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Jackson v. Lieberman7/12/2005
UNPUBLISHED
Before: O'Connell, P.J., and Schuette and Borrello, JJ.
Plaintiff appeals as of right from a circuit court order granting defendants' motion for summary disposition. Defendants cross appeal from that order and from a prior order granting plaintiff's motion to correct his affidavit of merit. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
I. FACTS
Plaintiff went to Harper Hospital February 13, 2001, for a radiofrequency catheter ablation, administered by the individual defendants, Lieberman and Meissner. Plaintiff claims that defendants Lieberman and Meissner were negligent during the procedure, causing third degree radiation burns that degenerated into ulcerous sores. Plaintiff also claims defendants Detroit Medical Center (DMC) and Harper Hospital breached the standard of care by failing to provide and supervise properly trained electrophysiologists and for failing to have appropriate policies to prevent excessive radiation exposure during this procedure. Plaintiff retained an attorney who sent defendant Harper Hospital notice of intent to sue on August 16, 2001. Although the notice of intent stated that it was from Charlissa Aaron, the body of the notice referred to the burns suffered by plaintiff. Subsequently, plaintiff retained another attorney who sent the other defendants; Lieberman, Meissner, and DMC, a notice of intent to sue on February 3, 2003. Plaintiff filed this medical malpractice suit on August 4, 2003. Defendants Lieberman, Meissner and DMC filed a motion for summary disposition, claiming the limitations period expired on February 13, 2003, and that plaintiffs second notice of intent to sue did not toll the statute of limitations.
In the alternative, defendants claimed plaintiff failed to serve a properly notorized affidavit of merit with the complaint. Defendants argued that the affidavit submitted by plaintiff did not indicate it had been signed under oath before a notary . Prior to the hearing on defendants'motion for summary disposition, the trial court granted plaintiff's motion to file a corrected affidavit of merit and authorized plaintiff to have the notary affix her seal and affirmation to the affidavit of merit. In December 2004, defendants filed a claim of cross appeal from the trial court's granting of plaintiff's motion to file a corrected affidavit of merit.
In his response to defendants' motion for summary disposition, plaintiff argued the August 2001 notice of intent to Harper Hospital did not provide appropriate notice because it identified Aaron as the claimant, it did not list any defendants other than Harper Hospital, and it did not include a statement of plaintiff's damages. Therefore, the February 2003 notice of intent was the only valid notice, thus tolling the limitations period until August 4, 2003. The trial court disagreed.
Plaintiff conceded that his claim against Harper Hospital was barred by the statute of limitations. The trial court granted defendants' motion for summary disposition, ruling that because plaintiff had sent a notice of intent in August, 2001, that was the only notice that could be filed and the limitations period could not be extended by additional notices of intent sent to other parties.
II. STANDARD OF REVIEW
The trial court's ruling on a motion for summary disposition is reviewed de novo. Kefgen v Davidson, 241 Mich App 611, 616; 617 NW2d 351 (2000). Whether a cause of action is barred by the statute of limitations is a question of law that we also review de novo. Ins Comm'r v Aageson Thibo Agency, 226 Mich App 336, 340-341; 573 NW2d 637 (1997).
III. ANALYSIS
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