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140808 - Green v Piersonc

Paul G. Green II, as Personal Representative of the Estate of Paul Gerald Green, Deceased,

 

Ramona C. Howard

 

Plaintiff-Appellant,

 

v

(Appeal from Ct of Appeals

 

 

(Berrien – Dewane, J.)

 

Charles Pierson, M.D., Barbara Carlson, M.D., Southwestern Medical Center, P.C., Richard Kammenzind, M.D., Thomas Pow, M.D., Great Lakes Heart & Vascular Institute, P.C., and Lakeland Medical Center St. Joseph,

 

Marcy R. Matson

Karl E. Hannum

Jon D. Vander Ploeg

Timothy P. Buchalski

 

Defendants-Appellees.

 

and

 

 

Healthcare Midwest Internal Medicine,

 

 

 

Defendant.

 

Summary

​Paul Green died after being cared for by the defendant physicians and hospital. The plaintiff, as personal representative of Green’s estate, sued the defendants for medical malpractice. The defendants filed motions for summary disposition, arguing that the lawsuit was not timely filed and that the mandatory pre-suit notice of intent to sue was not properly filed. (Under MCL 600.2912b, a plaintiff in a medial malpractice suit must file an NOI 182 days before filing the complaint.) The trial court ruled that the complaint was not timely filed as to some of the defendants. The trial court also held that the plaintiff’s NOI was inadequate because the statement of proximate causation was not specific enough. MCL 600.2912b(4)(e) provides that an NOI must state “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.” Green’s NOI, which stated that “[t]imely and proper compliance with the standard of care would have prevented [the decedent], from untimely demise,” did not satisfy the statute, the court said. Accordingly, the trial court entered an order granting the defendants’ motions for summary disposition and dismissing the plaintiff’s claims with prejudice.

The plaintiff appealed as of right to the Court of Appeals. In an unpublished per curiam opinion, the Court of Appeals affirmed, holding that the defendants did not waive their statute of limitations defense, and that the trial court had authority under MCR 2.116(I) to decide sua sponte (on the court’s own motion) whether the proximate cause statement in the NOI was sufficient. The Court of Appeals also rejected the plaintiff’s argument that Bush v Shabahang, 484 Mich 156 (2009) applied to this case. In Bush, the Michigan Supreme Courtruled that a timely-filed but defective NOI tolls the period of limitations and that, under MCL 600.2301 and upon a showing of a good-faith effort to comply with MCL 600.2912b, the plaintiff is entitled to amend to notice of intent. But the Court of Appeals held that Bush did not apply in Green’s case because Bush involved the post-amendment version of MCL 600.5856, while the pre-amendment version of MCL 600.5856 applied to this case. Finally, the Court of Appeals affirmed the trial court’s ruling that the statement of proximate cause in the NOI was not specific enough. The plaintiff appeals.