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White v. Podiatry6/23/2005
UNPUBLISHED
Before: O'Connell, P.J., and Schuette and Borrello, JJ.
In this medical malpractice action, defendants moved for summary disposition pursuant to MCR 2.116(C)(7) and (8) on the basis that plaintiff's notice of intent to file suit and affidavit of merit were both deficient. The trial court granted the motion because it determined that plaintiff's notice was deficient in its statement of the applicable standard of care and the manner in which it was claimed that the standard was breached. MCL 600.2912b(4)(b) and (c). Plaintiff appeals as of right. We affirm. This case is being decided without oral argument pursuant to MCR 7.214(E).
This case arose from a surgery to remove a heel spur from plaintiff's foot on June 10, 2002. On June 3, 2003, plaintiff filed a notice of intent, which stated the following regarding the applicable standard of care:
2. APPLICABLE STANDARD OF PRACTICE OR CARE ALLEGED
What a podiatrist of ordinary learning, judgment or skill would or would not do under the same or similar circumstances.
With respect to identification of the manner that the standard was breached, plaintiff's notice stated:
3. THE MANNER IN WHICH IT IS CLAIMED THAT THE APPLICABLE STANDARD OF PRACTICE OR CARE WAS BREACHED
The podiatrist improperly performed removal of the heel spur and did not properly excise the spur removal of the left foot.
We agree with the trial court that the notice of intent was deficient. The purpose of the statutory requirements is to "notify potential malpractice defendants of the basis of the claims against them." Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 696 n 14; 684 NW2d 711 (2004). " he claimant 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. A statement that a procedure was improperly performed does not identify the manner in which it is claimed that the standard of care was breached. MCL 600.2912b(4)(c).
In light of our resolution of this issue, we need not address plaintiff's remaining arguments that address other potential bases for summary disposition in favor of defendants that were raised before, but not decided by, the trial court.
Affirmed.
Peter D. O'Connell, Bill Schuette.
BORRELLO, J. (dissenting).
I respectfully dissent from the majority's decision to affirm the trial court's decision to grant summary disposition in this matter because I believe that the majority's opinion gives MCL 600.2912b(4)(b) and (c) a far too restrictive reading. MCL 600.2912b(4)(b) and (c) were intended as notice statutes, and not, as argued by defendants and adopted by the majority, as statutes intended to deprive litigants claiming medical malpractice an opportunity to have their case heard. I additionally dissent because the guidelines allegedly laid out in Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 685; 684 NW2d 711 (2004), are so vague that dismissal of the action seems unwarranted when the trial court could have allowed amendment of the notice of intent.
For these reasons, I respectfully dissent.
Stephen L. Borrello
Page 1 Michigan Personal Injury Attorneys
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