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

On March 30, 2010 the Michigan Court of Appeals clarified the relationship between Notices of Intent ("NOI"s, which are statutorily designed to encourage settlement negotiation by putting medical malpractice defendants on notice of alleged wrongdoing prior to the filing of a complaint) and the allegations later allowed in a complaint and eventually presented to a jury.  MCL 600.2912b, which governs NOIs, requires plaintiffs to provide certain information to potential defendants at least 182 days prior to filing a medical malpractice complaint.  Mandatory information includes 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 description 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 Court of Appeals reasoned that the purpose and language of the NOI statute was met when a NOI contained general allegations, even though an amended complaint was more detailed.  In this case, 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 and listed seventeen detailed alleged breaches of the standard of care, but did not add any additional potential causes for the minor's injury (other than the alleged failure to properly care for, evaluate, treat, and monitor the child's condition).  The defendants argued that the seventeen specific allegations could not be included in the complaint because they were "new," as they were not specifically and individually stated in the NOI.  The Court of Appeals disagreed, reasoning that:

"the 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 this case from a previous ruling in Gulley-Reaves v Baciewicz, 260 Mich App 478; 679 NW2d 98 (2004), noting that the complaint in that case (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.