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Supreme Court returns a measure of sanity to Notice of Intent requirements

In Potter v. Richard McLeary, M.D., et al. and Kristyn H. Murry, M.D., et al., the Michigan Supreme Court continued its trend to a more reasonable interpretation of the tort "reform" statutes requiring malpractice victims to file Notices of Intent (NOI) and Affidavits of Merit (A/M) prior to or contemporaneous with their civil claims.  Potter suffered permanent spinal cord injury when his radiologist allegedly mis-read an MRI in June of 2001.  The Courts have spent the intervening years spluttering through an analysis of whether Potter's NOI and A/Ms were sufficient to prevent his claim from being permanently dismissed.

A majority of the Court held on July 31 that a victim must provide the NOI to any Professional Corporation who may be sued, whether or not an NOI has been sent to the treating professional, but that the NOI need not contain the phrase "vicarious liability," explaining to the P.C. that it is being held accountable for it's employee's mistake.  The majority of the Supreme Court found it "troubling" that the doctor's P.C. admitted employing the doctor and admitted that the NOI adequately addressed the doctor's breach of the standard of care, yet the P.C. sought permanent dismissal of the claim because the NOI did not inform the P.C. that it employed Dr. Murry, the alleged at-fault.  The Court noted that this argument "exalts form over substance in an intolerable manner."

While Clifford Taylor was on the Supreme Court with a majority of Justices who owed their election or appointment to the Chamber of Commerce and the insurance industry, insurance interests could successfully pursue arguments devoid of common sense or reasonable public policy, however, perhaps that era has finally ended.  We hope so.  Perhaps victims like Brian Potter will finally get a day in court and the courts of our state won't spend months and years analyzing the semantic equivalent of "how many angels can fit on the head of a pin."

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