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140922 - Driver v Cardiovascular Clinic

Willie Driver and Beverly Driver,

 

Mark R. Granzotto

 

Plaintiffs-Appellants,

 

v

(Appeal from Ct of Appeals

 

 

(Wayne – MacDonald, K.)

 

Cardiovascular Clinical Associates, P.C.,

 

Linda M. Garbarino

 

Defendant-Appellee.

 

and

 

 

Mansoor G. Naini, M.D., and Michigan Cardiology Associates, P.C.,

 

 

 

Defendants.

 


​Plaintiffs-Appellants' Application for Leave to Appeal>>

Defendant-Appellee's Response to Application for Leave to Appeal>>
Defendant-Appellee's Supplemental Brief>>

Michigan Optometric Association's Amicus Curiae Brief>>

Michigan State Medical Society's Amicus Curiae Brief>>

Proassurance Corporation's Amicus Curiae Brief>>

Summary

​Willie Driver began seeing Dr. Mansoor Naini for general medical care in 1983. Despite the fact that Driver was over 50 years old and had a family history of colon cancer, Naini never referred him for a colonoscopy, despite abnormal blood test results in 2003. In October 2005, Driver went to a gastroenterologist because of unexplained weight loss. Sometime in November 2005, Driver was diagnosed with stage IV colon cancer with metastasis to the liver.

On April 25, 2006, Driver’s attorney mailed a notice of intent to file a medical malpractice action to Naini and his professional corporation, Michigan Cardiology, pursuant to MCL 600.2912b. The notice of intent stated that it applied to Naini, Michigan Cardiology, “and their professional corporations and all agents and employees, actual or ostensible[,] who furnished treatment to Willie Driver.” The complaint alleged that Naini was an employee of Michigan Cardiology the entire time he treated Driver. On January 15, 2007, Naini and Michigan Cardiology filed a notice of nonparty fault pursuant to MCL 600.2957 and MCR 2.112(K). In that notice, the defendants asserted that, at some point during the relevant time period, Naini was an employee of Cardiovascular Clinical Associates, which may be vicariously liable. On February 1, 2007, Driver’s attorney mailed a “first amended” notice of intent to Cardiovascular Clinical Associates; a few weeks later, Driver moved for permission to file an amended complaint adding Cardiovascular Clinical Associates as a defendant. The court granted the motion, and Driver filed his first amended complaint on March 22, 2007.

In June 2007, Cardiovascular Clinical Associates moved for summary disposition, arguing, among other things, that Driver’s claim had to be dismissed because he failed to comply with the mandatory 182-day waiting period under MCL 600.2912b. Driver responded that the amended complaint was timely under the nonparty fault statute, MCL 600.2957, which provides a 91-day window for filing an amended complaint when a new party is added. The trial court agreed with Driver and denied the motion.

Cardiovascular Clinical Associates filed an application for interlocutory review in the Court of Appeals. The appeals court granted leave and, in a published opinion, the court reversed the trial court’s denial of summary disposition, relying in part on Burton v Reed City Hosp Corp, 471 Mich 745 (2005), to conclude that Driver’s complaint was time-barred as to Cardiovascular Clinical Associates. The Court of Appeals explained that, because Driver filed his first amended complaint before the notice period expired, no medical malpractice action was ever commenced with regard to Cardiovascular Clinical Associates. Because no action was properly commenced, the limitations period continued to run, and expired. This was the case, the appeals court said, because the notice of intent statute prevailed over the nonparty fault statute. The court rejected Driver’s claim that Burton was no longer good law, finding unpersuasive Driver’s argument that Burton had been overruled in Bush v Shabahang, 484 Mich 156 (2009). Driver appeals.