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156850 - Drago Kostadinovski v Steven D Harrington, MD

Drago Kostadinovski and Blaga Kostadinivoski,

 

Mark Granzotto

 

Plaintiffs-Appellees/Cross-Appellants,,

 

v

(Appeal from Ct of Appeals)

 

 

(Macomb – Viviano, K.)

 

Steven D. Harrington, M.D., and Advanced Cardiothoracic Surgeons, PLLC,

 

Michael Cook

 

Defendants-Appellants/Cross-Appellees.

 

Summary

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.​