed after the expiration of both the statutory limitations period and the saving period. Hoffman v. Barrett, 490 Mich. 890, 804 N.W.2d 317 (2011). Key to the Court's decision in Ligons was the applicability of Waltz v. Wyse, 469 Mich. 642, 677 N.W.2d 813 (2004), in which the Court determined that MCL 600.5856 tolls only statutes of limitations or repose and does not toll the wrongful death saving period provided in MCL 600.5852. See Ligons II, 490 Mich. at 74–76, 89–90, 803 N.W.2d 271. Because Waltz is inapplicable in the present case, as our Supreme Court previously determined,¹Ligons II does not affect our previous decision, and we again affirm.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

This case is before this Court for the third time. In Hoffman v. Barrett, 288 Mich.App. 536, 538–539, 794 N.W.2d 67 (2010) (Hoffman II ), vacated 490 Mich. 890, 804 N.W.2d 317 (2011), we set forth the pertinent facts and procedural history:

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 Systems ¹ (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 defendants ² 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) . 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) [Hoffman I ].³

FN* See supra at 654—Reporter.

On July 29, 2011, our Supreme Court decided Ligons II, in which it determined that dismissal with prejudice was required in circumstances similar to the instant case. In that case, the plaintiff filed two AOMs, both of which were defective. Ligons II, 490 Mich. at 77–79, 803 N.W.2d 271. He failed to commence his lawsuit within the limitations period, but filed his complaint and accompanying AOMs within the saving period provided by MCL 600.5852. Id. at 89, 803 N.W.2d 271. Because the AOMs were defective, however, and the plaintiff was unable to amend the AOMs retroactively, dismissal with prejudice was required. Id. at 79–90, 803 N.W.2d 271. The Ligons II Court stated:

Although the timely filing of a defective AOM tolls the limitations period until a court finds the AOM defective, an AOM filed during a saving period after the limitations period has expired tolls nothing, as the limitations period has run and the saving period may not be tolled. In this case, because the limitations period had run before the complaint was filed, plaintiff cannot amend his defective AOMs retroactively. Given that the saving period has expired, plaintiff's case had to be dismissed with prejudice. [Id. at 90, 803 N.W.2d 271 (emphasis added).]

As the emphasized language in the preceding paragraph indicates, Waltz was applicable in Ligons. Thus, pursuant to Waltz, the plaintiff's filing of the AOMs did not toll the saving period. Ligons II, 490 Mich. at 74–76, 89–90, 803 N.W.2d 271. In this case, however, Waltz is not applicable. Hoffman I, 480 Mich. at 981, 741 N.W.2d 841;Mullins II, 480 Mich. at 948, 741 N.W.2d 300. Accordingly, as stated previously in Hoffman II, 288 Mich.App. at 542, 794 N.W.2d 67, plaintiff's filing of her notice of intent tolled the saving period and the filing of her complaint and AOM would have tolled the running of the additional time provided under the saving provision. Because there remained time within which plaintiff could refile her suit, the trial court properly dismissed the action without prejudice.

III. REMAINING ISSUES

Defendant also argues that plaintiff's notice of intent was insufficient and contends that plaintiff's expert was not qualified to sign the AOM or offer standard-of-care testimony against him. Because Ligons II does not implicate those issues, and our Supreme Court vacated this Court's entire opinion in Hoffman II, we adopt verbatim our previous analysis of those issues in Hoffman II, 288 Mich.App. at 543–551, 794 N.W.2d 67:

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 [ I ], 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 action,” particularly given that it is being provided before discovery would ordinarilyhave begun. Roberts v. Mecosta Co. Gen. Hosp. ( After Remand ), 470 Mich. 679, 691, 692 n. 7, 684 N.W.2d 711 (2004). A bare statement that the alleged negligence caused the harm is insufficient, Boodt, 481 Mich. at 560 [751 N.W.2d 44], but the entire notice must be read and considered as a whole, rather than piecemeal, Ligons [ I ], 285 Mich.App. at 344 [776 N.W.2d 361].

Plaintiff's notice of intent provided,⁷ in relevant part, as follows:

“ SECTION 2912b NOTICE OF INTENT TO FILE CLAIM

RE: EDGAR BROWN, DECEASED

“This Notice is intended to apply to the following healthcare professionals, entities and/or facilities as well as their employees or agents, actual or ostensible, who were involved in the evaluation, care and/or treatment of EDGAR BROWN, DECEASED.

“DR. PETER BARRETT, BATTLE CREEK HEALTH SYSTEMS, AND ANY AND ALL PROFESSIONAL CORPORATIONS AND ALL AGENTS AND EMPLOYEES, ACTUAL OR OSTENSIBLE, THEREOF.

“I. FACTUAL BASIS OF THE CLAIM

“On January 13, 2001, Edgar Brown fell from a ladder and was brought to Battle Creek Health Systems Emergency Room. He was found to have multiple rib fractures and a right pneumothorax.^[8] Dr. Peter Barrett was assigned to care for Mr. Brown and he was admitted to the hospital.

“A chest tube was inserted and was removed on January 19, 2001. Mr. Brown developed an ileus ^[9] and a nasogastric tube^[10] was inserted. Between the time of his admission and his discharge, Mr. Brown continued to have diminished breath sounds. His last chest x-ray was taken on January 20, 2001 and his last abdominal x-ray was taken on January 19, 2001. Mr. Brown was discharged home on January 24, 2001. He had a distended abdomen and was still having difficulty breathing.

“Within 24 hours of discharge, Mr. Brown became short of breath while talking, his abdomen remained distended and his daughter called for an ambulance. Mr. Brown went into full arrest in the ambulance. The cause of death was determined to be complications of multiple injuries from [sic]. On autopsy, Mr. Brown was found to have right pulmonary atelectasis^[11] and right empyema/pleuritis,^[12] as well as an intestinal ileus.^[13]

“II. APPLICABLE STANDARD OF PRACTICE OR CARE ALLEGED

“A reasonable and prudent physician and/or hospital staff would have:

“a. Monitored a patient such as Mr. Brown carefully and regularly, including, but not limited to, having performed full diagnostic tests such as regular chest x-rays and...