Estate of Sandra D Marquardt v. Vellaiah Durai Umashankar Md ( 2019 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
SARON E. MARQUARDT, Personal UNPUBLISHED
Representative of the ESTATE OF SANDRA D. November 26, 2019
MARQUARDT,
Plaintiff-Appellant,
v No. 343248
Washtenaw Circuit Court
VELLAIAH DURAI UMASHANKAR, M.D., LC No. 12-000621-NH
Defendant-Appellee.
Before: BORRELLO, P.J., and K. F. KELLY and SERVITTO, JJ.
PER CURIAM.
In this medical malpractice action, plaintiff appeals as of right the trial court’s order
granting summary disposition in defendant’s favor following remand from our Supreme Court.
For the reasons set forth in this opinion, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
This Court having been previously presented with this matter, and because certain record
evidence is relevant to our disposition of the issues now before us, we reiterate the underlying
factual circumstances of plaintiff’s medical malpractice claim from our prior decision:
On July 20, 2007, the decedent, Sandra Marquardt, underwent mitral valve
replacement surgery at the University of Michigan Hospital. Plaintiff claims that
during the surgery, the deceased was negligently administered the drug Trasylol.
On July 20, 2009, a notice of intent (NOI) to file a medical malpractice claim
pursuant to MCL 600.2912b was sent. The NOI was addressed to the risk
manager of the University of Michigan Health System. In the body of the NOI,
plaintiff expressly stated that decedent “Marquardt intends to file suit against
Jonathan Haft, M.D., Umashankar Vellaiah, M.D., Ranjiv Saran, M.D., and the
University of Michigan Health System, Inc.” In January 2010, the decedent filed
suit against the University of Michigan Board of Regents, but did not name
defendant Umashankar as a defendant. The decedent died on January 27, 2010,
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allegedly as a result of complications resulting from the administration of the
Trasylol. Plaintiff was appointed personal representative of the estate, which was
substituted as plaintiff.
Defendant moved for summary disposition on the grounds
that plaintiff failed to file her cause of action within the statute of
limitations and that she failed to satisfy the notice provision of
MCL 600.6431(3). The trial court granted summary disposition in
favor of defendant on the ground that plaintiff failed to satisfy the
notice provision in MCL 600.6431(3).
This Court affirmed the Court of Claims’ dismissal of that claim because plaintiff
failed to comply with the notice provision of MCL 600.6431(3).
Plaintiff served defendant Umashankar with a new NOI on September 2,
2011, and filed suit against him on June 7, 2012. Defendant Umashankar moved
for summary disposition, which the trial court granted on the ground that
plaintiff’s claim against Umashankar was barred by the statute of limitations. On
appeal, plaintiff challenges the dismissal, arguing that the statute of limitations
tolling provision extended the time period in which she could file suit until
January 18, 2010, and that the wrongful-death savings provision in MCL
600.5852 saved the claim until June 14, 2012, because the decedent died within
30 days of the January 18, 2010 expiration of the statute of limitations.
[Marquardt v Umashankar, unpublished per curiam opinion of the Court of
Appeals, issued March 26, 2015 (Docket No. 319615), pp 1-2, vacated 501 Mich.
870 (2017) (citations omitted).]
In our prior decision, we affirmed the trial court’s summary disposition ruling for
essentially three independent reasons. Id. at 3-4. Seemingly, our rationale depended on our
foundational determination that the two-year limitations period applicable to medical malpractice
actions, MCL 600.5805(8),1 was set to expire (absent tolling) on July 20, 2009 because
plaintiff’s claim had accrued, pursuant to MCL 600.5838a(1), on July 20, 2007. Marquardt,
unpub op at 2 & n 2. We noted, however, that the statute of limitations may be “tolled for up to
182 days pursuant to MCL 600.2912b(1), which requires a plaintiff to provide a NOI to file a
medical malpractice action and then wait up to 182 days before filing suit.” Marquardt, unpub
op at 2-3, citing MCL 600.5856. We then proceeded to conclude that the initial NOI filed on
July 20, 2009, which was the last day of the two-year limitations period, did not serve to toll the
period because “the 182 tolling period did not start until July 21, 2009, which was one day after
the limitations period had expired.” Marquardt, unpub op at 3. Next, we concluded that the
wrongful-death savings provision in MCL 600.5852 did not apply because the limitations period
1
At the time of our previous opinion, this provision was contained in MCL 600.5805(6); the
provision has since been moved to Subsection (8) without any change in the language of this
provision. See 2018 PA 183.
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expired on July 20, 2009, and the decedent’s death on January 27, 2010, therefore “did not occur
before the period of limitations had run or within 30 days after that date.” Marquardt, unpub op
at 3. Finally, we also concluded that regardless of the timeliness of the initial July 20, 2009 NOI,
that NOI “did not toll the statute of limitations with regard to defendant Umashankar because it
was not directed or addressed to him.” Id. at 3, 4.
Our opinion was vacated by our Supreme Court in an order that stated as follows:
By order of November 23, 2016, the application for leave to appeal the
March 26, 2015 judgment of the Court of Appeals was held in abeyance pending
the decision in Haksluoto v Mt Clemens Regional Medical Center (Docket No.
153723). On order of the Court, the case having been decided on June 27, 2017,
500 Mich [304] (2017), the application is again considered. Pursuant to MCR
7.305(H)(1), in lieu of granting leave to appeal, we VACATE the judgment of the
Court of Appeals and REMAND this case to the Washtenaw Circuit Court for
reconsideration in light of Haksluoto. [Marquardt v Umashankar, 501 Mich. 870
(2017).]
Our Supreme Court’s decision in Haksluoto directly pertains to the first two grounds on
which we had affirmed the trial court’s summary disposition ruling. In Haksluoto, the Court
addressed the question whether the limitations period is tolled when the NOI is filed on the last
day of the limitations period, leaving no whole days of the limitations period to toll. Haksluoto v
Mt Clemens Regional Med Ctr, 500 Mich. 304, 307; 901 NW2d 577 (2017). The Haksluoto
Court concluded “that the limitations period is tolled under such circumstances.” Id. The Court
explained its holding as follows:
We hold, therefore, that applying our common-law jurisprudence of
fractional days produces a conclusion that a timely NOI preserves the day the
NOI is filed as a day to be used once the limitations period begins running after
the notice period ends. Notably, this applies to any NOI that triggers tolling under
MCL 600.5856(c), whether filed on the final day of the limitations period or on
some earlier day. The rule is that once the notice period ends and the time for the
plaintiff to bring a claim once again begins to run, it will run for the number of
whole days remaining in the limitations period when the NOI was filed, plus one
day to reflect the fractional day remaining when the NOI itself was filed. There is
no principled reason to treat the last day differently from any other—the abacus
bead does not slide over until the day is over, and that applies with equal force to
the ultimate and penultimate days of the limitations period. [Id. at 322-323.]
Returning to the instant case, the trial court again granted summary disposition in
defendant’s favor following our Supreme Court’s remand order. The trial court concluded that
Haksluoto did not govern the outcome of its prior decision. The trial court further concluded that
summary disposition in defendant’s favor was warranted on reconsideration because there was
“no dispute that Plaintiff’s NOI sent on July 20, 2009 was directed and addressed only to the risk
manager at University of Michigan Health System,” the NOI was not addressed or directed to
defendant, and the NOI consequently did not toll the statute of limitations with respect to
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defendant. In support of its ruling, the trial court adopted this Court’s reasoning from our prior
opinion with respect this specific issue.
II. STANDARD OF REVIEW
We review a trial court’s summary disposition ruling de novo. Maiden v Rozwood, 461
Mich. 109, 118; 597 NW2d 817 (1999). When an action is barred by a statute of limitations,
summary disposition is properly granted under MCR 2.116(C)(7). Al-Shimmari v Detroit Med
Ctr, 477 Mich. 280, 288; 731 NW2d 29 (2007). “When reviewing a motion under MCR
2.117(C)(7), this Court must accept the plaintiff’s well-pleaded allegations as true and construe
them in the plaintiff’s favor.” Sills v Oakland Gen Hosp, 220 Mich. App. 303, 307; 559 NW2d
348 (1996). In this context, we accept the contents of the complaint as true “unless contradicted
by documentation submitted by the movant.” Maiden, 461 Mich. at 119. “If the facts are not in
dispute, whether the statute bars the claim is a question of law for the court.” Sills, 220 Mich
App at 307. Questions of law are also reviewed de novo. Id.
III. ANALYSIS
In this case, the parties agree that plaintiff’s claim accrued on July 20, 2007, the date of
her surgery. MCL 600.5838a(1). The general limitations period for medical malpractice actions
is two years. MCL 600.5805(8). Accordingly, and as the parties agree, the period of limitations
for this action was set to expire on July 20, 2009, unless the limitations period was tolled.
Plaintiff filed his complaint and initiated this action against defendant on June 7, 2012.
Thus, absent any applicable tolling, the parties also agree that plaintiff failed to file this
action before the limitations period expired. On appeal, plaintiff argues the same basic theory
that he argued in his prior appeal, contending that this action against defendant was timely filed.
Plaintiff’s theory begins with the foundational premise that the July 20, 2009 NOI tolled the
statute of limitations with respect to defendant. While it seems that this NOI was timely under
Haksluoto, 500 Mich. at 307, 322-323, the holding in that case has no bearing on the question
whether the NOI was effective as to defendant specifically. The timeliness of the NOI, and its
effect with respect to this particular defendant, are two distinct questions.
“MCL 600.2912b(1) requires a claimant to submit an NOI to a potential defendant before
commencing a medical malpractice suit. This requirement is mandatory and applies equally to
individuals and professional entities, including professional corporations.” Driver v Naini, 490
Mich. 239, 247; 802 NW2d 311 (2011) (citations omitted). Filing an NOI before the limitations
period has expired tolls the statute of limitations for the notice period, which may be up to 182
days, “if during that period a claim would be barred by the statute of limitations or repose.”
MCL 600.5856(c); see also MCL 600.2912b; Haksluoto, 500 Mich. at 312, 322-323; Driver, 490
Mich. at 249. But “a medical malpractice plaintiff must provide every defendant a timely NOI in
order to toll the limitations period applicable to the recipient of the NOI.” Driver, 490 Mich. at
251. “When a claimant files an NOI with time remaining on the applicable statute of limitations,
that NOI tolls the statute of limitations for up to 182 days with regard to the recipients of the
NOI.” Id. at 249.
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In order for plaintiff to prevail, we must find that the July 20, 2009 NOI was effective as
to defendant so as to toll the statute of limitations with respect to defendant. We addressed this
exact question in our previous opinion. We concur with the trial court that Haksluoto has no
bearing on this narrow question. We further agree with the trial court that our prior analysis of
this particular issue was correct; hence we adopt our prior analysis:
The parties also dispute whether the July 20, 2009, NOI did or would have
tolled the statute of limitations with respect to defendant Umashankar at all,
regardless of the timeliness. MCL 600.2912b provides in pertinent part as
follows:
(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.
(2) 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.
Subsection (1) makes it clear that a plaintiff cannot commence an action
unless he or she first gives the party against whom relief is sought (the health
professional or health facility) written notice. Subsection (2) makes it clear that
the plaintiff can mail the NOI to either the last known professional business
address or residential address of the responding party. The parallel construction
of the two provisions makes it clear that the written notice in subsection (1) must
be sent to subject party of the notice. That is, if the responding party is a health
professional, the NOI must be sent to the professional business or residential
address of that professional. If neither address “can reasonably be ascertained,”
then the NOI can be sent to the healthcare facility where the care rendered by that
professional was rendered. However, in order to effectuate the required notice,
the NOI must be directed to or addressed to the defendant professional to whom
the NOI is intended to provide notice.
The July 20, 2009, NOI was addressed and mailed to the risk manager for
University of Michigan Health System. Though the body of the NOI indicated
the decedent’s intent to file suit against Umashankar, “a medical malpractice
plaintiff must provide every defendant a timely NOI in order to toll the limitations
period applicable to the recipient of the NOI . . . .” Our Supreme Court explicitly
stated that it has interpreted MCL 600.2912b:
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as containing a dual requirement: A plaintiff must (1) submit an
NOI to every health professional or health facility before filing a
complaint and (2) wait the applicable notice waiting period with
respect to each defendant before he or she can commence an
action.
Accordingly, the NOI did not toll the statute of limitations with regard to
defendant Umashankar because it was not directed or addressed to him.
[Marquardt, unpub op at 3-4 (ellipsis in original), quoting Driver, 490 Mich. at
251, 255.]
For the reasons stated above, the trial court did not err by granting summary disposition
in defendant’s favor.
Affirmed. Defendant having prevailed in full, may tax costs. MCR 7.219(A).
/s/ Stephen L. Borrello
/s/ Kirsten Frank Kelly
/s/ Deborah A. Servitto
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