Michigan Supreme Court Holds No New Notice Required For New Medical Malpractice Theory In Existing Case

No New Notice Required For New Theory In Existing Case: The Michigan Supreme Court stated in its syllabus to its opinion dated July 6, 2023: “The NOI [notice of intent] requirement of MCL 600.2912b—that written notice be given to a health professional or health facility before a complaint is filed—does not apply to an already-existing defendant after a medical malpractice action has commenced. Thus, a plaintiff does not have to serve a new NOI on an already-existing defendant if a new, separate theory of causation comes to light during the discovery process. Because the trial court concluded otherwise, it necessarily abused its discretion when it denied plaintiffs’ motion to amend their complaint on the basis that amendment would be futile and that amending the complaint would contravene the MCL 600.2912b NOI requirement.”

“In this case, plaintiffs served defendants with a compliant NOI and waited the statutorily designated 182 days before filing their complaint. Caselaw involving defective NOIs, like Bush v Shabahang, 484 Mich 156 (2009), did not apply because plaintiffs’ NOI was not defective at the time the complaint was filed, and the analysis did not change even though MCR 2.112(L)(2) might allow a defendant to challenge an NOI for good cause. Because plaintiffs had already commenced the action when they sought to amend their complaint, MCL 600.2912b did not require plaintiffs to seek to amend their NOI. Because the trial court concluded otherwise, it necessarily abused its discretion when it denied plaintiffs’ motion to amend their complaint on the basis that amendment would be futile and that amending the complaint would contravene the MCL 600.2912b NOI requirement.”

The Underlying Facts

Drago and Blaga Kostadinovski brought a medical malpractice action in the Macomb Circuit Court against Steven D. Harrington (the doctor) and Advanced Cardiothoracic Surgeons, PLLC, asserting six specific theories with respect to how the doctor breached the standard of care throughout the course of Drago’s mitral-valve-repair surgery in December 2011, during which Drago suffered a stroke. Plaintiffs timely served defendants with a notice of intent (NOI) to file suit in accordance with MCL 600.2912b, timely served the complaint, and timely served the affidavit of merit; the same six negligence theories outlined in the NOI regarding the alleged breaches of the standard of care were asserted by plaintiffs in the complaint and by plaintiffs’ expert in the affidavit of merit.

Following the close of discovery, defendants moved for summary disposition, arguing that plaintiffs’ experts were unable to validate or support the six negligence theories asserted by plaintiffs in the NOI, affidavit of merit, and complaint. Plaintiffs agreed to the dismissal of their existing, unsupported negligence allegations and complaint but moved to amend the complaint to assert a new theory: that the doctor breached the standard of care by failing to adequately monitor Drago’s hypotension and to transfuse him to maintain Drago’s blood pressure.

Source Kostadinovski v. Harrington, Docket No. 162909.

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