Professional Negligence Law Reporter

The Michigan Supreme Court held that the notice-of-intent (NOI) requirement outlined in Mich. Comp. Laws §600.2912b—which mandates that medical negligence plaintiffs provide written notice of suit not less than 182 days before commencing an action—does not apply to an existing defendant named in a medical negligence lawsuit.

Drago and Blaga Kostadinovski served a physician and a medical practice with an NOI, asserting that the physician had breached the standard of care during mitral valve repair surgery. The couple later filed a medical negligence suit against the defendants and included an affidavit of merit. The defense moved for summary judgment, and the plaintiffs moved to amend their complaint and dismiss their original complaint.
The trial court denied the plaintiffs’ motion to amend. The parties appealed and cross-appealed, and an intermediate appellate court reversed and remanded. The trial court, on remand, again denied the plaintiffs’ motion to amend, citing §600.2912b. The appellate court confirmed the trial court’s conclusion.

Reversing the appellate court and vacating the trial court’s decision, the state high court found that under §600.2912b, a person must provide written notice to a health care professional or facility not less than 182 days before filing suit. The statute’s plain language clearly states that this NOI requirement applies only before an action is commenced, the court found. The purpose of the statute, the court added, is to promote settlement before formal litigation. Had the legislature intended for an NOI requirement to be imposed for already existing defendants, it could have written the statute consistent with such an intent, the court said.

Thus, the court concluded that because adding additional NOI requirements for existing defendants is not consistent with the statute’s plain language or its legislative intent, and the plaintiffs already served the defendants with their NOI before filing suit, the trial court’s and appellate court’s decisions were improper.

Citation: Kostadinovski v. Harrington, 2023 WL 4375294 (Mich. July 6, 2023).

Plaintiff counsel: Mark Granzotto, Berkley, Mich.; and AAJ members Jeffrey T. Meyers and Timothy M. Takala, both of Dearborn, Mich.