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No. 137480
| Donna B. DeCosta, |
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Thomas H. Blaske |
Plaintiff-Appellant, |
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(Appeal from Ct of Appeals) |
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(Hillsdale - Smith, M.) |
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| David D. Gossage, D.O., and Gossage Eye Center, |
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Robert G. Kamenec |
Defendants-Appellees. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiff-Appellant's Application for Leave to Appeal>>
Plaintiff-Appellant's Supplemental Brief>>
Defendants-Appellees' Brief in Opposition to Application for Leave to Appeal>>
Defendants-Appellees' Supplemental Brief>>
Background
Dr. David Gossage performed cataract surgery on Donna DeCosta’s left eye on June 3, 2004. Gossage saw DeCosta at least seven times between June and October 2004 at 50 West Carlton Road in Hillsdale, where his business, the Gossage Eye Center, had been located since February 2004. DeCosta had several problems with her left eye following the cataract surgery. On November 20, 2006, DeCosta filed a medical malpractice complaint against Gossage and Gossage Eye Center. DeCosta maintained, in addition to other allegations, that the cataract surgery was unnecessary. The complaint was filed more than two years after DeCosta’s claim accrued on June 3, 2004, the date of the cataract surgery. The limitations period for a medical malpractice claim is two years under MCL 600.5805(6). However, the limitations period can be tolled upon the filing of a notice of intent that complies with MCL 600.2912b. The statute provides in part that “The notice of intent to file a [medical malpractice] claim … shall be mailed to the last known professional business address or residential address of the health professional or health facility who is the subject of the claim. Proof of the mailing constitutes prima facie evidence of compliance with this section.”
DeCosta mailed notices of intent to Gossage and Gossage Eye Center on June 1, 2006. However, the notices of intent were mailed to 46 South Howell in Hillsdale, Gossage’s former business address. Someone at that address accepted and signed for the notices of intent on June 5, 2006, and apparently forwarded them to Gossage. Gossage acknowledges receipt of the notices of intent on June 6, 2006, three days after the limitations period expired. On June 7, 2006, DeCosta mailed a second set of notices of intent to Gossage and Gossage Eye Center at the 50 West Carlton address. Gossage and the Gossage Eye Center moved for summary disposition, asking the trial court judge to dismiss the case. The defendants argued that DeCosta failed to comply with MCL 600.2912b(2) because she had not mailed the notices of intent to the defendants’ last known professional business address, as required by MCL 600.2912b. The trial court granted the motion for summary disposition and dismissed DeCosta’s complaint with prejudice.
DeCosta filed a claim of appeal. She argued that summary disposition should not have been granted because she timely mailed the notices of intent and the defendants had actual notice, since the notices of intent were forwarded to them. The Court of Appeals affirmed the trial court’s ruling in a split unpublished per curiam opinion. The majority agreed with the defendants’ reasoning. The dissenting judge acknowledged that DeCosta was aware of Gossage’s new address, but the judge said she could “perceive no evidence to suggest that plaintiff was aware that the new address was defendants’ sole or exclusive address.” DeCosta appeals.
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