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Sanders v. McLaren-Macomb

Court of Appeals of Michigan

February 27, 2018

NANCY SANDERS, Plaintiff-Appellee,
v.
MCLAREN-MACOMB and MOUNT CLEMENS REGIONAL MEDICAL CENTER, Defendants, and RICHARD S. VEYNA, M.D., and MICHIGAN HEAD AND SPINE INSTITUTE, also known as UNIVERSITY NEUROSURGICAL ASSOCIATES, PC, and UNIVERSITY NEUROSURGICAL ASSOCIATES, PC, Defendants-Appellants.

         Macomb Circuit Court LC No. 2015-004372-NH

          Before: Gleicher, P.J., and Borrello and Swartzle, JJ.

          Borrello, J.

         In this interlocutory appeal in a medical malpractice action, defendants, Richard S. Veyna, M.D., Michigan Head and Spine Institute (MHSI), and University Neurosurgical Associates, PC (UNA), [1] appeal by leave granted[2] the trial court's order granting plaintiff's motion for reconsideration and denying defendants' motion for summary disposition. The trial court denied defendants' motion for summary disposition on the ground that defendants failed to comply with MCR 2.112(L)(2)(a) in challenging plaintiff's notice of intent to file a claim (NOI). For the reasons set forth in this opinion, we affirm.

         I. BACKGROUND

         Plaintiff's medical malpractice claim stems from the treatment that she received at McLaren-Macomb Hospital[3] in July 2013, related to a fall that had occurred at her home. Plaintiff was admitted to McLaren-Macomb Hospital on approximately July 2, 2013, where she was treated by neurosurgeon, Dr. Veyna, who was employed by MHSI.[4] Plaintiff alleged that defendants were negligent in treating her condition, principally by failing to timely order and perform an MRI of her brain and cervical spine on July 4, 2013, and July 5, 2013. As a result of the delay in ordering or performing a brain MRI, plaintiff alleges there was a delay in the diagnosis and treatment of her spinal condition, causing prolonged compression of the spine. Plaintiff further alleged that the surgical procedure that was performed on July 13, 2013, [5] did not provide any benefit and that defendants'[6] negligence in failing to appropriately and timely diagnose her cervical spine pathology and relieve the pressure on her spinal cord caused her permanent quadriparesis.

         On June 30, 2015, plaintiff, as required pursuant to MCL 600.2912b, mailed her NOI to, among others, defendants Dr. Veyna and MHSI. Plaintiff sent her NOI to Dr. Veyna by United States mail to the following addresses:

Richard S. Veyna, M.D. c/o Michigan Head and Spine Institute 1030 Harrington Blvd., Suite 100 Mt. Clemens, MI 48043
Richard S. Veyna, M.D. c/o McLaren Macomb 1000 Harrington Blvd.
Mt. Clemens, MI 48043 Plaintiff sent her NOI to MHSI by United States Mail to the following addresses:
Michigan Head and Spine Institute 1030 Harrington Blvd., Suite 100 Mt. Clemens, MI 48043
Michigan Head and Spine Institute, PLLC Resident Agent: Harold D. Portnoy 44555 Woodward Avenue, Suite 506 Pontiac, MI 48341
MHSI, P.L.L.C. Resident Agent: Harold D. Portnoy 44555 Woodward Avenue, Suite 506 Pontiac, MI 48341

         The two NOIs that were sent to the 44555 Woodward address were returned as undeliverable, but none of the other NOIs were returned.

         On December 9, 2015, plaintiff filed her complaint against defendants alleging medical malpractice. Subsequently, on December 16, 2015, defendants' attorney, Scott Saurbier, contacted plaintiff's attorney, Matthew Turner, and requested a copy of the NOI that was sent, indicating that defendants had not received a copy. On December 28, 2015, Turner forwarded a copy of the NOI to Saurbier. Dr. Veyna averred that he never saw or received an NOI involving plaintiff until after being served with the complaint, that he was not an employee of McLaren-Macomb, and that neither MHSI nor McLaren-Macomb had ever indicated that an NOI had been delivered on his behalf. Additionally, Karin Green, the Office Administrator who receives all NOIs delivered to MHSI offices, averred that MHSI never received an NOI pertaining to plaintiff.

         MHSI and UNA filed an answer on January 15, 2016, and Dr. Veyna filed an answer on February 9, 2016, in which defendants generally denied the allegations of negligence. Both answers raised as an affirmative defense that "[t]he claims are barred for failing to comply with MCL 600.2912b by not properly filing and providing sufficient Notice of Intent."

         On March 4, 2016, after filing their answers, defendants Dr. Veyna and MHSI collectively moved for summary disposition pursuant to MCR 2.116(C)(8), arguing that plaintiff failed to give defendants the requisite notice in the manner prescribed under MCL 600.2912b(2) because plaintiff did not mail the NOIs to defendants' last known professional business addresses. Defendants argued that plaintiff mailed the NOIs to prior or nonexistent addresses, even though their correct addresses were reasonably ascertainable, and as a result, defendants did not receive the notice required under MCL 600.2912b to commence a medical malpractice action. Defendants contended that defendants' last known addresses could be determined by a Google search or, with respect to MHSI, by consulting the Michigan Department of Licensing and Regulatory Affairs website.

         In opposition to defendants' motion for summary disposition, plaintiff presented two arguments. First, plaintiff argued that defendants' motion was untimely under MCR 2.112(L)(2)(a), which strictly prescribes the time for challenging an NOI, and thus defendants' motion must be dismissed. Plaintiff asserted that, under MCR 2.112(L)(2)(a), defendants were required to bring their challenge to the NOI by motion when they filed their answers but defendants failed to do so. Plaintiffs further maintained that there was not "good cause" as required by MCR 2.112(L)(2) that would permit the trial court to allow a later challenge to the NOI because defendants were aware of the addresses to which the NOIs were sent before they filed their answers. Second, plaintiff argued that she complied with the service requirements of MCL 600.2912b(2). Plaintiff mailed the NOIs to defendants' last known professional business addresses as reasonably ascertained from McLaren-Macomb Hospital's website, Google searches, and the Michigan Department of Licensing and Regulatory Affairs website. Plaintiff also mailed an NOI to McLaren-Macomb Hospital, the only place where defendants rendered medical services to plaintiff. Plaintiff further argued that there was nothing to indicate that any one of the other business addresses for Dr. Veyna was his sole business address for receiving professional correspondence.

         Defendants argued in reply that MCR 2.112(L)(2)(a) was inapplicable to their motion because defendants were not challenging the contents of the NOI but instead were only challenging the lack of service of the NOI and plaintiff's failure to comply with the requirements of MCL 600.2912b(1). Defendants further argued that they had preserved their challenge by including it in their affirmative defenses filed with their answers, which put plaintiff on notice. Additionally, defendants argued that there was good cause for purposes of MCR 2.112(L)(2) to allow defendants' challenge because defendants' substantial rights were affected by not receiving the NOI, a medical malpractice action cannot be commenced against a defendant if an NOI is not provided to that defendant, and plaintiff had notice that defendants would assert this defense.

         After a hearing on defendants' summary disposition motion, the trial court issued a written opinion and order granting the motion. The trial court noted that the parties had relied on matters beyond the pleadings, and it determined that the motion would be treated as one brought under MCR 2.116(C)(10). The trial court concluded that summary disposition in defendants' favor was warranted because plaintiff violated MCL 600.2912b(1) by completely failing to serve an NOI on defendants before filing the complaint even though their addresses were reasonably determinable.

         Plaintiff moved for reconsideration, arguing, as pertinent to this appeal, that defendants' motion was untimely and that the trial court's initial ruling failed to address plaintiff's argument regarding the operation of MCR 2.112(L)(2)(a).

         In a written opinion and order, the trial court granted plaintiff's motion for reconsideration and ruled that defendants' summary disposition motion was denied. The trial court concluded that defendants, by filing their answers and then challenging the NOI in their subsequent summary disposition motion, failed to comply with the clear language in MCR 2.112(L)(2)(a) requiring a challenge to the NOI to be made by a motion filed at the time that the first response to the complaint is filed. Additionally, the trial court concluded that the court rule did not permit defendants to preserve a challenge to the NOI by merely raising it in the affirmative defenses in their answers because an answer is a pleading rather than a motion. The trial court further determined that there was no showing of good cause to allow defendants' untimely challenge.

         Defendants sought leave to appeal from the trial court's order, arguing that MCR 2.112(L)(2)(a), which applies in "a medical malpractice action, " was inapplicable in this case where the NOI was not properly served or actually received by defendants because plaintiff failed to comply with MCL ...


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