Michigan Court of Appeals Clarifies Relationship Between Allegations Allowed in a Medical Malpractice Complaint Which Were Not Specifically Outlined in the Plaintiff's Notice of Intent

On March 30, 2010 the Michigan Court of Appeals held that a medical malpractice Notice of Intent ("NOI"), which is mandated by statute as a means to encourage pre-litigation settlement, need not be as detailed and specific as the allegations in the complaint.  MCL 600.2912b, which governs NOIs, requires plaintiffs to notify potential defendants at least 182 days prior to filing a medical malpractice complaint and to provide details about the factual basis for the claim, the applicable standard of care, the manner in which the standard of care was alleged to have been breached, and a statement of what the health care professional should have done to avoid the breach.

In Decker v. Stoiko, __Mich App __; __ NW2d __ (2010) (2010 WL 1223052), the plaintiff claimed in her NOI that defendants "failed to properly care for, evaluate, treat, and monitor [the plaintiff's minor's]…condition." A proposed amended complaint was much more specific, itemizing seventeen alleged breaches of the standard of care.  The defendants challenged the amended complaint, arguing that the seventeen specific allegations could not be included because they were "new," i.e., they had not been specifically and individually stated in the NOI.  Plaintiff argued that the seventeen allegations were not new because all of them were failures to "properly care for, evaluate, treat, and monitor" the child's condition.  The Court of Appeals agreed with Plaintiff, reasoning that the purpose and language of the NOI statute was met when the NOI contained general allegations, even though an amended complaint was more detailed:

"[T]he NOI, examined as a whole, must advise potential defendants of the basis of claims against them.  However, because the NOI comes at an early stage of the malpractice claim, the plaintiff does not have to craft the notice with omniscience.  Rather, the plaintiff must make good-faith averments that provide details that are responsive to the information sought by the statute and are as particularized as is consistent with the early notice stage of the proceedings."

(Decker, supra, at 5, internal citations omitted).  The Court distinguished Decker from Gulley-Reaves v Baciewicz, 260 Mich App 478; 679 NW2d 98 (2004), on the basis that the complaint in Gulley-Reaves (which was held to be improper) contained an entirely new theory of liability which did not relate back to the allegations contained in the NOI.