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Fournier v. Mercy Community Health Care System-Port Huron12/20/2002
FOR PUBLICATION
Defendant Mercy Community Health Care System-Port Huron (defendant Mercy) appeals by leave granted and defendants Peter J. Clive, M.D. and X-ray Associates of Port Huron (defendant X-ray) cross-appeal an order denying their motion for summary disposition. This appeal is being decided without oral argument pursuant to MCR 7.214(E). We reverse.
I. Basic Facts and Procedural History
The parties do not dispute these basic facts. Decedent, Donald M. Fournier, sought treatment for severe pain in his left side at defendant Mercy's emergency department on July 6, 1998. Hospital staff conducted several tests including a chest x-ray, a ventilation profusion lung scan, and a computerized axial tomography (CAT) scan. These tests were interpreted by defendant Clive. The next day, July 7, 1998, Fournier died from what was later determined to be a ruptured spleen. On July 13, 1998, the probate court issued letters of authority appointing plaintiff as personal representative of Fournier's estate.
Pursuant to MCL 600.2912b, plaintiff mailed notices of intent on July 12, 2000, to six intended defendants via Federal Express for next day delivery. Next day delivery was significant because the two-year statute of limitations, absent tolling provisions, expired on July 13, 2000. However, because of what appears to be a clerical mistake in the office of plaintiff's counsel, all six notices of intent were placed in one Federal Express envelope and addressed to Paul Bruer, M.D.'s residential address. Federal Express made the delivery to Bruer's home on July 13, 2000. Because Bruer was out of town, his daughter accepted the delivery. Bruer returned home on July 16, 2000, and delivered the notices of intent to defendant Mercy's risk management department on July 17, 2000. Defendant Mercy's director of risk management delivered the notice of intent to defendant Clive on July 18, 2000. It appears that no notice of intent was drafted for defendant X-ray; certainly, it never received one.
Plaintiff filed the complaint on January 10, 2001, alleging that defendants were negligent in their medical treatment and care of Fournier. Among other things, plaintiff alleged that defendant Clive did not properly interpret the CAT scan results.
Defendants answered the complaint and moved for summary disposition, pursuant to MCR 2.116(C)(7) and (C)(10) on the ground that the statute of limitations had expired before defendant was served. Defendants argued that the limitations period was not tolled by MCL 600.2912b because plaintiff failed to comply with its express provisions. Specifically, defendants argued that plaintiff failed to mail the notices of intent to defendants' last known residential or business addresses. In response, plaintiff asserted that she complied with the statutory requirement that notices of intent be mailed before the limitations period expires. Plaintiff contended that a good faith effort at mailing is sufficient and that an innocent mistake, causing defendants no prejudice, should not result in the overly harsh remedy of dismissal. Plaintiff further argued that the purpose of MCL 600.2912b, to encourage settlement, was not disrupted by the mailing error. Finally, plaintiff argued that defendants possibly received the notices of intent sooner than they would have if plaintiff had mailed them on July 12, 2000, via ordinary postal service. Plaintiff pointed out that the statute turns upon the mailing date and not the receipt date.
The trial court found that plaintiff's mistake was not a "fatal one," concluding that all defendants received notice "in a timely manner and the purposes of the Statute, in this Court's opinion, were
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