Malpractice claim dismissed due to defects in Notice of Intent, despite change in the law
The family of Steven Zunich sued Jeffrey S. Newman, MidMichigan Medical Center-Midland and other health care providers for wrongful death. Zunich suffered several seizures which were ultimately traced to a brain hemorrhage, underwent emergency surgery, and eventually died. His family claimed that his death was preventable and that his treaters had breached the standard of care in responding to his presentation. The Court held, however, that the mandatory Notice of Intent filed by the family prior to filing was deficient in particularized details and dismissed the lawsuit.
The family appealed, arguing that under the Supreme Court's decision in Bush v. Shabahang, it should have been allowed to file an amended Notice spelling out the "specific averments as to each defendant" which the court had deemed inadequate. The Court of Appeals rejected this argument. The Supreme Court ultimately heard the case and sent it back to the trial judge to consider in the context of Bush. The trial judge held a hearing and again denied the family the right to amend. The family appealed and this week the Court of Appeals addressed its allegations of error.The Court ruled that because the Bush decision, allowing amendment of the NOI, was based on a statutory amendment to the Notice of Intent requirement, Bush was not applicable to cases arising before the statute was changed to clarify the right to amend. The Court of Appeals judges pointed out that it was bound to reach this decision, given the Republican majority of the Supreme Court's recent decision on this precise point. Thus, yet another injury case will be decided, not on its merits, but rather on a technicality: the Legislature took two tries to write a clear statute allowing amendment of the pre-suit NOI. Cases arising before the clarification would continue to be permanently dismissed if there was any deficiency in the wording of the Notice.