Michigan Supreme Court applies more reasonable interpretation to Notice of Intent requirement
A majority of the Supreme Court held, on July 29, that Gary Bush's guardian could sue his physicians for malpractice. Bush suffered catastrophic injury during heart surgery when physicians were allegedly negligent in lacerating his aorta and then negligent in repairing the laceration they caused. Bush had been admitted for repair of an aortic aneurysm and replacement of a heart valve.
The lower courts had concluded that the 13-page Notice of Intent (NOI) filed by Bush's attorneys constituted a "good faith" effort to comply with the notice statute, but that it had several technical deficiencies that required dismissal of his claim against some of the multiple defendants. The Defendants argued that because there was a technical flaw in his Notice (NOI), it did not toll the statute of limitations, and therefore his claim must be dismissed "with prejudice" [meaning with no right to file a subsequent, amended pleading that cured the technical defect(s)].
The Defendants pointed to two harsh decisions previously issued by the so-called "Engler majority," holding that any defect in a NOI precluded tolling of the statute of limitations and made mandatory a dismissal with prejudice. The current Supreme Court majority noted that subsequent to these decisions, the Michigan legislature amended the statutory notice provision to allow tolling any time that a NOI was timely filed: using strict statutory construction, the Court was required to give meaning to the change effected by the legislature.
On that basis, the Court noted that Bush's guardian's NOI was clearly written in good faith, that the Defendants are sophisticated health care providers capable of interpreting the Notice, and that the Revised Judicature Act would allow amendment of any pleading where justice so requires and no party's substantial rights would be prejudiced. The court also noted that there was a legislative effort to create a balanced scheme of malpractice litigation--and that the penalty for a Defendant filing a defective (mandatory) response to the Notice is only the loss of 30 days from the six-month pre-suit waiting period. On this basis, the majority concluded that it could not, in good faith, punish a malpractice victim for a technical defect in a good faith Notice by a permanent dismissal, if the health care provider's only penalty for a similar transgression was merely the loss of 30 days of mandatory delay.
In an ancillary ruling, all of the justices agreed in rejecting the Defendants' ludicrous claim that the Plaintiff could not file suit 30 days early if the Defendant failed to make a good faith effort to file the mandatory NOI response. All agreed that in the instant case, the only response to Bush's NOI was a clearly deficient one-page document that cursorily rejected some of the claims against some of the medical care providers. The majority noted that the Defendants had clearly "waived" the statutory opportunity to negotiate a settlement pre-suit.
The Defendants argued that Bush was required to seek a ruling that their response was deficient before he could file his lawsuit, and therefore the lawsuit must be dismissed with prejudice. {The Court pointedly noted that the Defendants did not even ARGUE that the response was adequate or made in good faith.} All of the Justices acknowledged that it would be impossible for a victim to procure a compliance ruling within 30 days: thus, honoring the defendants' argument would mean that there would be no sanction, whatsoever, for a defendant's failure to comply with the mandatory NOI-response requirement, and the defendant's interpretation would render that portion of the statutory scheme nugatory or without meaning. Even the remnants of the Engler Majority weren't willing to do that.