The Court of Appeals released a published opinion on October 24, 2017 addressing the analysis required by a trial court where the plaintiff’s experts in a medical malpractice action abandon the standard of care theories in the plaintiff’s notice of intent (NOI) and articulate entirely new standard of care theories not addressed in the notice of intent.  Kostadinovski v Harrington, ___ Mich App ___; ___ NW2d ____ (2017) (Docket No. 333034).

In Kostadinovski, the plaintiffs served a NOI asserting six different alleged breaches of the standard of care.  The plaintiffs then filed a complaint and affidavit of merit asserting the same six breaches of the standard of care asserted in the NOI.  During discovery, the plaintiffs’ experts disavowed the standard of care and causation theories asserted in the NOI and advanced a new theory relating to alleged failure to monitor and treat the patient’s intraoperative hypotension.  At the conclusion of discovery, the plaintiffs filed a motion to amend their complaint to add the new theory. The defendants filed a motion for summary disposition contending that plaintiffs could not pursue the new theory because it was not included in the NOI.  The trial court granted the defendants’ motion for summary disposition as to the existing claims and denied the plaintiffs’ motion to amend their complaint based on futility.  The trial court found that the plaintiffs’ failure to include the hypotension theory in the NOI rendered any attempt to amend the complaint to add the new theory to be futile.

On appeal, the Kostadinovski panel held that the Supreme Court’s opinion in Bush v Shabahang required the trial court to apply MCL 600.2301 when considering the futility of the proposed amendment.  Under Bush and MCL 600.2301, any defects in the content of a NOI must be amended/disregarded so long as the plaintiff made a good faith effort to comply with the content requirements of MCL 600.2912b.  Based on this holding, the Kostadinovski panel reversed and remanded directing the trial court “to engage in an analysis under MCL 600.2301 to determine whether amendment of the NOI or disregard of the prospective NOI defect would be appropriate.”  The panel further directed the trial court to address the defendant’s arguments regarding undue delay and undue prejudice even if it ruled in favor of the plaintiff on the MCL 600.2301/futility issue.  Finally, the panel rejected the plaintiffs’ argument that it was unnecessary to consider MCL 600.2301 or the sufficiency of the NOI at all given that plaintiffs satisfied the statutory requirements at the time they filed the original complaint.  In rejecting this argument, the panel noted that “the approach suggested by plaintiffs would undermine the legislative intent and purpose behind MCL 600.2912b.”

Kostandinovski is a potentially significant opinion that provides some clarity regarding the analysis required of the trial court where a plaintiff’s experts articulate a new theory of liability not addressed in the plaintiff’s NOI.  Specifically, under Kostandinovski the trial court is required, at minimum, to address whether the plaintiff made a good faith effort to comply with the NOI requirements relative to the new theory of liability not included in the original NOI.  Presumably, this analysis would include consideration of whether the plaintiff could have discovered the theory of liability based on information available when he/she drafted the NOI.  The Kostadinovski opinion also requires the trial court to consider whether a request to amend the complaint to add a new theory of liability not included in the NOI should be denied due to undue delay or unfair prejudice to the defendant.

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