Nancy Sanders v. McLaren-macomb
Nancy Sanders v. McLaren-macomb
Opinion
In this interlocutory appeal in a medical malpractice action, defendants Richard S. Veyna, M.D., Michigan Head and Spine Institute (MHSI), and University Neurosurgical Associates, PC (UNA) 1 appeal by leave granted 2 the trial court's order *308 granting plaintiff's motion for reconsideration and denying defendants' motion for summary disposition. The trial court denied defendants' motion for summary disposition on the ground that defendants failed to comply with MCR 2.112(L)(2)(a) in challenging plaintiff's notice of intent (NOI) to file a claim. For the reasons set forth in this opinion, we affirm.
I. BACKGROUND
Plaintiff's medical malpractice claim stems from the treatment that she received at McLaren-Macomb Hospital 3 in July 2013, related to a fall that had occurred at her home. Plaintiff was admitted to McLaren-Macomb Hospital on approximately July 2, 2013, where she was treated by a neurosurgeon, Dr. Veyna, who was employed by MHSI. 4 Plaintiff alleged that defendants were negligent in treating her condition, principally by failing to timely order and perform an MRI of her brain and cervical spine on July 4, 2013, and July 5, 2013. As a result of the delay in ordering or performing a brain MRI, plaintiff alleges there was a delay in the diagnosis and treatment of her spinal condition, causing prolonged compression of the spine. Plaintiff further alleged that the surgical procedure that was performed on July 13, 2013, 5 did not provide any benefit and that defendants' 6 negligence in failing to appropriately and timely diagnose her cervical spine pathology and relieve the pressure on her spinal cord caused her permanent quadriparesis.
On June 30, 2015, plaintiff, as required pursuant to MCL 600.2912b, mailed her NOI to, among others, defendants Dr. Veyna and MHSI. Plaintiff sent her NOI to Dr. Veyna by United States mail to the following addresses:
Richard S. Veyna, M.D.
c/o Michigan Head and Spine Institute
1030 Harrington Blvd.
Suite 100
Mt. Clemens, MI 48043
Richard S. Veyna, M.D.
c/o McLaren Macomb
1000 Harrington Blvd.
Mt. Clemens, MI 48043
Plaintiff sent her NOI to MHSI by United States Mail to the following addresses:
Michigan Head and Spine Institute
1030 Harrington Blvd.
Suite 100
Mt. Clemens, MI 48043
Michigan Head and Spine Institute, PLLC
Resident Agent: Harold D. Portnoy
44555 Woodward Avenue
Suite 506
Pontiac, MI 48341
MHSI, P.L.L.C.
Resident Agent: Harold D. Portnoy
44555 Woodward Avenue
Suite 506
Pontiac, MI 48341
*309 The two NOIs that were sent to the 44555 Woodward address were returned as undeliverable, but none of the other NOIs was returned.
On December 9, 2015, plaintiff filed her complaint against defendants alleging medical malpractice. Subsequently, on December 16, 2015, defendants' attorney, Scott Saurbier, contacted plaintiff's attorney, Matthew Turner, and requested a copy of the NOI that was sent, indicating that defendants had not received a copy. On December 28, 2015, Turner forwarded a copy of the NOI to Saurbier. Dr. Veyna averred that he never saw or received an NOI involving plaintiff until after being served with the complaint, that he was not an employee of McLaren-Macomb, and that neither MHSI nor McLaren-Macomb had ever indicated that an NOI had been delivered to them on his behalf. Additionally, Karin Green, the office administrator who receives all NOIs delivered to MHSI offices, averred that MHSI never received an NOI pertaining to plaintiff.
MHSI and UNA filed an answer on January 15, 2016, and Dr. Veyna filed an answer on February 9, 2016, in which defendants generally denied the allegations of negligence. Both answers raised as an affirmative defense that "[t]he claims are barred for failing to comply with MCL 600.2912b by not properly filing and providing sufficient Notice of Intent."
Thereafter, on March 4, 2016, Dr. Veyna and MHSI collectively moved for summary disposition pursuant to MCR 2.116(C)(8), arguing that plaintiff failed to give defendants the notice required by MCL 600.2912b(2) because plaintiff did not mail the NOIs to defendants' last known professional business addresses. Defendants argued that plaintiff mailed the NOIs to prior or nonexistent addresses, even though their correct addresses were reasonably ascertainable, and as a result, defendants did not receive the notice required under MCL 600.2912b to commence a medical malpractice action. Defendants contended that defendants' last known addresses could be determined by a Google search or, with respect to MHSI, by consulting the Michigan Department of Licensing and Regulatory Affairs (LARA) website.
In opposition to defendants' motion for summary disposition, plaintiff presented two arguments. First, plaintiff argued that defendants' motion was untimely under MCR 2.112(L)(2)(a), which strictly prescribes the time for challenging an NOI, and that defendants' motion must therefore be dismissed. Plaintiff asserted that under MCR 2.112(L)(2)(a), defendants were required to bring their challenge to the NOI by motion when they filed their answers but defendants failed to do so. Plaintiffs further maintained that there was not "good cause" as required by MCR 2.112(L)(2) that would permit the trial court to allow a later challenge to the NOI because defendants were aware of the addresses to which the NOIs were sent before they filed their answers. Second, plaintiff argued that she complied with the service requirements of MCL 600.2912b(2). Plaintiff asserted that she mailed the NOIs to defendants' last known professional business addresses as reasonably ascertained from the McLaren-Macomb website, Google searches, and the LARA website. Plaintiff also mailed an NOI to McLaren-Macomb, the only place where defendants rendered medical services to plaintiff. Plaintiff further argued that there was nothing to indicate that any one of the other business addresses for Dr. Veyna was his sole business address for receiving professional correspondence.
Defendants argued in reply that MCR 2.112(L)(2)(a) was inapplicable to their motion because defendants were not challenging *310 the contents of the NOI but instead were only challenging the lack of service of the NOI and plaintiff's failure to comply with the requirements of MCL 600.2912b(1). Defendants further argued that they had preserved their challenge by including it in their affirmative defenses filed with their answers, which put plaintiff on notice. Additionally, defendants argued that there was good cause for purposes of MCR 2.112(L)(2) to allow defendants' challenge because defendants' substantial rights were affected by not receiving the NOI, a medical malpractice action cannot be commenced against a defendant if an NOI is not provided to that defendant, and plaintiff had notice that defendants would assert this defense.
After a hearing on defendants' summary disposition motion, the trial court issued a written opinion and order granting the motion. The trial court noted that the parties had relied on matters beyond the pleadings and on that basis treated the motion as one brought under MCR 2.116(C)(10). The trial court concluded that summary disposition in defendants' favor was warranted because plaintiff had violated MCL 600.2912b(1) by completely failing to serve an NOI on defendants before filing the complaint even though their addresses were reasonably determinable.
Plaintiff moved for reconsideration, arguing, as pertinent to this appeal, that defendants' motion was untimely and that the trial court's initial ruling failed to address plaintiff's argument regarding the operation of MCR 2.112(L)(2)(a).
In a written opinion and order, the trial court granted plaintiff's motion for reconsideration and ruled that defendants' summary disposition motion was denied. The trial court concluded that defendants, by filing their answers and then challenging the NOI in their subsequent summary disposition motion, failed to comply with the clear language in MCR 2.112(L)(2)(a) that requires an NOI challenge to be made by a motion filed at the time the first response to the complaint is filed. Additionally, the trial court concluded that the court rule did not permit defendants to preserve a challenge to the NOI by merely raising it in the affirmative defenses in their answers because an answer is a pleading rather than a motion. The trial court further determined that there was no showing of good cause to allow defendants' untimely challenge.
Defendants sought leave to appeal the trial court's order, arguing that MCR 2.112(L)(2)(a), which applies in medical malpractice actions, was inapplicable in this case Specifically, defendants asserted that because the NOI was not properly served or actually received by defendants, plaintiff failed to comply with MCL 600.2912b and, therefore, a medical malpractice action was not commenced, rendering MCR 2.112(L)(2)(a) inapplicable.
This Court granted leave to appeal limited to the issues raised in the application and the supporting brief.
Sanders v. McLaren-Macomb
, unpublished order of the Court of Appeals, entered March 3, 2017 (Docket No. 336409). However, Judge GLEICHER indicated that she would have denied defendants' application because their argument lacked merit, stating that "the issue in this case is whether defendants were obligated to abide by the Court Rules, which clearly set forth when a challenge to an NOI must be made," and that "[d]efendants' belief that the case had never been properly filed does not excuse their flagrant disregard of ... MCR 2.112 [ (L)(2) ]."
Sanders
, unpub. order ( GLEICHER , J., dissenting), citing
Saffian v. Simmons
,
*311 II. STANDARD OF REVIEW
We review de novo a trial court's decision on a motion for summary disposition.
Saffian
,
This Court reviews for an abuse of discretion a trial court's ruling on a motion for reconsideration.
In re Moukalled Estate
,
Finally, we review de novo both questions of law and the interpretation of statutes and court rules.
Haksluoto v. Mt. Clemens Regional Med. Ctr.
,
III. ANALYSIS
MCL 600.2912b(1) provides, in relevant part, 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." 7 The manner of providing the NOI to a potential defendant is set forth in MCL 600.2912b(2), which states as follows:
The notice of intent to file a claim required under subsection (1) shall be mailed to the last known professional business address or residential address of the health professional or health facility who is the subject of the claim. Proof of the mailing constitutes prima facie evidence of compliance with this section. If no last known professional business or residential address can reasonably be ascertained, notice may be mailed to the health facility where the care that is the basis for the claim was rendered.
These statutory provisions provide specific rules for initiating a medical malpractice action. As our Supreme Court has explained, "[a]lthough a civil action is generally commenced by filing a complaint, a medical malpractice action can only be commenced by filing a timely NOI and then filing a complaint and an affidavit of merit after the applicable notice period has expired, but before the period of limitations has expired."
*312
Tyra v. Organ Procurement Agency of Mich.
,
MCR 2.112(L)(2) provides, in pertinent part, that
[i]n a medical malpractice action, unless the court allows a later challenge for good cause: (a) all challenges to a notice of intent to sue must be made by motion, filed pursuant to MCR 2.119, at the time the defendant files its first response to the complaint, whether by answer or motion [.]" [Emphasis added.] This provision was adopted by an amendment of the court rules that became effective on May 1, 2010. 485 Mich. cclxxv, cclxxvi (2010).
This Court "interpret[s] court rules using the same principles that govern the interpretation of statutes."
Ligons v. Crittenton Hosp.
,
First, MCR 2.112(L)(2)(a) states that the rule applies specifically to "all challenges to a notice of intent to sue," which, as previously noted, is a prerequisite condition to commencing a lawsuit for medical malpractice. Defendants argue that MCR 2.112(L)(2)(a) is inapplicable in this case because their challenge is based only on a claim that there was a lack of service and is not aimed at the content of the NOI. Thus, defendants argue, MCR 2.112(L)(2)(a) does not apply to their challenge based on a lack of service because the court rule only applies to challenges " to a notice of intent to sue." According to defendants, MCR 2.112(L)(2)(a) does not apply to all challenges involving the NOI requirements contained in MCL 600.2912b.
There are essentially two broad categories of NOI requirements-timing concerns and content concerns-both of which are set forth in MCL 600.2912b. See
Driver
, 490 Mich. at 257-258,
In other words, the purpose of the NOI is simply to give advance notice of the claim being made by the plaintiff to facilitate potential settlement. Thus, whether a challenge raised by a defendant is based on the timeliness of the NOI, the plaintiff's compliance with the notice waiting period, a claim that no NOI was received, or the contents of the NOI, the challenge is ultimately directed at the sufficiency of the notice received regarding the plaintiff's intent to sue. Consequently, each of these different types of challenges is just one of the possible grounds on which to challenge the sufficiency of the NOI and is essentially a challenge
to
the NOI. MCR 2.112(L)(2)(a) applies to "all" challenges to an NOI. This Court has recognized in the context of interpreting statutory language that "[t]here cannot be any broader classification than the word
all
, and
all
leaves room for no exceptions."
Peters v. Gunnell, Inc.
,
Next, MCR 2.112(L)(2)(a) states that these challenges to the NOI "
must
be made by motion, filed pursuant to MCR 2.119,
at the time the defendant files its first response to the complaint
, whether by answer or motion." (Emphasis added.) "The term 'must' indicates that something is mandatory."
Vyletel-Rivard v. Rivard
,
Thus, MCR 2.112(L)(2)(a) plainly requires a defendant to make any challenge to the sufficiency of the NOI by filing a motion at the same time that the defendant files a first response to the complaint. The language is unambiguous and must be applied as written.
Decker
,
[t]he amendments of MCR 2.112 and 2.118 serve to inject logic and equity into the procedural requirements governing *314 medical malpractice cases. MCR 2.112(L)(2)(a), as amended, requires a defendant to challenge a notice of intent to sue in the defendant's first response to the complaint. This is not a novel concept. Rather, it is entirely consistent with the time limits imposed on defendants asserting other affirmative defenses. See, e.g., MCR 2.116(C)(1) to (3) and (5) to (7) ; MCR 2.116(D)(1) and (2).... These limits promote judicial economy and efficiency and ensure that preliminary issues are disposed of quickly. [485 Mich. at cclxxvii ( KELLY , C.J., concurring).]
In this case, plaintiff mailed NOIs to defendants and subsequently filed a complaint against defendants alleging malpractice. After the complaint was filed, defendants claimed that they had never received an NOI from plaintiff. Defendants' attorney, Saurbier, requested a copy of the NOI from plaintiff's attorney, Turner, which Turner provided on December 28, 2015. Subsequently, MHSI and UNA filed an answer on January 15, 2016, and Dr. Veyna filed an answer on February 9, 2016. Both answers raised as an affirmative defense that plaintiff's claims were barred due to failing to properly file and provide the NOI. Then, on March 4, 2016, defendants collectively moved for summary disposition, arguing that dismissal was appropriate because they did not receive the notice required under MCL 600.2912b to commence a medical malpractice action. As previously discussed, defendants' claim that they did not receive notice constituted a challenge to the NOI, and defendants were therefore required to raise this challenge by motion filed at the time of their first response to the complaint. MCR 2.112(L)(2)(a). However, defendants did not raise this challenge by motion until March 4, 2016, well after their answers had been filed. An answer is not a "motion" under MCR 2.119 but is instead a "pleading." MCR 2.110(A)(5). There is nothing in MCR 2.112(L)(2)(a) allowing a challenge to the NOI to be preserved by including it within the affirmative defenses included in an answer. Because MCR 2.112(L)(2)(a) states that challenges to the NOI "must" be made by motion and at a specified time, these requirements are mandatory.
Vyletel-Rivard
,
Defendants also argued in the trial court that good cause existed to justify their late challenge. Although MCR 2.112(L)(2)(a) provides that a court may allow a later challenge to the NOI "for good cause," there was no good cause in this case to justify permitting defendants' late challenge. The term "good cause" is not defined in MCR 2.112(L), and this Court therefore refers to the dictionary and to caselaw to ascertain its meaning.
In re F.G.
,
In this case, the record shows that defendants had the necessary information to comply with the requirements of MCR 2.112(L)(2)(a) before defendants filed their answers. Although defendants denied receiving the NOIs before the complaint was filed on December 9, 2015, Turner forwarded a copy of the NOI and the cover letters to Saurbier on December 28, 2015, in response to Suarbier's request. Furthermore, the documents that Turner sent to
*315
Saurbier set forth the addresses to which plaintiff sent NOIs to defendants. As previously noted, defendants filed their respective answers on January 15, 2016, and February 9, 2016, but waited until March 4, 2016, to file their motion for summary disposition arguing that plaintiff failed to provide the notice required under MCL 600.2912b. It is apparent from the record that defendants possessed the information necessary to bring such a claim at the time they filed their answers and therefore could have made a timely motion raising this challenge as required by MCR 2.112(L)(2)(a). There was no legally sufficient reason justifying defendants' failure to comply with MCR 2.112(L)(2)(a), and there was consequently no good cause to warrant allowing an untimely challenge to the NOI.
In re F.G.
,
Nonetheless, defendants also argue that MCR 2.112(L)(2)(a) is inapplicable in this case because plaintiff could not "commence" a medical malpractice action when she failed to give defendants a timely NOI, and the court rule only applies "[i]n a medical malpractice action."
As previously stated, the statutory requirement that a plaintiff file a timely NOI is "a prerequisite condition to the commencement of a medical malpractice lawsuit," and "the failure to comply with the statutory requirement renders the complaint insufficient to commence the action."
Driver
, 490 Mich. at 257,
In
Saffian
,
Saffian guides our decision in this case. Placing that case in its historical perspective helps explain why.
In
Scarsella v. Pollak
,
In
Kirkaldy v. Rim
,
The case before us is analytically no different than Saffian . Here, defendants *317 unilaterally determined that plaintiff's alleged failure to mail the notices of intent to the correct addresses excused defendants from complying with the court rule governing challenges to NOIs. Like the defendant in Saffian , defendants here made that decision at their peril. Defendants' assumption that a court would ultimately agree that plaintiffs had not "commenced" this case does not excuse defendants' failure to play by the rules established by our Supreme Court, just as it did not excuse the defendant in Saffian.
In a brief order entered in
Auslander v. Chernick
,
In this case, however, plaintiff mailed NOIs to defendants, and the proof of mailing indicating that these NOIs were addressed to defendants is part of the lower court record, which provides prima facie evidence of plaintiff's compliance with the requirement to provide defendants with the required notice. MCL 600.2912b(2) ;
Haksluoto
,
*318
In conclusion, we hold that MCR 2.112(L)(2)(a) requires all challenges to the NOI to be made by motion at the time that the first response to the complaint is filed, and defendants failed to comply with this requirement. Regardless of how defendants attempt to label their challenge, it is ultimately a challenge to the NOI. Defendants forfeited their challenge to the NOI by failing to comply with the requirements of the court rule. See MCR 2.111(F)(2) (stating, in pertinent part, that a "defense not asserted in the responsive pleading or by motion as provided by these rules is waived, except for the defenses of lack of jurisdiction over the subject matter of the action, and failure to state a claim on which relief can be granted");
Roberts v. Mecosta Co. Gen. Hosp.
,
Affirmed. Plaintiff, having prevailed, may tax costs. MCR 7.219(A).
Gleicher, P.J., and Swartzle, J., concurred with Borrello, J.
Because Dr. Veyna, MHSI, and UNA are the only defendants who are parties to this appeal, our use of the word "defendants" refers only to these parties unless otherwise indicated.
Sanders v. McLaren-Macomb , unpublished order of the Court of Appeals, entered March 3, 2017 (Docket No. 336409).
McLaren-Macomb is an assumed name of the Mount Clemens Regional Medical Center.
Michigan Head and Spine Institute is an assumed name of University Neurosurgical Associates, PC.
Both the trial court and defendants on appeal indicated that the surgery occurred on July 11, 2013. However, the NOI indicates that the surgery occurred on July 13, 2013. Because the only issue on appeal is whether defendants complied with the procedural requirements in MCR 2.112(L)(2)(a) for challenging plaintiff's filing of the NOI, the date on which the surgery actually occurred is not pertinent to our analysis.
This allegation in plaintiff's complaint pertained to all defendants, including those who are not parties to this appeal.
MCL 600.2912b(3), (8), (9) describe specific situations in which the 182-day notice period may be shortened, but the length of the notice period is not pertinent to the issue raised on appeal.
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:
(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.
MCL 600.2912d(1) provides:
Subject to subsection (2), the 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 section 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:
(a) The applicable standard of practice or care.
(b) The health professional's opinion that the applicable standard of practice or care was breached by the health professional or health facility receiving the notice.
(c) The actions that should have been taken or omitted by the health professional or health facility in order to have complied with the applicable standard of practice or care.
(d) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice.
An order of the Michigan Supreme Court is binding precedent if it includes an understandable rationale supporting its decision. See
Evans & Luptak, PLC v. Lizza
,
Plaintiff also makes additional arguments that she in fact complied with the requirements of MCL 600.2912b and that dismissal without prejudice would be the proper remedy if plaintiff actually failed to comply with the notice requirements. However, in light of our disposition in this case, these arguments are moot, and we decline to address them. "An issue is deemed moot when an event occurs that renders it impossible for a reviewing court to grant relief."
B P 7 v. Bureau of State Lottery
,
Case-law data current through December 31, 2025. Source: CourtListener bulk data.