No. 136617, 136653, 136983

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136617 - Plaintiff-Appellee's Reply Brief>>
136617 - Defendants-Appellants' Brief on Appeal>>

136653 - Defendant-Appellant's Brief on Appeal>>
136653 - Plaintiff-Appellee's Reply Brief>>

136983 - Plaintiff-Appellee's Reply Brief>>
136983 - Defendant-Appellant's Brief on Appeal>>

Michigan Association for Justice's Amicus Curiae Brief>>

University of Michigan's Amicus Curiae Brief>>

Background

On August 7, 2003, 33-year-old Gary E. Bush underwent surgery to repair an aortic aneurysm at Spectrum Health’s Butterworth Campus. Drs. Behrooz-Bruce Shabahang and John Charles Heiser, surgeons employed by West Michigan Cardiovascular Surgeons, performed the operation. According to the medical malpractice claim later brought on Bush’s behalf, Shabahang allegedly lacerated the aneurysm, which made it necessary for Heiser to cannulate Bush’s femoral artery and femoral vein so that Bush could be placed on a heart-bypass machine before the surgery could proceed. Drs. George T. Sugiyama, M.D., and M. Ashraf Mansour, vascular surgeons with Vascular Associates, P.C., repaired Bush’s femoral artery and femoral vein. The medical malpractice complaint alleges that the injuries Bush suffered during the surgery and his recovery rendered him unable to lead an independent life.
On August 5, 2005, the plaintiff served a notice of intent (NOI) to file a medical malpractice complaint against Shabahang, Heiser, Sugiyama, Mansour, West Michigan Cardiovascular, Vascular Associates, and Spectrum Health. The NOI is required by MCL 600.2912b, which provides that a person may not sue for medical malpractice without first giving the defendant health professional or health facility written notice “not less than 182 days before the action is commenced.” The statute requires a defendant to respond to the NOI in writing within 154 days of receiving the NOI. Sugiyama, Mansour, Vascular Associates, and Shabahang responded to the NOI.

On January 27, 2006, 175 days after serving the NOI, the plaintiff filed his complaint against all defendants. Shortly thereafter, Sugiyama, Mansour, and Vascular Associates moved to dismiss, arguing that the plaintiff 1) failed to file an NOI that complied with the requirements of MCL 600.2912b, and (2) did not wait the required 182 days before filing his complaint. Shabahang, Heiser, and West Michigan Cardiovascular joined the motion. Spectrum Health later filed its own motion for summary disposition based solely on the NOI’s alleged deficiency. In response, the plaintiff argued that the NOI met the minimum statutory requirements. He also contended that the complaint was not filed prematurely because the defendants’ responses to the NOI were deficient, allowing him to file suit earlier under MCL 600.2912b(8). That provision states that, if a plaintiff does not receive the written response required under the statute, the plaintiff may bring suit “upon the expiration of the 154-day period.”

At issue in this appeal is whether the Court of Appeals correctly held that the plaintiff’s direct liability claims against West Michigan Cardiovascular and Spectrum Health should be dismissed without prejudice, rather than with prejudice, and whether the plaintiff’s complaint was filed prematurely as to Shabahang. In its published decision, the Court of Appeals held that the plaintiff’s NOI did not adequately address the standard of care applicable to Western Michigan Cardiovascular under a direct theory of liability for failure to properly train or hire staff, because the NOI “merely provides that WM Cardiovascular should have hired competent staff members and properly trained them.” Similarly, as to Spectrum Health’s direct liability, the NOI was inadequate because “it does not adequately address the standard of care applicable to Spectrum Health’s staff other than Heiser and Shabahang,” the appellate panel said. However, when read as a whole, the NOI did provide both defendants with adequate notice that they could be held vicariously liable for Heiser or Shabahang’s acts, the panel found.

The Court of Appeals panel split on the issue of whether the complaint was filed prematurely as to Shabahang. The majority ruled that the plaintiff could file suit after 154 days on the basis of his belief that Shabahang’s response to the NOI was deficient; the plaintiff did not need to first challenge the response’s validity by bringing a motion in court, the judges said. The majority observed that “Indeed, a plaintiff who files before the expiration of the 182-day waiting period in reliance on MCL 600.2912b(8) assumes the risk that the trial court will conclude that the defendant’s response was adequate and, therefore, dismiss the plaintiff’s case.” The dissenting judge disagreed, reasoning that MCL 600.2912b(8) does not permit a plaintiff to unilaterally determine whether a defendant’s response satisfies the statute’s detailed requirements. In addition, even if the defendant’s response does not comply with the statute, MCL 600.2912b does not authorize a plaintiff to ignore the 182-day notice requirement, the dissent said.

The defendants now seek the Supreme Court’s review in three separate applications. West Michigan Cardiovascular and Spectrum Health contend that the Court of Appeals should have dismissed the direct liability claims against them with prejudice, rather than without prejudice, under Boodt v Borgess Medical Center, 481 Mich 558 (2008). In Boodt, the Michigan Supreme Court held that a defective NOI did not toll the statute of limitations; a complaint and affidavit of merit filed after the defective NOI also did not toll the statute of limitations, since the plaintiff could not properly sue after filing the deficient NOI, the Court said. Therefore, West Michigan Cardiovascular and Spectrum Health argue, once the Court of Appeals determined that the NOI was defective on the direct liability claims, the appeals court should have dismissed those claims with prejudice on the basis that the statute of limitations had run out on those claims.

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