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Michigan Supreme Court recognizes substantial compliance with Notice of Intent mailing

Donna DeCosta sued David D. Gossage for malpractice after suffering severe eye complications, allegedly caused by unnecessary cataract surgery in unsanitary conditions.  Her Notice of Intent [NOI] was mailed to the office where Gossage treated her, however, he had allegedly closed this office some days prior to receipt of the Notice.  According to the postal records, the Notice was received at the (closed) office prior to the statute of limitations running, and then promptly forwarded, by an unknown person, to Gossage's second office.  Based on these facts, DeCosta's claim was dismissed by the trial court and the Court of Appeals because the NOI was not mailed to Gossage's "last known business address" prior to the running of the statute of limitations. 

Although the holdover Engler appointees to the Court would have upheld the dismissal, the majority rejected that result:  the Justices held that there was no proof in the lower court to justify the conclusion that the delivery address was a "prior" address and not a second, current address for the Defendant at the time of service.  (Indeed, it was obviously the last professional address "known" to the victim.)  The majority considered that its holding was buttressed by the fact that delivery was in fact promptly effected on the Defendant and a copy of the NOI was admittedly received within five days of mailing.  The majority also held that such a "minor technical defect in the proceedings" should not control the outcome of litigation and may be cured "in the furtherance of justice" under the state statute that provides for amendment of procedural errors that have not caused prejudice.  The Court also pointed out that a holding such as that advocated by the "Engler Minority"-- i.e., deciding a claim based on a three day delay in notice and thereby eliminating the potential for a negotiated settlement-- was contrary to the clearly stated legislative intent.

Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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