Nancy Sanders v. McLaren-macomb

STATE OF MICHIGAN
COURT OF APPEALS
NANCY SANDERS, FOR PUBLICATION
February 27, 2018
Plaintiff-Appellee, 9:15 a.m.
v No. 336409
Macomb Circuit Court
MCLAREN-MACOMB and MOUNT CLEMENS LC No. 2015-004372-NH
REGIONAL MEDICAL CENTER,
Defendants,
and
RICHARD S. VEYNA, M.D., and MICHIGAN
HEAD AND SPINE INSTITUTE, also known as
UNIVERSITY NEUROSURGICAL
ASSOCIATES, PC, and UNIVERSITY
NEUROSURGICAL ASSOCIATES, PC,
Defendants-Appellants.
Before: GLEICHER, P.J., and BORRELLO and SWARTZLE, JJ.
BORRELLO, J.
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 granted2 the trial court’s order 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
1
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.
2
Sanders v McLaren-Macomb, unpublished order of the Court of Appeals, entered March 3,
2017 (Docket No. 336409).
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comply with MCR 2.112(L)(2)(a) in challenging plaintiff’s notice of intent to file a claim (NOI).
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 Hospital3 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 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.
3
McLaren-Macomb is an assumed name of Mount Clemens Regional Medical Center.
4
Michigan Head and Spine Institute is an assumed name of University Neurosurgical Associates,
PC.
5
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.
6
This allegation in plaintiff’s complaint pertained to all defendants, including those who are not
parties to this appeal.
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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
The two NOIs that were sent to the 44555 Woodward address were returned as
undeliverable, but none of the other NOIs were 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 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.”
On March 4, 2016, after filing their answers, defendants Dr. Veyna and MHSI
collectively moved for summary disposition pursuant to MCR 2.116(C)(8), arguing that plaintiff
failed to give defendants the requisite notice in the manner prescribed under 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
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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 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 thus defendants’
motion must 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 mailed the NOIs to defendants’ last known professional business
addresses as reasonably ascertained from McLaren-Macomb Hospital’s website, Google
searches, and the Michigan Department of Licensing and Regulatory Affairs website. Plaintiff
also mailed an NOI to McLaren-Macomb Hospital, 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 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 it determined that the motion would be treated as one brought
under MCR 2.116(C)(10). The trial court concluded that summary disposition in defendants’
favor was warranted because plaintiff 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
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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) requiring a challenge to the NOI to be made by a motion filed at the time that 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 from the trial court’s order, arguing that MCR
2.112(L)(2)(a), which applies in “a medical malpractice action,” was inapplicable in this case
where the NOI was not properly served or actually received by defendants because plaintiff
failed to comply with MCL 600.2912b and therefore a medical malpractice action could not have
been commenced.
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 “[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, 477
Mich. 8; 727 NW2d 132 (2007).
II. STANDARD OF REVIEW
We review de novo a trial court’s decision on a motion for summary disposition. Saffian,
477 Mich. at 12. The trial court treated defendants’ motion for summary disposition as one
brought pursuant to MCR 2.116(C)(10), under which “[s]ummary disposition is appropriate if
there is no genuine issue regarding any material fact and the moving party is entitled to judgment
as a matter of law,” Odom v Wayne Co, 482 Mich. 459, 467; 760 NW2d 217 (2008) (quotation
marks and citation omitted). In deciding a motion under MCR 2.116(C)(10), a court reviews
“the pleadings, admissions, and other evidence submitted by the parties in the light most
favorable to the nonmoving party.” Id. at 466-467 (quotation marks and citation omitted).
This Court reviews a trial court’s ruling on a motion for reconsideration for an abuse of
discretion. In re Estate of Moukalled, 269 Mich. App. 708, 713; 714 NW2d 400 (2006). “[A]n
abuse of discretion occurs only when the trial court’s decision is outside the range of reasonable
and principled outcomes.” Saffian, 477 Mich. at 12. MCR 2.119(F)(3) requires the party moving
for reconsideration to “demonstrate a palpable error by which the court and the parties have been
misled and show that a different disposition of the motion must result from correction of the
error.” The trial court has “considerable discretion in granting reconsideration to correct
mistakes, to preserve judicial economy, and to minimize costs to the parties.” In re Estate of
Moukalled, 269 Mich. App. at 714 (quotation marks and citation omitted).
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Finally, we review de novo both questions of law and the interpretation of statutes and
court rules. Haksluoto v Mt Clemens Regional Med Ctr, 500 Mich. 304, 309-310; 901 NW2d 577
(2017).
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.” Tyra v Organ Procurement Agency of
Mich, 498 Mich. 68, 94; 869 NW2d 213 (2015). 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 v Naini, 490 Mich. 239, 257; 802 NW2d 311 (2011) (quotation
marks and citation omitted).
MCR 2.112(L)(2)(a) provides in pertinent part that “[i]n a medical malpractice action,
unless the court allows a later challenge for good cause . . . 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 to the court rules that became effective on May 1, 2010.
Administrative Order No. 2009-13, 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, 490 Mich. 61, 70; 803 NW2d 271 (2011).
“[W]e look to the plain language of the court rule in order to ascertain its meaning and the intent
of the rule must be determined from an examination of the court rule itself and its place within
7
MCL 600.2912b(3), (8), (9) describe specific situations where the 182-day notice period may
be shortened, but the length of the notice period is not pertinent to the issue raised on appeal.
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the structure of the Michigan Court Rules as a whole.” Decker v Trux R Us, Inc, 307 Mich. App.
472, 479; 861 NW2d 59 (2014) (quotation marks and citation omitted). “If the rule’s language is
plain and unambiguous, then judicial construction is not permitted and the rule must be applied
as written.” Id. (quotation marks and citation omitted).
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 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 255-
258 (explaining the difference between the effect of a failure to comply with “the content
requirements of MCL 600.2912b(4)”8 and the effect of a failure to comply with “the notice-
waiting-period requirements” on the tolling of the statute of limitations); Tyra, 498 Mich. at 98
(VIVIANO, J., concurring in part and dissenting in part) (“Generally speaking, there are two ways
in which a plaintiff can fail to comply with the notice requirements of § 2912b: timing or
content.”). The purpose of the requirement in MCL 600.2912b that an individual provide
advance notice to a potential defendant before filing a medical-malpractice complaint is to
encourage settlement and reduce litigation costs. DeCosta v Gossage, 486 Mich. 116, 122; 782
8
MCL 600.2912b(4) provides:
(4) 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.
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NW2d 734 (2010); see also Bush v Shabahang, 484 Mich. 156, 174; 772 NW2d 272 (2009)
(stating that the “purpose of § 2912b was to provide a mechanism for promoting settlement
without the need for formal litigation, reducing the cost of medical malpractice litigation, and
providing compensation for meritorious medical malpractice claims that would otherwise be
precluded from recovery because of litigation costs”) (quotation marks and citation omitted).
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, 253 Mich. App. 211, 223; 655
NW2d 582, 590 (2002) (quotation marks and citation omitted; alteration in original; emphasis
added); see also People v Monaco, 474 Mich. 48, 55; 710 NW2d 46 (2006) (“ ‘There is no
broader classification than the word “all.” In its ordinary and natural meaning, the word “all”
leaves no room for exceptions.’ ”) (Citation omitted). The phrase “all challenges to a notice of
intent to sue” in MCR 2.112(L)(2)(a) is therefore broad enough to encompass any of these
grounds for challenging the notice given by a plaintiff, including a claim that no such notice was
received. Peters, 253 Mich. App. at 223. There is no language in the court rule to indicate that its
application is limited only to challenges to the NOI that are based on the content of the NOI.
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, 286 Mich. App. 13, 25; 777 NW2d 722
(2009).
Thus, MCR 2.112(L)(2)(a) plainly requires a defendant to make any challenge to the
sufficiency of the notice provided of plaintiff’s intent to sue 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, 307 Mich. App. at 479. As Chief Justice KELLY explained in
concurring to the adoption of the amendment to MCR 2.112 that is at issue in this case,
[t]he amendments of MCR 2.112 and 2.118 serve to inject logic and equity into
the procedural requirements governing 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 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. [AO 2009-13, 485
Mich. at cclxxvii (KELLY, C.J., concurring).]
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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 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,
after filing their answers, defendants collectively moved for summary disposition, arguing that
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, 286 Mich. App. at 25. By
raising their challenge to the NOI in a motion filed after their answers, defendants failed to
comply with MCR 2.112(L)(2)(a).
Furthermore, defendants argued in the trial court that good cause existed thus justifying
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 thus,
this Court refers to the dictionary and case law to ascertain its meaning. In re FG, 264 Mich. App.
413, 419; 691 NW2d 465 (2004). We have previously noted that “good cause” may be defined
as “ ‘[a] legally sufficient reason,’ ” id., quoting Black’s Law Dictionary (7th ed.) (alteration in
original), or “ ‘a substantial reason amounting in law to a legal excuse for failing to perform an
act required by law,’ ” In re FG, 264 Mich. App. at 419 (citations omitted).
Here, 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 the request of Suarbier. Furthermore, the documents that Turner sent to 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 thus 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 FG, 264 Mich. App. at 419. Defendants simply neglected to follow the applicable court rule.
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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 where she failed to give
defendant 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 (quotation marks and citation omitted). More specifically, “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.” Tyra, 498 Mich. at 94. With respect to the requirement of
providing a timely NOI, our Supreme Court has explained that “Michigan employs a ‘mailbox
rule’ for providing this notice of intent.” Haksluoto, 500 Mich. at 310. MCL 600.2912b(2)
specifically provides that “[p]roof of the mailing constitutes prima facie evidence of compliance
with this section.”
In Saffian, 477 Mich. at 9, the Michigan Supreme Court addressed the question of
“whether defendant, who chose not to respond to a summons and complaint because he believed
it was accompanied by a technically deficient affidavit of merit under MCL 600.2912d(1),[9]
could be defaulted.” The plaintiff in Saffian had filed a medical malpractice action, and an
9
MCL 600.2912d(1) provides:
(1) 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.
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affidavit of merit accompanied the complaint. Id. at 10. The defendant did not timely answer,
and the plaintiff filed a default. Id. On appeal, the defendant argued that if the affidavit of merit
is technically deficient, then no action was ever “commenced” and there was no duty to answer
the complaint. Id. at 13. Our Supreme Court held that “where an affidavit of merit is filed with
a medical malpractice complaint, a defendant must timely answer or otherwise file some
responsive pleading to the complaint, or else be subject to a default.” Id. at 16. The Saffian
Court reasoned that the defendant was not authorized “to determine unilaterally whether the
plaintiff’s affidavit of merit satisfies the requirements of MCL 600.2912d.” Id. at 13. The Court
further reasoned that an affidavit is presumed valid when it is filed, that “[i]t is only in
subsequent judicial proceedings that the presumption can be rebutted,” and that it is for the court
to determine whether the pleadings are sufficient. Id. No such presumption would exist if no
affidavit had been filed. Id. Additionally, the Saffian Court explained that “this more orderly
process of honoring the presumption of the validity of pleadings,” and requiring the defendant to
first comply with the Court Rule requiring the timely filing of an answer before formally
challenging the plaintiff’s affidavit of merit,, “reduces the chaotic uncertainty that allowing the
defendant to decline to answer would introduce.” Id. at 14.
Saffian guides our decision in this case. Placing that case in its historical perspective
helps explain why.
In Scarsella v Pollak, 461 Mich. 547, 549, 552-553; 607 NW2d 711 (2000), the Supreme
Court held that a medical malpractice complaint filed without the affidavit of merit required by
MCL 600.2912d was not “commenced” and therefore did not toll the running of the statute of
limitations. Two published decisions of this Court rapidly followed Scarsella. In both, this
Court held that a defect in an affidavit of merit operated in the same manner as no affidavit at all:
the underlying lawsuit was not commenced. See Mouradian v Goldberg, 256 Mich. App. 566;
664 NW2d 805 (2003), and Geralds v Munson Healthcare, 259 Mich. App. 225; 673 NW2d 792
(2003). When Saffian reached the Supreme Court in 2007, the law as established by this Court
was essentially that a medical malpractice case was not commenced if the affidavit of merit
accompanying the complaint was in any way defective. Nevertheless, in Saffian, our Supreme
Court unequivocally held that defendants were compelled to comply with MCR 2.108(A)(6) and
timely answer the complaint, despite any alleged defect in the affidavit.
In Kirkaldy v Rim, 478 Mich. 581, 583, 586; 734 NW2d 201 (2007), our Supreme Court
overruled Geralds and Mouradian and held that a medical malpractice action is considered
“commenced” even if the affidavit of merit filed with their complaint is defective in some
respect. That our Supreme Court did not need to overrule Geralds and Mouradian when
deciding Saffian underscores our Supreme Court’s acknowledgment that the Court Rules control
practice and procedure in the circuit courts. Saffian implicated a Court Rule that the defendants
believed could be ignored, because the underlying legal principal – that a malpractice case was
not commenced unless the affidavit of merit met the statutory standards – would shield this
choice. The defendant’s “unilateral belief” in the legal rightness of their cause, however, did not
save them.
The case before us is analytically no different than Saffian. Here, defendants 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
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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 issued in Auslander v Chernick, 480 Mich. 910; 739 NW2d 620 (2007),10
however, our Supreme Court adopted the unpublished Court of Appeals dissenting opinion in
that case and held that where plaintiffs completely failed to attach the necessary affidavits of
merit to the complaint, the defendants “were never required to raise or plead their asserted
defenses in the first instance because this medical malpractice action was never properly
commenced,” Auslander v Chernick, unpublished per curiam opinion of the Court of Appeals,
issued May 1, 2007 (Docket No. 274079) (JANSEN, J., dissenting), p 1.
In this case 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, 500 Mich. at 310. After waiting a period of
time, plaintiff subsequently filed her complaint with an affidavit of merit. Therefore, plaintiff
made the necessary filings, and her actions taken as a whole also show prima facie compliance
with the complete set of requirements for commencing a medical malpractice action. Tyra, 498
Mich. at 94. Accordingly, if defendants believed that there were deficiencies that existed in
plaintiff’s compliance with these requirements, defendants were obligated to raise these
challenges according to the appropriate procedural rules and could not unilaterally determine that
plaintiff’s compliance was inadequate. Saffian, 477 Mich. at 13. Plaintiff’s notices of intent were
presumed to be valid until rebutted in judicial proceedings where the court could determine their
legal sufficiency, see Saffian, 477 Mich. at 13, 14. Furthermore, defendants were not excused
from the procedural requirements set forth in MCR 2.112(L)(2) because unlike Auslander, where
plaintiff entirely neglected to make a necessary filing, here, plaintiff complied with MCL
600.2912b by mailing notices of intent to the defendants. Thus, defendants in this case were
entitled to challenge the sufficiency of the notice they received by claiming they never received
the NOIs, but they were required to make that challenge according to the requirements of MCR
2.112(L)(2)(a). See Saffian, 477 Mich. at 13, 14, 16; see also Tyra, 498 Mich. at 102 (VIVIANO,
J., concurring in part and dissenting in part) (“Although an action may be subject to attack
because it was not commenced in compliance with a statutory prerequisite, the consequences that
might flow from the failure to comply with the prerequisite are not self-executing.”).
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
10
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, 251 Mich. App. 187, 196;
650 NW2d 364 (2002); People v Giovannini, 271 Mich. App. 409, 414; 722 NW2d 237 (2006).
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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, 466 Mich. 57, 69; 642 NW2d 663 (2002) (“[A] ‘forfeiture’ is the failure to assert a right in
a timely fashion.”). Accordingly, we affirm the trial court’s order granting reconsideration and
denying defendants’ motion for summary disposition.11
Affirmed. Plaintiff, having prevailed, may tax costs. MCR 7.219(A).
/s/ Stephen L. Borrello
/s/ Elizabeth L. Gleicher
/s/ Brock A. Swartzle
11
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, 231 Mich. App. 356, 359; 586 NW2d 117 (1998). “As a general rule, an
appellate court will not decide moot issues.” Id.
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