On January 22, 2002, Edris Ligons went to Crittenton Hospital’s emergency room, following four days of vomiting, diarrhea, and other problems. She was seen by Dr. David Bauer, who treated her for gastroenteritis and dehydration, then discharged her. The next day, she visited her doctor’s office complaining of severe pain. She was sent to Crittenton’s emergency room and was admitted to the hospital. On January 24, emergency surgery was performed, but it failed to save Ligons, who died on January 29, 2002.
Ligons’ son Dujuan Ligons claimed that Bauer and Crittenton, and Bauer’s professional corporation, Rochester Emergency Group, were liable for medical malpractice. He contended that the hospital should have admitted his mother when she visited the emergency room on January 22, 2002, and that the hospital’s delay in treating her caused her death. Ligons mailed a notice of intent to sue, pursuant to MCL 600.2912b, to the three defendants; he later filed a more detailed, supplemental notice of intent. He then filed a medical malpractice complaint against the defendants, along with two affidavits of merit from doctors, as required by MCL 600.2912d. The first affidavit stated in part that Ligons died “[a]s a direct and proximate cause of the imprudent acts and omissions committed by the individuals indentified herein . . . .” The doctor who provided the other affidavit opined that “had the defendants admitted the patient to the hospital on January 22, 2002, and obtained the appropriate consults on January 22, 2002, as outlined in [the first affidavit of merit] … Edris Ligons would not have died.”
Bauer and Rochester Emergency Group, joined by Crittenton, moved to dismiss the case pursuant to MCR 2.116(C)(7); both the notices of intent to sue and the affidavits of merit were deficient, the defendants contended. But the trial court denied the motion, ruling that the notices of intent and affidavits of merit “are substantially in compliance with the statute.” In a published opinion, the Court of Appeals reversed the trial court in part. Although the notices of intent to sue were adequate, Ligons’ affidavits of merit were not because neither one set forth a sufficient statement regarding proximate cause, the appellate panel said. The only available remedy was dismissal with prejudice, because the limitations period had expired, the Court of Appeals determined. The panel rejected Ligons’ argument that he should be able to amend his affidavits of merit pursuant to MCR 2.118 and have the amendment relate back to the date he filed the lawsuit.
Ligons filed a motion for reconsideration, focusing on MCL 600.2301 and the Michigan Supreme Court’s decision in Bush v Shabahang, 484 Mich 156 (2009). MCL 600.2301 states: “The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.” In Bush, the Michigan Supreme Court held that this statute allows defects in notices of intent to sue to be addressed by way of amendments. The Court of Appeals denied the motion for reconsideration; Ligons appeals.