Court throws out malpractice case because Notice of Intent was received by doctor but mailed to his former address
In yet another perverse example of some Michigan judges' willingness to elevate the interest of insurance companies above legitimate expectations of justice, two judges of the Court of Appeals have dismissed a malpractice action because the Plaintiff mailed her Notice of Intent to the doctor's previous address--and not to his newest address. The case was dismissed and the statute of limitations was allowed to run, even though the doctor admitted recieving the Notice in his forwarded mail and the Plaintiff was not aware that the doctor had closed his previous office several months earlier. The Engler majority on Michigan's Supreme Court has created an atmosphere so poisonously partisan that lower courts no longer consider issues of common sense or fairness when mapractice claims are examined.
In the instant case, Decosta v. Gossage, the dissenting judge pointed out that MCL 600.2301 explicity directs that "the court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties". Judge Jansen emphasized that not only did the Defendant receive the Notice and suffer no prejudice, there was not even an argument that any substantive right of the Defendant was affected.
We don't know the merits of Decosta's case. Perhaps she was over-reaching or there was some other flaw, despite the fact that she filed an Affidavit of Merit signed by another specialist. Regardless, having complied with the substantive procedural requirements of the law, her case should have been considered on the merits and not dismissed simply because the address to which she mailed her initial notice was not the doctor's "last" known address. When the courts of a state make decisions which are this devoid of common sense and justice, this partisan and pandering, the system is broken. This decision is a source of shame for all of us.