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Michigan Supreme Court Lansing, Michigan

Opinion
DONNA B. DeCOSTA, Plaintiff-Appellant, v DAVID D. GOSSAGE, D.O., and GOSSAGE EYE CENTER, Defendants-Appellees.

Chief Justice:

Justices:

Marilyn Kelly

Michael F. Cavanagh Elizabeth A. Weaver Maura D. Corrigan Robert P. Young, Jr. Stephen J. Markman Diane M. Hathaway

FILED May 25, 2010

No. 137480

BEFORE THE ENTIRE BENCH WEAVER, J. In this medical-malpractice case, we consider whether plaintiff satisfied the notice-of-intent requirements under MCL 600.2912b(2) when she timely mailed her notice of intent to file a claim (NOI) to defendants' prior address but defendants did not receive the NOI until after the expiration of the limitations period.1 We conclude that plaintiff satisfied the mandates of MCL 600.2912b(2) because the statute states that "[p]roof of the mailing constitutes prima facie evidence of compliance with this section" and plaintiff mailed the NOI before the date the limitations period expired. The date defendants received the NOI is irrelevant.
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The period of limitations for medical-malpractice actions is two years. MCL 600.5805(6).

Further, we conclude that the period of limitations was tolled in this case in light of the recent amendments of MCL 600.5856. In Bush v Shabahang, we recognized that while former MCL 600.5856(d) had been interpreted as precluding tolling when defects exist in an NOI, the current statute, MCL 600.5856(c), makes clear that whether tolling applies is determined by the timeliness of the NOI.2 Thus, if an NOI is timely, the period of limitations is tolled despite defects contained therein. Plaintiff's NOI was timely, and accordingly the period of limitations was tolled. Further, Bush held that errors and defects in NOIs are to be addressed in light of MCL 600.2301, which allows the amendment of NOIs and requires the court to disregard "any error or defect" when the substantial rights of the parties are not affected and the amendment is in the furtherance of justice.3 Because defendants actually received the forwarded copies of the NOI, they were not prejudiced by the fact that plaintiff timely mailed notice to their previous address and no substantial right of any party was affected. Moreover, it is in the

furtherance of justice to disregard any error or defect in the NOI in this instance because to do so is in accord with the purpose of MCL 600.2912b, which is to promote settlement in place of formal litigation, thereby reducing the cost of medical-malpractice litigation while still providing compensation to injured plaintiffs. Accordingly, we conclude that the Court of Appeals majority erred by ruling that plaintiff's notice was ineffective to toll the period of limitations because defendants
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Bush v Shabahang, 484 Mich 156, 161, 185; 772 NW2d 272 (2009). Id. at 185.

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actually received the timely mailed NOI, which offered the opportunity for settlement in lieu of litigation. As there was no compromise of defendants' substantial rights and it is in the furtherance of justice to allow all parties to first seek settlement outside of court, we reverse the judgment of the Court of Appeals affirming the dismissal of plaintiff's complaint and remand this case to the trial court for further proceedings. I. FACTS AND PROCEDURAL BACKGROUND Defendant David Gossage presently operates his business as the Gossage Eye Center in Hillsdale, Michigan. From October 2002 until February 2004, Dr. Gossage maintained his office at 46 South Howell Street (the Howell office) in Hillsdale. Plaintiff Donna DeCosta sought treatment from Dr. Gossage at the Howell office in June 2002. Plaintiff made several subsequent visits to the Howell office. In February 2004, Dr. Gossage apparently moved his medical practice to 50 West Carleton Road (the Carleton office) in Hillsdale. In June 2004, plaintiff sought treatment by defendant at the Carleton office. Defendant performed cataract surgery on plaintiff's left eye on June 3, 2004. The surgery was performed at Hillsdale Community Health Center. Plaintiff experienced several problems with her eye immediately following surgery, including vision loss and other complications. Plaintiff went back to defendant on June 4 and June 5, 2004, at the Carleton office, but her eye complications did not improve.

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During her June 5 visit, defendant referred plaintiff to a retina specialist, Dr. Daniel Marcus of Toledo, Ohio. Dr. Marcus examined plaintiff in his office and later performed retinal surgery on plaintiff's left eye at Toledo Hospital. After this second surgery, plaintiff visited defendant at the Carleton office for a postoperative check. During this visit, defendant informed plaintiff that the postoperative lab results indicated that she was suffering from a coagulase-negative staphylococcal infection. On November 20, 2006, plaintiff filed a medical-malpractice complaint against Dr. Gossage and defendant Gossage Eye Center (also referred to as the Gossage Eye Institute, P.L.C.), alleging unnecessary cataract surgery in unsanitary conditions, among other allegations. Under MCL 600.5805(6), a medical-malpractice claim must be

brought within 2 years after the claim accrues--in this case, within 2 years of plaintiff's June 3, 2004 surgery performed by Dr. Gossage. Thus, plaintiff filed her medicalmalpractice complaint more than 2 years after her June 3, 2004 surgery. MCL 600.2912b(1) requires that before filing a medical-malpractice complaint, a plaintiff must give notice of the plaintiff's intent to file a claim. MCL 600.2912b(2) provides: The notice of intent to file a claim required under subsection (1) shall be mailed to the last known professional business address or residential address of the health professional or health facility who is the subject of the claim. Proof of the mailing constitutes prima facie evidence of compliance with this section. If no last known professional business or residential address can reasonably be ascertained, notice may be mailed to the health facility where the care that is the basis for the claim was rendered. Under MCL 600.5856(c), giving the NOI tolls the period of limitations.

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Plaintiff mailed copies of her NOI to Dr. Gossage and Gossage Eye Center on June 1, 2006--two days before the two-year limitations period was to expire on June 3, 2006. On June 5, 2006, an unknown individual at the old Howell office address accepted and signed for copies of the NOI and forwarded them to defendants at the Carleton office. Defendants acknowledge receipt of the forwarded NOI on June 6, 2006, three days after the two-year limitations period expired. Plaintiff also mailed a second set of copies of the NOI to the Carleton office, but these were mailed on June 7, 2006, four days after the limitations period expired. After plaintiff filed her complaint for medical malpractice, defendants moved for summary disposition on the ground that plaintiff did not comply with MCL 600.2912b(2) because she failed to mail the NOI to defendants' "last known professional business address" within two years from the date of the alleged malpractice. On May 16, 2007, the trial court granted defendants' motion for summary disposition, concluding that plaintiff had failed to comply with MCL 600.2912b(2) because she had not timely mailed the NOI to defendants' last known business address. Plaintiff appealed, and on September 2, 2008, the Court of Appeals affirmed the trial court's judgment in a 2-1 decision. Dissenting Judge JANSEN acknowledged that plaintiff was aware of defendants' new address (since she had received treatment at the

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Carleton office several times),4 but Judge JANSEN could "perceive no evidence to suggest that plaintiff was aware that the new address was defendants' sole or exclusive address."5 Plaintiff appealed in this Court, and we directed the clerk of the Court to schedule oral argument on whether to grant the application or take other peremptory action.6 II. STANDARD OF REVIEW This Court reviews de novo issues of law.7 We review a trial court's findings of fact for clear error.8 III. ANALYSIS With the enactment of MCL 600.2912b, our Legislature instituted a requirement that the alleged injured party in a medical-malpractice action provide advance notice to a defendant medical provider before filing a complaint. The advance-notice requirement encourages settlement of a dispute in lieu of costly litigation, and rigid interpretations of MCL 600.2912b do not foster or encourage the statute's goal of advancing settlement and reducing litigation costs.

Between June and October 2004, plaintiff sought treatment approximately seven times at the Carleton office. DeCosta v Gossage, unpublished opinion per curiam of the Court of Appeals, issued September 2, 2008 (Docket No. 278665), p 2 (JANSEN, J., dissenting).
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DeCosta v Gossage, 483 Mich 963 (2009). Odom v Wayne Co, 482 Mich 459, 467; 760 NW2d 217 (2008). Henry v Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009).

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In Bush, we analyzed the effect of the 2004 amendments of MCL 600.5856, the tolling statute, on previous decisions of this Court that held that any defect in an NOI required dismissal of the plaintiff's cause of action.9 Bush held that while former MCL 600.5856(d) had been interpreted as precluding tolling when defects exist in an NOI, the current statute, MCL 600.5856(c), now makes clear that whether tolling applies is determined by the timeliness of the NOI.10 Thus, if an NOI is timely, the period of limitations is tolled despite defects contained therein. Our decision in Bush restored adherence to the statute's true intent of promoting settlement by derailing strained interpretations regarding the adequacy of an NOI. Exceedingly exacting interpretations of the NOI mandates--requiring plaintiffs to take extraordinary measures to satisfy the goal of providing advance notice--in fact frustrate the legislative goal of achieving prompt resolution of medical-malpractice claims without long and expensive litigation. We decline to adopt any such interpretation because it was not the intent of the Legislature. As we held in Bush: The stated purpose of

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