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STATE OF MICHIGAN COURT OF APPEALS

ROBIN DECKER, as Next Friend of ERIC DECKER, Plaintiff-Appellee, v MICHAEL ROCHOWIAK, D.O., ALBERTO BETANCOURT, M.D., CARSON CITY HOSPITAL d/b/a CENTER FOR WOMEN'S HEALTH CARE, and CARSON CITY HOSPITAL, INC., Defendants-Appellees, and MICHAEL STOIKO, M.D., SPECTRUM HEALTH HOSPITALS, INC. d/b/a BUTTERWORTH HOSPITAL, and SPECTRUM HEALTH HOSPITALS, INC. d/b/a DeVOS CHILDREN'S HOSPITAL, Defendants-Appellants, and BLUE CROSS BLUE SHIELD, Intervening Plaintiff.

FOR PUBLICATION March 30, 2010 9:05 a.m.

No. 284155 Montcalm Circuit Court LC No. 06-007819-NH

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ROBIN DECKER, as Next Friend of ERIC DECKER, Plaintiff-Appellee, v MICHAEL ROCHOWIAK, D.O., ALBERTO No. 285870 Montcalm Circuit Court LC No. 2006-007819-NH

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BETANCOURT, M.D., CARSON CITY HOSPITAL d/b/a CENTER FOR WOMEN'S HEALTH CARE, and CARSON CITY HOSPITAL, INC., Defendants-Appellees, and MICHAEL STOIKO, M.D., SPECTRUM HEALTH HOSPITALS, INC. d/b/a BUTTERWORTH HOSPITAL, and SPECTRUM HEALTH HOSPITALS, INC. d/b/a DeVOS CHILDREN'S HOSPITAL, Defendants-Appellants.

ROBIN DECKER, as Next Friend of ERIC DECKER, Plaintiff-Appellee/Cross-Appellee, v MICHAEL ROCHOWIAK, D.O., ALBERTO BETANCOURT, M.D., CARSON CITY HOSPITAL d/b/a CENTER FOR WOMEN'S HEALTH CARE, and CARSON CITY HOSPITAL, INC., Defendants-Appellees/CrossAppellants, and MICHAEL STOIKO, M.D., SPECTRUM HEALTH HOSPITALS, INC. d/b/a BUTTERWORTH HOSPITAL, and SPECTRUM HEALTH HOSPITALS, INC. d/b/a DeVOS CHILDREN'S HOSPITAL, Defendants-Appellants. No. 290633 Montcalm Circuit Court LC No. 2006-007819-NH

Advance Sheets Version

Before: CAVANAGH, P.J., and FITZGERALD and SHAPIRO, JJ.

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CAVANAGH, P.J. In Docket Nos. 284155 and 285870, defendants Michael Stoiko, M.D., Spectrum Health Hospitals, Inc., doing business as Butterworth Hospital, and Spectrum Health Hospitals, Inc., doing business as DeVos Children's Hospital (the Spectrum defendants), appeal by leave granted an order granting plaintiff, Eric Decker, a minor, by his next friend Robin Decker, leave to amend his medical malpractice complaint, and an order denying the Spectrum defendants' motion for partial summary disposition with regard to those claims added by amendment. We affirm. In Docket No. 290633, the Spectrum defendants appeal by leave granted an order denying their motion for summary disposition that challenged the sufficiency of plaintiff's notice of intent (NOI) and the expert support for plaintiff's nursing malpractice claims. Also in Docket No. 290633, defendants Michael Rochowiak, D.O., Alberto Betancourt, M.D., Carson City Hospital, doing business as Center for Women's Health Care, and Carson City Hospital, Inc. (the Carson City defendants), challenge on cross-appeal an order denying their motion for joinder and concurrence in the Spectrum defendants' motion for summary disposition with regard to the sufficiency of plaintiff's NOI. We affirm. These consolidated interlocutory appeals arise out of defendants' care and treatment of plaintiff, Eric Decker (Eric), who was born on July 17, 1996, at defendant Carson City Hospital. Plaintiff has averred that he was born by vacuum delivery necessitated by fetal distress. He was not seen by a pediatrician. Although his bilirubin was elevated and he started becoming reluctant to feed, Eric was discharged the next day, on July 18, 1996. On July 19, 1996, Eric was taken back to Carson City Hospital because he was lethargic and reluctant to feed. After being diagnosed with persistent hypoglycemia and jaundice caused by an elevated bilirubin level, he was airlifted to DeVos Children's Hospital on Spectrum Health's Butterworth Campus for medical management in the pediatric intensive care unit (PICU). Upon arrival, it was determined that Eric was profoundly hypoglycemic with a critically low glucose level of 4 mg/dl, where an acceptable range appears to be 60 to 100 mg/dl. A subclavian venous catheter was inserted to infuse glucose solutions. Although his blood glucose level increased somewhat for a short period, it remained dangerously low. Seizure activity was noted. A brain CT scan performed on July 20, 1996, revealed an extensive hypoxic ischemic brain injury and hemorrhages. Eric's condition continued to deteriorate, culminating in a cardiac arrest. During the resuscitation efforts, it was determined that the subclavian venous catheter was not in the vein. Thus, the fluid that had been infused through it did not go into Eric's bloodstream, but into his chest cavity. The large amount of fluid in Eric's chest cavity interfered with the ability of Eric's heart to beat--a condition known as cardiac tamponade--which led to his cardiopulmonary arrest. After a functioning femoral vein catheter was placed, Eric's condition stabilized. He remained hospitalized through September 2, 1996. Eric has been diagnosed with cerebral palsy from an early anoxic (lack of oxygen) brain injury. He is developmentally delayed, suffers from sensory deficits, and is legally blind. On September 23, 2004, plaintiff served his NOI on defendants as required by MCL 600.2912b, and on June 5, 2006, he filed his medical malpractice case with supporting affidavits -3-

of merit. On January 9, 2008, plaintiff moved for leave to file an amended complaint that alleged 17 specific ways in which the Spectrum defendants breached the applicable standards of care. Plaintiff argued that the amendment was proper because (1) discovery remained open and experts had not been deposed, (2) the amendment merely clarified allegations and issues and was made possible after particular information was learned through the discovery process, (3) the clarifications "ultimately relate[] back to the underlying lynch pin of this entire case which is that they did not appropriately monitor and maintain this baby's glucose level," and (4) defendants would not be prejudiced by the amendment. The Spectrum defendants opposed plaintiff's motion to amend, arguing that (1) plaintiff had not shown why "justice" required that leave be granted under MCR 2.118(A)(2) in light of the inexcusable delay in bringing such claims that were discernable from their inception; (2) plaintiff failed to raise these new theories in the NOI as required by MCL 600.2912b, thus such claims were barred by the statute of limitations; and (3) defendants would be unduly prejudiced if plaintiff were allowed to amend the complaint to add these new allegations. Oral arguments were heard on January 31, 2008. The trial court agreed with plaintiff's arguments, and granted plaintiff's motion for leave to file an amended complaint. Thereafter, plaintiff served on defendants a supplemental NOI containing the additional allegations. A written order granting plaintiff's motion was entered on February 19, 2008, and plaintiff filed the amended complaint on February 28, 2008. On March 11, 2008, under Docket No. 284155, the Spectrum defendants filed with this Court their application for leave to appeal the trial court's February 19, 2008, order. On April 8, 2008, the Spectrum defendants moved for partial summary disposition, seeking dismissal of the 17 allegations raised in plaintiff's amended complaint. Defendants essentially reiterated the arguments they made in opposition to plaintiff's motion to amend, including that the specific allegations were not identified in the NOI and were barred from being added to this lawsuit by the expiration of the period of limitations. Defendants also contested the fact that plaintiff did not wait 182 days after serving the supplemental NOI before filing the amended complaint. The trial court heard oral arguments on April 24, 2008, and agreed with plaintiff's arguments. An order denying defendants' motion was entered on May 19, 2008. On June 9, 2008, under Docket No. 285870, the Spectrum defendants filed with this Court their application for leave to appeal the trial court's May 19, 2008, order. On September 8, 2008, this Court granted the Spectrum defendants' applications for leave to appeal in Docket Nos. 284155 and 285870, and the appeals were administratively consolidated. See Decker v Rochowiak, unpublished order of the Court of Appeals, entered September 8, 2008 (Docket No. 284155), amended September 18, 2008; Decker v Rochowiak, unpublished order of the Court of Appeals, entered September 8, 2008 (Docket No. 285870), amended September 18, 2008. On November 26, 2008, while Docket Nos. 284155 and 285870 were pending on appeal, the Spectrum defendants again moved for summary disposition in the trial court. They moved for summary dismissal as to all of plaintiff's claims, arguing that plaintiff's initial NOI failed to contain a statement of proximate cause detailing the manner in which defendants' alleged negligence resulted in plaintiff's injuries as required by MCL 600.2912b(4)(e). The Spectrum defendants also moved for summary disposition as to plaintiff's nursing malpractice claims. They asserted that (1) plaintiff's only expert witness could not testify because she improperly -4-

relied upon a national, rather than local, standard of care with regard to these claims, and (2) plaintiff's expert was not qualified to testify in support of plaintiff's negligent charting claims. The Carson City defendants joined the motion for summary disposition, challenging the sufficiency of the statement of causation in plaintiff's NOI. Plaintiff opposed the motions. On December 19, 2008, oral arguments were held. The trial court rejected defendants' claims that plaintiff's NOI was deficient, holding that "reading it in its entirety it describes the manner in which the various breaches of standard of care were the proximate cause of the injuries and I'll also adopt by reference the arguments of [plaintiff's counsel] and his brief in connection with that." The court also rejected the Spectrum defendants' challenge to plaintiff's nursing malpractice claims, holding that the expert seemed to testify that the national standard of care and the local standard of care were the same and, with regard to the charting claim, "the standard of care determines what the nurses should do, not whether the hospital form provides for it." After noting that it was adopting the arguments and brief of plaintiff, the trial court denied defendants' motions. On February 9, 2009, an order denying the Spectrum defendants' motion for summary disposition was entered. On March 2, 2009, under Docket No. 290633, the Spectrum defendants filed with this Court their application for leave to appeal the trial court's February 9, 2009, order. On May 5, 2009, this Court granted the Spectrum defendants' application for leave to appeal, and administratively consolidated the appeal with Docket Nos. 284155 and 285870. See Decker v Rochowiak, unpublished order of the Court of Appeals, entered May 5, 2009 (Docket No. 290633). On May 26, 2009, the Carson City defendants filed with this Court their claim of cross-appeal. On June 4, 2009, the trial court entered an order denying the Carson City defendants' motion for joinder and concurrence in the Spectrum defendants' motion for summary disposition with regard to the sufficiency of plaintiff's NOI. I. DOCKET NOS. 284155 AND 285870 The Spectrum defendants argue that the trial court erred by denying their motion for partial summary disposition as to 17 "new" allegations raised in plaintiff's first amended complaint. More specifically, defendants argue that these allegations should have been dismissed because they were not raised in plaintiff's NOI and are barred by the statute of limitations. We disagree. We review de novo the grant or denial of a motion for summary disposition. Kreiner v Fischer, 471 Mich 109, 129; 683 NW2d 611 (2004). Likewise, issues of court rule and statutory interpretation, as well as whether a statute of limitations bars a claim, are reviewed de novo. Estes v Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008); Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566, 570-571; 703 NW2d 115 (2005). A medical malpractice action cannot be filed until a plaintiff complies with MCL 600.2912b, which provides: (1) Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility

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written notice under this section not less than 182 days before the action is commenced. * * * (4) The notice given to a health professional or health facility under this section shall contain a statement of at least all of the following: (a) (b) The factual basis for the claim. The applicable standard of practice or care alleged by the claimant.

(c) The manner in which it is claimed that the applicable standard of practice or care was breached by the health professional or health facility. (d) The alleged action that should have been taken to achieve compliance with the alleged standard of practice or care. (e) 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. (f) The names of all health professionals and health facilities the claimant is notifying under this section in relation to the claim. The purpose of the notice requirement was explained in Neal v Oakwood Hosp Corp, 226 Mich App 701; 575 NW2d 68 (1997), as follows: The purpose of the notice requirement is to promote settlement without the need for formal litigation and reduce the cost of medical malpractice litigation while still providing compensation for meritorious medical malpractice claims that might otherwise be precluded from recovery because of litigation costs. [Id. at 705, citing Senate Legislative Analysis, SB 270, August 11, 1993; House Legislative Analysis, HB 4403-4406, March 22, 1993.] See, also, Bush v Shabahang, 484 Mich 156, 174; 772 NW2d 272 (2009). Once notice is given in compliance with MCL 600.2912b, the two-year limitations period is tolled during the notice period. MCL 600.5856(c). But a medical malpractice plaintiff has the burden of showing compliance with the requirements of MCL 600.2912b in order to toll the statute of limitations. Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 686, 691; 684 NW2d 711 (2004). Here, the Spectrum defendants argue that plaintiff's NOI did not include 17 specific allegations that plaintiff raised in his first amended complaint; thus, those "theories of malpractice liability that are not encompassed within [his] NOI" should have been summarily dismissed. We disagree. The NOI, examined as a whole, must advise "potential malpractice defendants of the basis of the claims against them." Id. at 696 n 14; Boodt v Borgess Med Ctr, 272 Mich App 621, 628, 630; 728 NW2d 471 (2006), rev'd in part on other grounds 481 Mich 558, 564 (2008). -6-

However, because the NOI comes at an early stage of the malpractice proceeding, the plaintiff does not have to craft the notice "with omniscience." Roberts (After Remand), 470 Mich at 691. Rather, the plaintiff must "make good-faith averments that provide details that are responsive to the information sought by the statute and that are as particularized as is consistent with the early notice stage of the proceedings." Id. at 701 (emphasis in original). The NOI must "set forth allegations in good faith, in a manner that is responsive to the specific queries posed by the statute, and with enough detail to allow the potential defendants to understand the claimed basis of the impending malpractice action . . . ." Id. at 691 n 7. Considered as a whole, plaintiff's NOI clearly set forth as the claimed basis of plaintiff's impending malpractice action against the Spectrum defendants their alleged failure to properly care for, evaluate, treat, and monitor Eric's hypoglycemic condition, including by the proper and timely administration of the necessary glucose solutions through a properly placed central venous line. The NOI also asserted that the hospital, as well as the registered nurses and the physicians who were involved in Eric's medical management, were liable for Eric's resulting injuries. Contrary to the Spectrum defendants' argument, plaintiff's subsequently filed amended complaint did not assert any "new" potential causes of injury. More specifically, with regard to the registered nurses, plaintiff's NOI set forth, in

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