Robert Hunter v. John M Cilluffo Md ( 2016 )

STATE OF MICHIGAN
COURT OF APPEALS
ROBERT HUNTER, UNPUBLISHED
May 24, 2016
Plaintiff-Appellant,
v No. 326088
Grand Traverse Circuit Court
JOHN M. CILLUFFO, M.D. and JOHN M. LC No. 2014-030474-NH;
CILLUFFO M.D., P.L.C., 2014-030722-NH
Defendant-Appellee.
Before: BOONSTRA, P.J., and WILDER and METER, JJ.
PER CURIAM.
Plaintiff Robert Hunter appeals as of right from two orders. Plaintiff appeals the trial
court’s order granting defendant John M. Cilluffo’s (defendant Cilluffo’s) motion for summary
disposition pursuant to MCR 2.116(C)(7) (claim barred as a matter of law) and MCR
2.116(C)(8) (failure to state a claim on which relief can be granted) in case number 2014-
030474-NH (Case I). Case I alleged medical malpractice relating to defendant Cilluffo’s
conduct “before, during and after” the February 17, 2012, surgery he performed on plaintiff.
While Case I was pending, plaintiff filed a separate action against defendant Cilluffo and
defendant John M. Cilluffo, M.D., P.L.C. (defendant Corporation), under case number 2014-
030722-NH (Case II). Case II alleged medical malpractice specifically during plaintiff’s June
28, 2012, surgical follow-up appointment. In light of its ruling in Case I, the trial court entered
an order dismissing plaintiff’s Case II complaint with prejudice. We affirm.
I. FACTS
Plaintiff alleged that defendant Cilluffo began treating him in either 2005 or 2006 for
“ongoing back problems” and performed three surgeries, the last of which occurred on February
17, 2012. Plaintiff described the February 17, 2012, surgery as a “surgery to address . . . disc
herniations” in his “low back area” that required “decompression and fusion procedures,” and
then went on to describe specific areas of his back where defendant Cilluffo decided to operate
and specific areas where defendant Cilluffo chose not to operate. After the surgery, plaintiff
alleged, he experienced pain and continued to see defendant Cilluffo until June 28, 2012.
Because of the pain and injuries plaintiff allegedly sustained during and following the
February 17, 2012, surgery, plaintiff filed a notice of intent (NOI) to file suit against defendant
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Cilluffo and “John M. Cilluffo, M.D., P.C.,” dated February 17, 2014.1 The NOI stated that
“[i]mmediately following the [February 17, 2012,] surgery, [plaintiff began] complaining about
severe pain and [a] limited range of motion in his low back area[,] began having trouble standing
up straight during the early days of his post-surgical recovery[, and] felt a hard object protruding
from his low back area . . . .” The NOI explained that plaintiff “voiced his post-operative
complications to [defendant] Cilluffo,” but defendant Cilluffo “ignored” plaintiff’s concerns and
“refused to even palpate the area . . . .”
The NOI went on to explain that plaintiff “had several post-operative visits with
[defendant] Cilluffo during which [plaintiff] continued to voice the same complaints,” but
“[a]gain, [defendant] Cilluffo ignored those complaints.” The NOI stated that defendant Cilluffo
sent plaintiff “for conditioning therapy” in “late April 2012,” but the “physical therapy staff . . .
decided that [plaintiff] should not be treated until further diagnostic studies were performed” and
“contact[ed defendant] Cilluffo regarding the need for further diagnostic studies . . . .” This
request, the NOI alleged, “may be why [defendant] Cilluffo ordered a MRI study of the lumbar
spine with and without contrast material and a CT study of the lumbar spine without contrast.”
The NOI explained that two other doctors reviewed the MRI and CT studies; the MRI
was reviewed on June 22, 2012, and the CT was reviewed on June 23, 2012. The NOI stated that
reports concerning the MRI and CT tests “mentioned a kyphotic deformity above the February
17th fusion site” and further stated that the tests “likely” made “the area immediately above the
L-1 vertebrae . . . visible.” According to the NOI, despite these results, defendant “Cilluffo
chose . . . to highlight the seemingly larger disc herniation at the T12-L1 level as a likely cause
for [plaintiff]’s ongoing back pain and inability to stand erect.” Accordingly, defendant
“Cilluffo suggested that [plaintiff] undergo still another surgical procedure to address that
expanding herniation, which [defendant] Cilluffo had chosen to ignore during the February 17th
surgery . . . .” The NOI explained that plaintiff “refused,” and his treatment with defendant
Cilluffo ended in “late June 2012 . . . .”
After plaintiff stopped his treatment with defendant Cilluffo, the NOI alleged, he saw
other doctors who identified problems with defendant Cilluffo’s surgery and with plaintiff’s
back. Another doctor performed back surgery on plaintiff that allegedly involved “remov[ing]
all of the hardware placed by [defendant] Cilluffo” in prior surgeries.
The NOI then explained that the “standards of care for neurosurgeons required the
sagittal balance be carefully considered before, during and after any fusion procedure involving
the lower back when the patient has had two prior fusion procedures of the spine,” “that any
evidence of possible loosening of the fusion hardware . . . be thoroughly investigated and
corrected surgically, if necessary, on an urgent basis if it was determined that the fusion was in
jeopardy due to the loosely fitting hardware,” and that the “maintenance of a good sagittal
1
The action against “John M. Cilluffo, M.D., P.C.” was dismissed, as the entity no longer
existed.
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balance in the spine was particularly important . . . .” The NOI alleged that defendant Cilluffo
breached that standard of care
when he failed to consider the possibility that he might be creating a sagittal
imbalance in [plaintiff]’s spine before, during and after the February 17th
procedure[,] . . . failed to address [plaintiff]’s complaints regarding his inability to
stand erect and [plaintiff’s] complaints of ongoing pain in a timely manner[, and]
failed to even examine [plaintiff]’s low back area regarding [plaintiff]’s claims
that there were hard objects protruding from under his skin.
In contrast, the NOI alleged, defendant Cilluffo
would have complied with the applicable standards of care if he had
considered . . . that [plaintiff]’s third spinal fusion might create [several problems;
taken steps during the surgery to correct those problems;] . . . respond[ed] to
[plaintiff]s’s complaints regarding severe pain in the back following surgery, an
inability to stand erect, and his complaints that he could feel hard material bulging
from under his skin the repaired area[; and] surgically correct[ed] the obvious
defects in a timely manner . . . .
Instead, “[a]s a direct and proximate result of the . . . negligent acts and omissions,” the NOI
alleged, plaintiff suffered numerous injuries.
Plaintiff filed his complaint in Case I on August 18, 2014, without an affidavit of merit
against defendant Cilluffo and “John M. Cilluffo, M.D., P.C.” The Case I complaint alleged that
defendant Cilluffo had a “duty to provide medical/surgical care that was consistent with the
applicable standards of care for specialists in neurological surgery,” requiring that the “sagittal
balance be carefully considered before, during and after any fusion procedure involving the
lower back when [plaintiff] has had two prior fusion procedures of the spine,” and that “any
evidence of possible loosening of the fusion hardware had to be thoroughly investigated and
corrected surgically, if necessary, on an urgent basis if it was determined that the fusion was in
jeopardy due to the loosely fitting hardware.” It further alleged that defendant Cilluffo breached
that duty when he “failed to consider the possibility that he might be creating a sagittal
imbalance in Plaintiffs spine before, during and after the February 17th procedure,” “failed to
address Plaintiff’s complaints regarding his inability to stand erect and his complaints of ongoing
pain in a timely manner,” “failed to even examine Plaintiffs low back area regarding [his] claims
that there were hard objects protruding from under his skin,” and “failed to perform remedial
surgery to correct the defects in a timely manner . . . .”
Plaintiff informed the trial court that he had offered to stipulate to a dismissal of Case I
without prejudice because he failed to file an affidavit of merit within the time permitted in MCL
600.2912d(3) and that he was considering another action due to the defense’s failure to respond
to radiological studies performed on June 22, 2012, and June 23, 2012, that defendant Cilluffo
reviewed on June 28, 2012. Plaintiff believed that his earlier-filed NOI covered such a claim,
which would toll the statute of limitations for 182 days. Instead of agreeing to the dismissal,
defendant Cilluffo filed a motion for summary disposition pursuant to MCR 2.116(C)(7) and
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(C)(8), requesting that all of plaintiff’s claims be dismissed with prejudice. Significantly, he
argued that the NOI did not cover such an action because it never mentioned June 28, 2012.
Before responding, plaintiff, on December 30, 2014, filed his Case II complaint without
an affidavit of merit against defendants. The Case II complaint alleged that “Defendants were
served with [NOIs] pursuant to MCL 600.2912b(1)(4) . . . .” Significantly, plaintiff alleged that
he “continued to see Defendants until sometime in June 28, 2012 [sic].” Plaintiff alleged that
defendant Cilluffo’s duty of care required him, “when confronted with any significant evidence
of loosening of the fusion hardware or a non-union of the fusion, [to] proceed surgically on an
urgent basis to address those conditions,” but that defendant Cilluffo breached that duty “when
he failed to timely address Plaintiff’s complaints regarding an inability to stand erect, hard
objects projecting outward from his spinal area, and complaints of ongoing pain . . . despite
having actually reviewed the MRI and CT imaging studies obtained on June 22, 2012 and June
23, 2012 respectively, which demonstrated” injury, and in “fail[ing] to perform remedial surgery
to correct the apparent defects in a timely manner . . . .”
In responding to the defense motion for summary disposition, plaintiff argued that the
NOI addressed defendants’ June 28, 2012, actions. Therefore, he asserted, the NOI tolled the
statute of limitations, allowing for a dismissal of Case I without prejudice and the filing of Case
II. The trial court disagreed and granted the defense motion for summary disposition in Case I
with prejudice, finding that the NOI contained “very little mention of these two [June 22, 2012,
and June 23, 2013,] studies,” and that plaintiff’s “claim of malpractice against [defendant]
Cilluffo is [that] he failed to read [the studies] properly or misinterpreted them,” but “[n]owhere
in the [NOI] does it say that that’s the standard of care [defendant Cilluffo]’s supposed to have
breached.” Therefore, the court concluded, the NOI was not “sufficient to toll the statute of
limitations with respect to the act of malpractice on June 28, [2012,] and[, thus,] the [limitations
period] actually expired June 28, 2014.” Plaintiff “agree[d] in light of the ruling [that] both
[cases] would be dismissed with prejudice,” so the trial court also dismissed plaintiff’s Case II
complaint with prejudice. This appeal followed.
II. ANALYSIS
Plaintiff argues that his NOI fully complied with MCL 600.2912b(4) with regard to
defendant Cilluffo’s failure to properly review the imaging studies he had in his possession
during plaintiff’s June 28, 2012, clinical visit and defendants’ corresponding failure to provide
proper care on June 28, 2012. We disagree.
We review de novo a trial court’s decision regarding a motion for summary disposition.
Roberts v Mecosta Co Hosp, 470 Mich. 679, 685; 684 NW2d 711 (2004). We also review de
novo issues involving the proper application of a statute. Ligons v Crittenton Hosp, 285 Mich
App 337, 342-343; 776 NW2d 361 (2009).
Before commencing a medical malpractice action, a plaintiff must give the potential
defendant “health professional[s]” or “health facilit[ies]” at least 182 days’ written notice of the
action. MCL 600.2912b(1). Doing so tolls the two-year limitations period, MCL 600.5805(6),
for the 182-day notice period, Roberts, 470 Mich. at 685-686. The written notice must contain a
statement of at least all of the following:
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(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 600.2912b(4).]
Plaintiff bears the burden of establishing all six requirements. Roberts, 470 Mich. at 691.
In determining what is required to comply with MCL 600.2912b(4), the Court in Roberts,
470 Mich. at 701, concluded that the NOI must contain a “degree of specificity which will put the
potential defendants on notice as to the nature of the claim against them.” The NOI must specify
the allegations against each individual defendant, id. at 682, but “because the NOI comes at an
early stage of the malpractice proceeding, the plaintiff does not have to draft the notice ‘with
omniscience.’ ” Decker v Rochowiak, 287 Mich. App. 666, 676; 791 NW2d 507 (2010), quoting
Roberts, 470 Mich. at 691. “Rather, the plaintiff must ‘make good-faith averments that provide
details that are responsive to the information sought by the statute and that are as particularized
as is consistent with the early notice stage of the proceedings.’ ” Decker, 287 Mich. App. at 676,
quoting Roberts, 470 Mich. at 701 (emphasis in Roberts). Doing so “is not an onerous task: all
the [plaintiff] must do is specify what it is that [he or] she is claiming under each of the
enumerated categories . . . .” Roberts, 470 Mich. at 701 (emphasis in original). However,
information that allows only an inference to be drawn regarding the basis for a statutory ground
is insufficient. See id. at 697. Similarly, an NOI that merely informs a potential defendant “of
the nature and gravamen of plaintiff’s allegations” is insufficient. Boodt v Borgess Med Ctr, 481
Mich. 558, 560-561; 751 NW2d 44 (2008). Therefore, the plaintiff must go beyond the
substantial point or essence of a claim, and, instead, the required information for each category
must “be specifically identified in an ascertainable manner . . . .” See Roberts, 470 Mich. at 701.
No particular “method or format” is required to do so. Id.
In this case, defendants do not challenge whether plaintiff’s NOI set forth the information
required under MCL 600.2912b(4)(f). We address plaintiff’s compliance with the remaining
subsections with regard to defendant Cilluffo first.2
2
Plaintiff’s argument that defendant Cilluffo acknowledged notice of claims of alleged
negligence on June 28, 2012, in a previous motion for summary disposition is unpersuasive, and
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While the remainder of plaintiff’s NOI may allow an inference to be drawn that he
alleged malpractice on June 28, 2012, Roberts, 470 Mich. at 697, or may assert the “gravamen”
or substantial point or essence of plaintiff’s claims, Boodt, 481 Mich. at 560-561, such assertions
are insufficient to comply with the remaining subsections of MCL 600.2912b(4). It is unclear
what exactly plaintiff is “claiming” under the remaining subsections with regard to any actions
by defendant Cilluffo on June 28, 2012, and the NOI failed to “specifically identif[y]” the factual
basis for such a claim. Roberts, 470 Mich. at 701. Therefore, plaintiff’s NOI was deficient.
With regard to whether plaintiff’s NOI “contain[ed] a statement of . . . [t]he factual basis
of the claim” against defendant Cilluffo, MCL 600.1912b(4)(a), the NOI failed to allege specific
acts of malpractice on June 28, 2012. In fact, the parties agree that the NOI never mentioned the
date June 28, 2012. Instead, plaintiff’s NOI stated that plaintiff began “complaining about
severe pain and [a] limited range of motion in his low back area[, plaintiff] began having trouble
standing up straight during the early days of his post-surgical recovery[, and] felt a hard object
protruding from his low back area” “[i]mmediately following the [February 17, 2012,] surgery.”
The NOI further explained that plaintiff “voiced his post-operative complications to [defendant]
Cilluffo” during “several post-operative visits . . . .” However, plaintiff never tied these
complaints to any particular date or office visit. Cf. Ligons, 285 Mich. App. at 341, 344-345. The
NOI claimed that defendant “Cilluffo ordered a MRI study of the lumbar spine with and without
contrast material and a CT study of the lumbar spine without contrast,” claimed that the images
“mentioned a kyphotic deformity,” and described how other doctors reviewed these images. The
NOI appears to suggest that defendant Cilluffo reviewed these images, focused on an alternative
back problem, and recommended a surgery that plaintiff rejected. However, the NOI never
clearly stated that defendant Cilluffo reviewed the MRI or CT scans, clarified how his review, or
lack thereof, constituted malpractice, or tied this review and any subsequent recommendation to
a June 28, 2012, office visit. Therefore, the NOI failed to comply with MCL 600.2912b(4)(a).
“Proof of the standard of care is required in every medical malpractice lawsuit . . . .”
Roberts, 470 Mich. at 694 n 11. With regard to whether the NOI included “a statement of . . .
[t]he applicable standard of . . . care,” MCL 600.2912b(4)(b), the NOI again failed to
“specifically identif[y]” the standard of care that defendant was required to follow during the
June 28, 2012, appointment, Roberts, 470 Mich. at 701. The NOI stated that “standards of care for
neurosurgeons required the sagittal balance be carefully considered before, during and after any
fusion procedure involving the lower back when the patient has had two prior fusion procedures of
the spine,” “that any evidence of possible loosening of the fusion hardware . . . be thoroughly
investigated and corrected surgically, if necessary, on an urgent basis if it was determined that the
fusion was in jeopardy due to the loosely fitting hardware,” and that the “maintenance of a good
sagittal balance in the spine was particularly important.” When considered in the context of
plaintiff’s allegations in Case II that defendant Cilluffo was required to perform certain tasks when
reviewing the MRI and CT scans conducted on June 22, 2012, and June 23, 2012, and was required
to act during a June 28, 2012, appointment, these standards are analogous to the inappropriately
plaintiff cites no authority to support his argument that we should consider defendant’s actions
following an NOI, instead of the NOI’s text, in assessing compliance with MCL 600.2912b(4).
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general standards alleged in Roberts, id. at 694, that defendants must “properly care for [the plaintiff]
. . . and . . . render competent advice and assistance.” Therefore, the NOI failed to comply with
MCL 600.2912b(4)(b).
With regard to how the NOI phrased the “manner in which it is claimed that the applicable
standard of . . . care was breached by” defendant Cilluffo, MCL 600.2912b(4)(c), plaintiff’s NOI
claimed “that [defendant] Cilluffo breached the applicable standards of care when he failed to
consider the possibility that he might be creating a sagittal imbalance in [plaintiff]’s spine before,
during and after the February 17th procedure[, and] . . . failed to address [plaintiff’s post-surgery]
complaints.” Such information references unfortunate circumstances that occurred to plaintiff
post-surgery, Roberts, 470 Mich. at 697, and may allow an inference to be drawn that plaintiff
alleged a breach on June 28, 2012, id., or may assert the “gravamen” of plaintiff’s claims, Boodt,
481 Mich. at 560-561, but such assertions are insufficient to establish the manner in which
defendant Cilluffo breached a required standard of care on June 28, 2012. For example, the NOI
failed to reference defendant Cilluffo’s use of the CT and MRI studies to facilitate his
recommendations. See Roberts, 470 Mich. at 697 (finding the statement of breach inadequate
because “[t]here [wa]s no allegation, for example, that any of the defendants failed to perform
critical tests, incorrectly diagnosed her condition, or failed to refer her to a specialist in keeping
with the appropriate standard of care). Therefore, the NOI failed to comply with MCL
600.2912b(4)(c).
With respect to whether the NOI “contain[ed] a statement of . . . [t]he alleged action that
should have been taken to achieve compliance with the alleged standard of practice or care,”
MCL 600.2912b(4)(d), plaintiff’s NOI stated that defendant Cilluffo should have “considered . . .
that [plaintiff]’s third spinal fusion might create” several problems, taken steps during the
surgery to correct those problems, “respond[ed] to [plaintiff]’s complaints,” and “surgically
correct[ed] the obvious defects in a timely manner . . . .” However, the NOI “failed to identify
any particular action that defendant [Cilluffo] should have taken to achieve compliance with the
standard of care” on June 28, 2012. Roberts, 470 Mich. at 698 (emphasis removed). Therefore,
defendant Cilluffo was inappropriately “left to guess . . . which aspect of plaintiff’s treatment
was deficient” on June 28, 2012, and left to guess “what plaintiff alleges defendant[ Cilluffo]
should have done differently.” Id.; cf. Ligons, 285 Mich. App. at 345. Thus, the NOI failed to
comply with MCL 600.2912b(4)(d).
Finally, this Court must consider whether the NOI “contain[ed] a statement of . . . [t]he
manner in which it is alleged the breach of the standard of . . . care was the proximate cause of
the injury claimed.” MCL 600.2912b(4)(e). Plaintiff’s NOI no doubt described numerous
injuries that he sustained, but he claimed that those injuries were caused “[a]s a direct and
proximate result of the . . . negligent acts and omissions” described in the NOI. Because the NOI
insufficiently described the alleged negligence of defendant Cilluffo on June 28, 2012, such a
statement was insufficient to tie plaintiff’s injuries to defendant Cilluffo’s conduct on that date.
Therefore, the NOI failed to comply with MCL 600.2912b(4)(e) and plaintiff’s NOI was
deficient.
Plaintiff did not argue that the statute of limitations should be tolled in light of the NOI’s
deficiencies, Bush v Shabahang, 484 Mich. 156, 170; 772 NW2d 272 (2009), request an
opportunity to amend his NOI in lieu of dismissal, or argue that an amendment would be “in the
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furtherance of justice,” id. at 176-177. Therefore, we uphold dismissal of plaintiff’s claims
against defendant Cilluffo.
We now turn to evaluating the NOI’s claims against defendant Corporation, given that
NOIs must set forth allegations as “applicable to each named defendant,” including specific
allegations against professional corporations in addition to the doctors they employ. Roberts,
470 Mich. at 682, 692-694. Defendant Corporation was not a party to the action in which
defendant Cilluffo filed the motion for summary disposition. Plaintiff listed “John M. Cilluffo,
M.D., P.C.” in his NOI. (Emphasis added.) Defendant Corporation was added in Case II.
Therefore, the NOI was deficient with regard to defendant Corporation, MCL 600.2912b(4), and
plaintiff failed to give defendant Corporation at least 182 days written notice before filing his
Case II complaint, MCL 600.2912b(1).
“Because 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, plaintiff failed to toll
the limitations period . . . .” Driver v Naini, 490 Mich. 239, 251; 802 NW2d 311 (2011)
(emphasis in original). Plaintiff’s Case II complaint against defendant Corporation was time-
barred, MCL 600.5805(6), and, thus, the trial court appropriately dismissed plaintiff’s claim
against defendant Corporation.
Affirmed.
/s/ Mark T. Boonstra
/s/ Kurtis T. Wilder
/s/ Patrick M. Meter
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