Court upholds notice-of-intent requirement in medical liability cases

Tanya Albert Henry , Contributing News Writer

In a victory for Michigan physicians, the state’s highest court refused to consider a case in which a patient’s family asked to proceed with a medical liability case against her physician without properly sending him a notice of intent (NOI) before the statute of limitations expired.

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In its order, Michigan Supreme Court justices simply said, “We are not persuaded that the questions presented should be reviewed by this Court.”

The proposed questions were whether a recent court decision would change the statute of limitations deadlines in this case, Marquardt v. Umashankar, and whether the NOI had to be sent to the physician directly, or if sending a letter addressed to the health system satisfied the requirement.

In a joint amicus brief, the Litigation Center of the American Medical Association and State Medical Societies and the Michigan State Medical Society (MSMS) said the lower-court decisions not allowing the case to go forward should stand because Michigan law and case law are clear on what an NOI requires.

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“Failure to provide notice is not excused by lack of prejudice,” the brief told the court. It said the court “should refrain here from accepting unsubstantiated claims of actual notice to excuse the failure to follow—indeed even attempt to follow—precise notice of intent calculus for directing and addressing an NOI to the health professional.”

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The lawsuit has a long history, stemming from a 2007 mitral valve replacement surgery at the University of Michigan Hospital. The lawsuit alleged that Sandra Marquardt was negligently given aprotinin (marketed as Trasylol) and that her death resulted from complications from the drug.

In 2009, an NOI sent to the University of Michigan Health System said Marquardt intended to file a lawsuit against the health system and three physicians were named as well, including Vellaiah Durai Umashankar, MD. The NOI was not sent to the individual physicians.

In 2010, Marquardt sued the University of Michigan, but didn’t name Dr. Umashankar as a defendant. In 2011, Marquardt’s estate, which had taken over the lawsuit after her death, served Dr. Umashankar a new NOI and filed a lawsuit against him in 2012. The trial court ruled that the claim against Dr. Umashankar was not allowed because the statute of limitations had run out.

The Michigan Court of Appeals agreed and also said the initial 2009 NOI “did not toll the statute of limitations with regard to defendant Umashankar because it was not directed or addressed to him.” But the Michigan Supreme Court vacated that decision and sent it back to the trial court to determine if a recent court case had changed the statute of limitations issue.

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The trial court determined it didn’t change the outcome and dismissed the case. The appellate court agreed and Michigan Supreme Court’s May decision not to consider the appeal leaves Michigan case law on the issue intact.

As the AMA Litigation Center and MSMS explained in their brief, Michigan law is very clear that notice must be given to each health professional. Consequently, mailing the NOI to the risk manager of a health facility, as happened in this case, does not satisfy that requirement. In addition, Marquardt did not show she “reasonably” tried to discover Dr. Umashankar’s “last known business address,” as required.

Finding otherwise, the brief said, would reverse an entire body of Michigan law.

The brief said that “it is only through the proper interpretation and application of the statutory language that the legislative purpose of the notice of intent statute can be effectuated consistently and pervasively: promote settlement without the need for formal litigation and reduce the cost of medical liability litigation, while still providing compensation for meritorious medical liability claims that otherwise might be precluded from recovery because of litigation cost.”