Pursuant to MCL
600.2912b, “a person shall not commence an action alleging medical malpractice
against a health professional or health facility unless the person has given
the health professional or health facility written notice under this section
not less than 182 days before the action is commenced.” The written notice of
intent (NOI) shall contain (among other things) a statement of the factual
basis for the claim, the standard of care, how it was breached, the action that
should have been taken, and how the breach proximately caused the injury
claimed in the notice. Plaintiffs sent defendant Dr. Steven Harrington a NOI
alleging multiple breaches of the standard of care. As discovery proceeded,
plaintiffs acknowledged that the allegations in their NOI did not prove to be
valid, but they sought to amend their complaint to raise an additional alleged
breach that they had discovered. The trial court denied their motion to amend
as futile, reasoning that the new theory was not in the NOI and that the
proposed amendment would bypass the statutory requirements for filing a medical
malpractice claim. In a published opinion, the Court of Appeals reversed in
light of Bush v Shabahang, 484 Mich
156 (2009), and remanded the case to the trial court for consideration of MCL
600.2301 to determine whether it would be appropriate to allow plaintiffs to
amend their NOI. The Supreme Court has directed oral argument on defendants’
application for leave to appeal and plaintiffs’ application for leave to cross
appeal to address whether and how, consistent with MCL 600.2912b, a plaintiff
in a medical malpractice case may amend the complaint to include newly
discovered claims against an existing defendant.