Kostadinovski v. Harrington

999 N.W.2d 318

511 Mich. 141

Drago KOSTADINOVSKI and Blaga Kostadinovski, Plaintiffs-Appellants,

v.Steven D. HARRINGTON, M.D., and Advanced Cardiothoracic Surgeons, PLLC, Defendants-Appellees.

No. 162909

Supreme Court of Michigan.

Argued on application for leave to appeal December 7, 2022

Decided July 6, 2023

Kathryn A. Viviano, J.

Mark Granzotto, PC, Royal Oak (by Mark Granzotto) and Meyers Law, PLLC (by Jeffrey T. Meyers and Timothy M. Takala) for plaintiffs.

Collins Einhorn Farrell PC, Southfield (by Michael J. Cook) for defendants.

Jennifer A. Engelhardt, Ann Arbor, for Michigan Association for Justice, amicus curiae.

BEFORE THE ENTIRE BENCH (except Viviano and Bolden, JJ.)

OPINION

Bernstein, J.

₁₄₅This is the second time this case has come before us. Previously, we considered whether, "consistent with MCL 600.2912b, a plaintiff in a medical malpractice case may amend the complaint to include newly discovered claims against an existing defendant." Kostadinovski v Harrington, 503 Mich. 869, 917 N.W.2d 403 ₁₄₆(2018). We subsequently denied leave,¹ which left in place the published Court of Appeals opinion, Kostadinovski v Harrington, 321 Mich App 736, 909 N.W.2d 907 (2017) (Kostadinovski I).

MCL 600.2912b concerns the requirement to file a notice of intent (NOI) to file suit in medical malpractice cases. We now consider a related, but more specific question: what application does MCL 600.2912b have when a plaintiff in a medical malpractice case seeks to amend a complaint to add new theories against an existing defendant? We hold that MCL 600.2912b does not apply where a plaintiff seeks to amend their complaint against an already-named defendant after suit has already been commenced. Accordingly, we reverse the judgment of the Court of Appeals² and remand this case to the trial court for further proceedings that are consistent with this opinion.

I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

While the procedural history of this ease is somewhat long and complex, the underlying facts have remained unchanged since this case was first before the Court of Appeals. In that opinion, the Court of Appeals set forth the following facts and background:

On December 9, 2013, plaintiffs [Drago and Blaga Kostadinovski] served defendants [Dr. Steven D. Harrington and Advanced Cardiothoracic Surgeons, PLLC] with the NOI, asserting that on December 14, 2011, the doctor [defendant Dr. Steven D. Harrington] had performed robotic-assisted [mitral-valve-repair] surgery on Mr. Kostadinovski and that, as subsequently determined, Mr. Kostadinovski suffered a stroke during the course of ₁₄₇the procedure. The NOI listed six specific theories with respect to the manner in which the doctor allegedly breached the applicable standard of care relative to the surgery and preparation for the surgery, along with identifying related causation claims. On June 4, 2014, an expert for plaintiffs executed an affidavit of merit that listed the same six negligence theories outlined in the NOI in regard to the alleged breaches of the standard of care. On June 5, 2014, plaintiffs filed their medical malpractice complaint against defendants, along with the affidavit of merit, alleging that the doctor breached the standard of care in the six ways identified in the NOI and affidavit of merit. The causation claims were also identical in all three legal documents ….

On March 21, 2016, defendants filed a motion for summary disposition, arguing that, as revealed during discovery, plaintiffs’ expert witnesses could not validate or support the six negligence theories set forth in the NOI, affidavit of merit, and complaint. On that same date, March 21, 2016, plaintiffs filed a motion to amend their complaint. Plaintiffs asserted that discovery had recently been completed and that discovery showed that Mr. Kostadinovski "was in a hypotensive state during the operation and was not adequately transfused." According to plaintiffs, this evidence was previously unknown and only came to light following the deposition of the perfusionist, the continuing deposition of the doctor, and the depositions of plaintiffs’ retained experts. Plaintiffs sought to amend the complaint to allege negligence against the doctor "for failing to adequately monitor Mr. Kostadinovski’s hypotension during the operation and failing to transfuse the patient so as to maintain the patient’s blood pressure." On March 28, 2016, a hearing was held on plaintiffs’ motion to amend the complaint, and the trial court decided to take the matter under advisement. On April 25, 2016, a hearing was conducted on defendants’ motion for summary disposition, at which time plaintiffs agreed to the dismissal of their original complaint, given that their theories of negligence now lacked expert support, as did the causation claims that had been linked to ₁₄₈the defunct negligence theories. Plaintiffs’ motion to amend the complaint remained pending.

On April 29, 2016, the trial court issued a written opinion and order denying plaintiffs’ motion to amend the complaint. [Kostadinovski I, 321 Mich App at 740-742, 909 N.W.2d 907.]

To summarize, after filing their medical malpractice complaint, plaintiffs subsequently filed a motion to amend their complaint, but did not file either a new NOI or a motion to amend their original NOI.

Plaintiffs appealed, and defendants cross-appealed. The Court of Appeals issued a published opinion that largely discussed only the application of MCL 600.2301, which concerns amendments. The Court of Appeals reversed and remanded to the trial court for that court to apply MCL 600.2301 in considering whether amendment of the NOI would be appropriate. To the extent that the Court of Appeals addressed MCL 600.2912b at all, the Court touched upon it only briefly in a footnote:

Plaintiffs argue that MCL 600.2912b simply requires the service of an NOI before suit is filed and that once this is accomplished through the service of a proper and compliant NOI, as judged at the time suit is filed and by the language in the original complaint, the requirements of the statute have been satisfied, absent the need to revisit the NOI even if a new theory of negligence or causation is later developed that was not included in the NOI and that forms the basis of an amended complaint. If this were the law, the entire analysis in [Decker v Rochowiak, 287 Mich App 666, 791 N.W.2d 507 (2010),] would have been completely unnecessary because a proper and compliant NOI had been served on the defendants, as judged on the date the original complaint was filed and by the language in that complaint. Moreover, the approach suggested by plaintiffs would undermine the legislative intent and purpose behind MCL 600.2912b. [Kostadinovski I, 321 Mich App at 751 n 6, 909 N.W.2d 907.]

₁₄₉Defendants then sought leave to appeal in this Court, with plaintiffs filing a cross-appeal. Following oral argument, we denied leave, which left in place the Court of Appeals’ opinion in Kostadinovski I. See Kostadinovski v Harrington, 503 Mich. 1009, 925 N.W.2d 202 (2019). On remand, the trial court once again denied plaintiffs’ motion to amend, concluding that amendment would be futile and that amending the complaint would run afoul of the requirement in MCL 600.2912b that written notice be given to a health professional or health facility before a complaint is filed. On appeal, the Court of Appeals relied on the footnote in Kostadinovski I to determine that the law-of-the-case doctrine prevented them from arriving at a different conclusion. Kostadinovski v Harrington, unpublished per curiam opinion of the Court of Appeals, issued March 11, 2021, 2021 WL 940992 (Docket No. 351773) (Kostadinovski II), p. 8.

Plaintiffs sought leave to appeal in this Court, continuing to argue that MCL 600.2912b does not apply under these circumstances. On November 23, 2021, we ordered oral argument on the application. Kostadinovski v Harrington, 508 Mich. 982, 966 N.W.2d 152 (2021).

II. STANDARD OF REVIEW

[1–3] A decision to deny a motion to amend pleadings is within the discretion of the trial court, and reversal is only appropriate when the trial court abuses that discretion. Weymers v Khera, 454 Mich. 639, 654, 563 N.W.2d 647 (1997). "An abuse of discretion occurs when a trial court’s decision falls outside the range of reasonable and principled outcomes." People v Franklin, 500 Mich. 92, 100, 894 N.W.2d 561 (2017) (quotation marks and citation omitted). "A trial court necessarily ₁₅₀abuses its discretion when it makes an error of law." People v Duncan, 494 Mich. 713, 723, 835 N.W.2d 399 (2013).

[4–6] This Court reviews questions of statutory interpretation de novo. Wyandotte Electric Supply Co. v Electrical Technology Sys., Inc, 499 Mich. 127, 137, 881 N.W.2d 95 (2016). "When interpreting a statute, we follow the established rules of statutory construction, the foremost of which is to discern and give effect to the intent of the Legislature." Whitman v City of Burton, 493 Mich. 303, 311, 831 N.W.2d 223 (2013), citing Sun Valley Foods Co v Ward, 460 Mich. 230, 236, 596 N.W.2d 119 (1999). "If the language of the statute is unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute must be enforced as written. No further judicial construction is required or permitted." Sun Valley Foods, 460 Mich. at 236, 596 N.W.2d 119.

III. MCL 600.2912b AND THE NOTICE-OF-INTENT REQUIREMENT

[7] In relevant part, MCL 600.2912b states:

(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.

* * *

(3) The 182-day notice period required in subsection (1) is shortened to 91 days if all of the following conditions exist:

(a) The claimant has previously filed the 182-day notice required in s...