by Richard D. Weber, J.D.
MDA Legal Counsel
Published in the April/May 1999 issue of the Journal
Question: I received a document entitled "Notice of Intent to Sue," which did not specifically name me, but included "all professionals who were involved" in the treatment of the plaintiff. Since I was one of the dentists who did treat the person named as the plaintiff, what should I do with respect to this notice? My treatment of this adult patient occurred more than one and one-half years ago. Would you please explain the notice provision, advise whether it has been upheld by the appellate courts, and direct me on the best course of action?
Answer: The malpractice reform legislation that took effect April 1, 1994 contained a pre-suit notice requirement. It provides, in relevant part, that a person shall not commence an action alleging malpractice against a health professional unless the person has given the health professional written notice under this section not less than 182 days before the action is commenced. The act then provides that the notice given to the health professional shall contain a statement of at least all of the following: (a) the factual basis for the claim; (b) the applicable standard of practice or care alleged by the claimant; (c) the manner in which it is claimed that the applicable standard of care was breached by the health professional; (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; and (f) the names of all health professionals the claimant is notifying under this section in relation to the claim.
Last year the Michigan Court of Appeals upheld the constitutionality of this notice provision. MDA legal counsel filed an amicus curiae brief in support of the constitutionality, which was instrumental in the court's decision.
In general, the Statute of Limitations applicable to adults is two years from the alleged malpractice occurrence. The Statute of Limitations is tolled, which means it does not run during the 182 days, if the Notice of Intent is given in compliance with the Notice of Intent Statute.
The Michigan Court of Appeals recently held that the Statute of Limitations is not tolled if the Notice of Intent does not comply with the statute. The statutory use of the word "shall" makes mandatory the inclusion of the names of all health professionals notified. The Court of Appeals held that a description in the notice is not a name as required by the statute. Therefore, the plaintiff was held to have failed to comply with the specific notice requirement and, therefore, the Statute of Limitations was not tolled. In that case, the Court of Appeals reversed the Trial Court and held that the complaint, which was filed after the expiration of 182 days and more than two years after the alleged malpractice occurred, was barred by the Statute of Limitations. If the Notice of Intent had set forth the names of the professionals who treated the plaintiff, the Statute of Limitations would have been tolled and the case would not have been dismissed.
Based upon this recent Court of Appeals decision, it appears that the Statute of Limitations in your case has not been tolled. Unless the plaintiff's attorney corrects the deficient Notice of Intent To Sue, it is probable that the suit will be barred upon expiration of two years after the date the alleged malpractice occurred with respect to your treatment of the patient.
What you should do in this instance is the same as what you should do in any instance where you receive a complaint or other legal document. The Notice of Intent to Sue should be immediately forwarded to your professional liability insurance carrier. If you are uninsured, the notice should be immediately forwarded to your personal attorney. The Statute of Limitations and related legal issues discussed in this column can then be applied to the specific facts in your case. If a complaint is filed based upon the existing Notice of Intent, it is likely that you will have a valid Statute of Limitations defense and the case will be dismissed against you.