Emily Wood v. Zvi Kennet Dmd Msc ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
EMILY WOOD, a Minor, by her Next Friend UNPUBLISHED
TERRY WOOD, March 17, 2016
Plaintiff-Appellant,
v No. 325296
Oakland Circuit Court
ZVI KENNET, D.M.D., M.S.C., and ZVI LC No. 2014-139234-NH
KENNET, D.M.D., M.S.C., P.C., a/k/a KENNET
ORTHODONTICS,
Defendants,
and
MARVIN S. TAYLOR, D.D.S., P.C., d/b/a
PONTIAC FAMILY DENTAL CENTER,
Defendant-Appellee.
Before: SAAD, P.J., and SAWYER and HOEKSTRA, JJ.
PER CURIAM.
Plaintiff appeals by leave granted the trial court’s order granting partial summary
disposition to defendant Marvin S. Taylor, D.D.S., a professional corporation doing
business as Pontiac Family Dental Center. We reverse and remand for further
proceedings.
I. FACTS
On approximately September 4, 2007, plaintiff began treatment with Dr. Zvi
Kennet of Pontiac Family Dental Center (hereafter defendant). In 2008, Kennet left the
practice and plaintiff began treatment with his replacement, Dr. Anthony Zimbalatti. In
her complaint, plaintiff claimed that after six years of dental and orthodontic treatment
from defendant, she still required two to three additional years of braces and headgear.
On August 30, 2013, plaintiff served defendant with a Notice of Intent
(hereinafter NOI). Kennet was the only treater specifically named in the NOI. In part,
the NOI stated:
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At all pertinent times hereto, Emily Wood received dental care at
Pontiac Family Dental Center. Dr. Kennet, along with all of the other
providers affiliated with Pontiac Family Dental Center, were agents,
ostensible agents, servants, and/or employees of Pontiac Family Dental
Center; thereby imposing vicarious liability on Pontiac Family Dental
Center for the actions of these health care providers.
The NOI also set out the applicable standard of care for dental facilities, orthodontists,
and dentists:
a. The reasonable care, diligence and skill ordinarily and/or
reasonably exercised and possessed by similarly staffed and equipped
dental facilities under the same or similar circumstances.
b. The reasonable care, diligence, learning, judgment, and skill
ordinarily and reasonably exercised and possessed by orthodontists under
the same or similar circumstances.
c. The reasonable care, diligence, learning, judgment, and skill
ordinarily and/or reasonably exercised and possessed by dentist[s] under
the same or similar circumstances.
On March 3, 2014, plaintiff filed a complaint against defendant, alleging it was
vicariously liable for the malpractice of Kennet and Zimbalatti. On March 14, 2014,
defendant was served with the complaint. Defendant failed to respond to the complaint
within 21 days as set forth in MCR 2.108(A)(5), and the trial court entered a default
against it on April 16, 2014. The default was set aside by stipulated order of the parties
on May 6, 2014. On June 9, 2014, defendant filed its answer. More than two months
later, on August 14, 2014, defendant moved for partial summary disposition of all claims
of vicarious liability for the negligence of Zimbalatti pursuant to MCR 2.116(C)(4) and
(10). Defendant argued that the NOI did not sufficiently identify Zimbalatti and failed to
identify the standard of care applicable to and breached by him.
In response, plaintiff argued that defendant’s motion was untimely pursuant to
MCR 2.112(L)(2)(a) and that the NOI was sufficient to hold defendant vicariously liable
for Zimbalatti’s actions.
On December 10, 2014, the trial court held oral argument on defendant’s motion
for partial summary disposition. The trial court ruled that plaintiff’s NOI was insufficient
and dismissed all claims of vicarious liability for the negligence of Dr. Zimbalatti against
defendant.
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II. ANALYSIS
Plaintiff contends the NOI was sufficient and did not require that Zimbalatti be
specifically named in the NOI. We agree that the NOI was sufficient and satisfied the
statutory requirements.1
Under MCR 2.116(C)(10), a moving party is entitled to judgment as a matter of
law if there “is no genuine issue as to any material fact.” “This Court reviews de novo a
trial court’s decision on a motion for summary disposition.” Allen v Bloomfield Hills Sch
Dist, 281 Mich. App. 49, 52; 760 NW2d 811 (2008). “In relation to a motion under MCR
2.116(C)(10), we similarly review the pleadings, admissions, and other evidence
submitted by the parties in the light most favorable to the nonmoving party.” Odom v
Wayne Co, 482 Mich. 459, 466-467; 760 NW2d 217 (2008) (internal quotations omitted).
“Summary disposition is appropriate only if there is no genuine issue regarding any
material fact and the moving party is entitled to judgment as a matter of law.” Id. at 467.
A genuine issue of material fact “exists when the record leaves open an issue on which
reasonable minds might differ.”
In determining whether summary disposition is appropriate, all matters of
statutory interpretation are reviewed de novo. Shorecrest Lanes, 252 Mich. App. at 460.
This Court looks to the plain language of the statute. If the statutory language is
unambiguous, this Court must presume that the Legislature intended the plain meaning of
the statute. DiBenedetto v West Shore Hosp, 461 Mich. 394, 402; 605 NW2d 300 (2000).
MCL 600.2912b sets forth the procedure for filing a medical malpractice action in
Michigan. 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.]
MCL 600.2912b(4) requires the notice to contain a statement of all of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the
claimant.
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Plaintiff also contends that the trial court erred in failing to apply the standard set
forth in MCR 2.112(L)(2) regarding a showing of good cause for defendant’s untimely
challenge to the NOI. Because we conclude that the NOI was sufficient, we need not
address the timeliness issue.
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(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.]
Defendant argues that the NOI does not comply with MCL 600.2912b(4) because:
(1) the NOI failed to specifically identify Zimbalatti; (2) the NOI failed to state the
standard of care applicable to Zimbalatti; and, (3) the NOI failed to describe how
Zimbalatti allegedly breached the standard of care. We disagree.
It is clear from a plain reading of MCL 600.2912b that a plaintiff must give notice
to all parties it intends to commence a medical malpractice lawsuit against and name
those parties in the notice, in addition to the other required elements listed in section (4).
Thus, a plain reading of the statute requires that only named defendants of the lawsuit be
named in the NOI. The Michigan Supreme Court’s analysis of this statute reaches the
same conclusion. In Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich. 679,
682; 684 NW2d 711 (2004), the Supreme Court stated that a notice of intent must
properly set forth allegations regarding the standard of practice or care
applicable to each named defendant, allegations regarding the manner in
which it was claimed that defendants breached the applicable standards of
practice or care, the alleged actions that defendants should have taken in
order to satisfy the alleged standards, or allegations of the manner in
which defendants’ breaches of the standards constituted the proximate
cause of plaintiff’s injury. [Emphasis added.]
It is clear that had plaintiff named Zimbalatti as a defendant in this case, Zimbalatti
would have a proper basis to dismiss the claims against him due to plaintiff’s failure to
comply with MCL 600.2912b(4). Zimbalatti, however, is not a named defendant in this
action. Defendant Pontiac Family Dental Center is a named defendant and was named in
the NOI. Thus, defendant Pontiac Family Dental Center was put on notice that it would
be held vicariously liable for the actions of its “agents, ostensible agents, servants, and/or
employees” who provided treatment to plaintiff. Defendant was aware of the identities of
these “agents, ostensible agents, servants, and/or employees.” The plain language of the
statute only requires the NOI to specifically name defendant Pontiac Family Dental
Center and does not require it to specifically name non-defendant Zimbalatti. Further,
there is no requirement that Zimbalatti be a named defendant for Pontiac Family Dental
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Center to be held vicariously liable for his alleged malpractice. See Nippa v Botsford
Gen Hosp, 257 Mich. App. 387, 391-392; 668 NW2d 628 (2003) (The principal is “liable
because the law creates a practical identity with his [agents], so that he is held to have
done what they have done. . . . For all practical purposes the hospital stands in the shoes
of its agents (the doctors).”).
We reverse the trial court’s grant of partial summary disposition to defendant,
with regard to the vicarious liability claims against defendant for the alleged malpractice
of Zimbalatti, and remand for further proceedings. We do not retain jurisdiction.
Plaintiff may tax costs.
/s/ Henry William Saad
/s/ David H. Sawyer
/s/ Joel P. Hoekstra
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