The decedent passed away on October 2, 2005. His estate however, failed to file a NOI until July 17, 2009. Plaintiff filed a wrongful death suit against the Board of Regents of the University of Michigan in the Court of Claims on September 24, 2010.

In McCahan, the plaintiff sent a letter to the University of Michigan 5 months after suffering injuries involving a university vehicle. However, the plaintiff did not file the NOI with the Court of Claims for almost 12 months after the accident. The court held that since the NOI was not filed within 6 months of the alleged injuries, as required by MCL 600.6431, the plaintiff could not plead avoidance of governmental immunity.

As the Michigan Supreme Court has yet to rule on McCahan, the court in Ramsey was required to follow the ruling of the appellate court, dismissing the plaintiff’s claim in avoidance of governmental immunity for failing to file the NOI within 6 months.

James Woods filed a lawsuit against Kent Hospital in Rhode Island following the death of his brother, Michael. The lawsuit arose from Michael’s death due to a heart attack suffered while in the hospital. Woods sued the emergency room staff for negligence. However, in 2009, Woods settled the lawsuit after a hospital executive made a sincere apology and agreed to create an institute in Michael’s name.

The bill being considered by the Rhode Island General Assembly is not a new concept. In fact, Michigan enacted its own version of the law in 2011. MCL 600.2155 provides:

(1) A statement, writing, or action that expresses sympathy, compassion, commiseration, or a general sense of benevolence relating to the pain, suffering, or death of an individual and that is made to that individual or to the individual’s family is inadmissible as evidence of an admission of liability in an action for medical malpractice.

Although this statute allows a medical provided to be sympathetic to a patient or his or her family, a statement of fault, negligence or culpable conduct is still admissible. MCL 600.2155(2).

The plaintiff alleged that he tripped on a portion of the sidewalk that was in disrepair. The plaintiff notified the City in writing of the incident, stating that it occurred “while walking east on Huron Street,” at “35 Huron, Pontiac, Michigan.”

The plaintiff brought this claim under the highway exception to governmental immunity. MCL 691.1402(1). However, to bring a claim under this exception, the plaintiff must properly notify the defendant of the injury. MCL 691.1404(1). The notice must “specify the exact location and nature of the defect, the injury sustained and the names of the witnesses known at the time by the claimant.” MCL 691.1404(1).

Defendant moved for summary disposition pursuant to MCR 2.116(C)(7), on the basis of governmental immunity, arguing that the plaintiff failed to comply with MCL 691.1401(1) because the notice lacked sufficient detail. The notice merely stated that the alleged  injury occurred at 35 Huron, Pontiac, Michigan. It failed to state whether it was East or West Huron, of which both are legitimate addresses. Additionally, there was no indication as to whether the alleged defect was on the north or south side of the street. Finally, photographs provided of the location of the alleged defect did not cure the otherwise-deficient notice. The photographs were provided to the City after the 120 day period and therefore cannot be part of the required notice.

The plaintiff delivered a notice of intent to sue (NOI) to the defendants on June 8, 2005. Then, on October 21, 2005, plaintiff delivered a supplemental NOI, which provided a more detailed account regarding proximate cause. Subsequently, on April 7, 2006, plaintiff filed a complaint with the Oakland County Circuit Court, accompanied by two affidavits of merit (AOM).

Defendants filed a motion for summary disposition, arguing that the plaintiff’s NOIs and AOMs did not comply with the governing statutes, MCL 600.2912b and MCL 600.2912d. The trial court denied the motion. Defendants then applied for leave to file an interlocutory appeal, which was denied by the Court of Appeals. The Michigan Supreme Court then remanded the case to the Court of Appeals, which subsequently granted leave for defendants to file a delayed cross-appeal.

On remand from the Michigan Supreme Court, the appellate court determined that the AOMs were insufficient because neither described “[t]he manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the notice,” as required by MCL 600.2912d(1)(d). Further, “it is insufficient to merely allege that the defendant’s alleged negligence caused the injury,” and the AOMs did not explain “how Dr. Bauer’s decision not to admit the decedent on January 22, 2002, or obtain appropriate consultations was the proximate cause of the decedent’s death.”

The Michigan Supreme Court agreed that the failure to provide any statement regarding the manner in which the breach of the standard of care was the proximate cause of the injury alleged, rendered the AOMs deficient. The Court listed four main points explaining the reasoning for dismissal of plaintiff’s case:

1. The failure to file a timely AOM or to file a timely AOM that satisfies the requirements of MCL 600.2912d(10) generally results in dismissal.

2. Dismissal must be without prejudice unless other grounds for dismissal exist, such as the expiration of the limitations period.

3. Timely filing of a defective AOM with the complaint tolls the limitations period unless and until the court finds the AOM defective.

4. The timely filing of a defective AOM does not toll a savings period.

The Court rejected plaintiff’s argument that MCR 2.118 permits the retroactive amendment of a defective AOM. MCR 2.118 permits a party to amend a pleading. However, MCR 2.110(A) provides a list of documents that are considered pleadings, of which an AOM is not included. Further, MCL 600.2912d(2) and (3) specifically permit extra time to submit an AOM based on certain circumstances. Allowing for an AOM to be retroactively amended pursuant would be in direct conflict with MCL 600.2912d.

The Court also reject plaintiff’s argument for amendment pursuant to MCL 600.2301, which gives the court “power to amend any process, pleading or proceeding…” However, the Court stated that it has long been recognized that “an attachment to a complaint or pleading is neither a ‘process’ nor a ‘proceeding’ under MCL 600.2301.”

Finally, the Court reject the argument that amendment should be permitted under the 2010 amendments of MCR 2.112 and MCR 2.118. MCR 2.112(L)(2)(b) now provides, “[a]n affidavit of merit or meritorious defense may be amended in accordance with the terms and conditions set forth in MCR 2.118 and MCL 600.2301. In turn, MCR 2.118(D) states, “[i]n a medical malpractice action, an amendment of an affidavit of merit or affidavit of meritorious defense relates back to the date of the original filing of the affidavit. These amendments became effective on May 1, 2010. Thus, they do not apply to allow plaintiff to retroactively amend the AOMs.

As a takeaway, although the plaintiff in this case was not allowed to amend its defective AOMs retroactively, the 2010 amendments to the Michigan Court Rules provide for a greater opportunity for amendments to the AOM. Additionally, MCR 2.112(L)(2)(b) now provides that all challenges to an AOM must be filed within 63 days of service of the affidavit.

September 2011.  Several of our attorneys have again been recognized in Michigan Super Lawyers 2011, a Thomson Reuters publication.

• Richard M. O’Connor received special recognition as one of the Top 100 Lawyers in Michigan as well as a top medical malpractice attorney by Michigan Super Lawyers magazine.

• Julie McCann O’Connor received special recognition as one of the Top 50 female attorneys, as well as a top appellate law practitioner.

• James E. Tamm was acknowledged as a Top medical malpractice attorney by Michigan Super Lawyers.

Designation as a super lawyer is limited to the top five percent of attorneys in the state and is based on state-wide balloting, independent research and a peer review process.  For more detailed information on the selection process please visit the Super Lawyers website (www.superlawyers.com).