Opinion
No. 297456 No. 297457
06-12-2012
VICKI L. ZUNICH, as Personal Representative for the Estate of STEVEN ZUNICH, and as Next Friend for CHARLES ZUNICH and MATTHEW ZUNICH, Minors, Plaintiff-Appellant, v. MIDMICHIGAN MEDICAL CENTER-MIDLAND, JEFFREY S. NEWMAN, M.D., FAMILY MEDICINE ASSOCIATES OF MIDLAND, PC. a/k/a FAMILY PRACTICE ASSOCIATE OF MIDLAND, P.C., KENNETH M. MACKINNON, M.D., JAMES H. FRYE, M.D., MIDMICHIGAN HEALTH, and FAITH D. FUENTES, M.D., Defendants-Appellees. VICKI L. ZUNICH, as Personal Representative for the Estate of STEVEN ZUNICH, and as Next Friend for CHARLES ZUNICH and MATTHEW ZUNICH, Minors, Plaintiff-Appellant, v. FAMILY MEDICINE ASSOCIATES OF MIDLAND, P.C., Defendant-Appellee, and JERRY L. FERRELL, M.D., and ROBERTA L. CORBAT, Defendants.
UNPUBLISHED
Midland Circuit Court
LC No. 02-005382-NH
Midland Circuit Court
LC No. 03-005843-NH
Before: BORRELLO, P.J., and O'CONNELL and TALBOT, JJ. PER CURIAM.
In this wrongful death medical malpractice action, Vicki L. Zunich appeals as of right from the circuit court's March 23, 2010 order, which denied Zunich's request to reinstate her case and proceed to a jury trial. We affirm.
Zunich's husband suffered a series of seizures, underwent emergency brain surgery, and eventually died from a brain hemorrhage, which was determined to be the cause of the seizures. Zunich filed suit after sending an original and amended notice of intent ("NOI") to MidMichigan Medical Center - Midland, Jeffrey S. Newman, M.D., Family Medicine Associates of Midland, P.C. a/k/a Family Practice Associates of Midland, P.C., Kenneth M. MacKinnon, M.D., James H. Frye, M.D., MidMichigan Health, and Faith D. Fuentes, M.D. ("Health Care Providers"). The Health Care Providers moved for summary disposition on the ground that the NOIs lacked the "specific averments as to each defendant" required by the statute in medical malpractice suits. The circuit court agreed and granted the Health Care Providers' motion. The court also dismissed the case with prejudice due to the running of the statute of limitations.
On appeal, this Court affirmed, concluding that the NOIs were insufficient pursuant to Roberts v Mecosta Co Gen Hosp Zunich appealed to our Supreme Court, which in lieu of granting leave to appeal, vacated this Court's judgment and the circuit court's final order and remanded to the circuit court "for reconsideration in light of [Bush v Shabahang and Potter v McLeary. ]"
Zunich v Family Med Assoc of Midland, PC, unpublished opinion per curiam of the Court of Appeals, issued May 15, 2007 (Docket Nos. 265027, 265028).
Roberts v Mecosta Co Gen Hosp, 470 Mich 679; 684 NW2d 711 (2004).
Bush v Shabahang, 484 Mich 156; 772 NW2d 272 (2009).
Potter v McLeary, 484 Mich 397; 774 NW2d 1 (2009).
Zunich v Family Med Assoc of Midland, PC, 485 Mich 940; 774 NW2d 325 (2009).
On remand, the circuit court held that neither Bush nor Potter were applicable, and concluded that its "earlier order granting summary disposition to Defendants was and is correct and consistent with applicable law." It thus denied Zunich's request to reinstate her case. It is from this decision that Zunich now appeals. Whether Bush or Potter is applicable in the instant case is a question of law. Thus, this Court's review of the trial court's decision on that issue is de novo.
Bush, 484 Mich at 164.
On appeal, Zunich argues that the trial court erred when it determined that Bush did not apply under the facts of this case. We disagree. As the trial court noted, the Bush decision interpreted the amended version of MCL 600.5856, which became effective on April 22, 2004, and footnote 34 to the Bush opinion made it clear that the Court was not overruling the jurisprudence concerning the pre-amendment statute. Our Supreme Court reached this same conclusion in a case it decided during the pendency of this appeal. "An order that is a final Supreme Court disposition of an application and that contains a concise statement of the applicable facts and reasons for the decision is binding precedent." Thus, we cannot turn a blind eye to the doctrine of stare decisis as "[t]his Court is bound by stare decisis to follow the decisions of our Supreme Court."
Zunich does not raise any issue regarding the trial court's conclusion that Potter had no application to the instant case. Zunich's only issue is with Bush.
Bush, 484 Mich at 175-176 n 34.
Johnson v Hurley Med Group, 491 Mich 892; 810 NW2d 273 (2012).
Dykes v William Beaumont Hosp, 246 Mich App 471, 483; 633 NW2d 440 (2001).
Griswold Prop, LLC v Lexington Ins Co, 276 Mich App 551, 563; 741 NW2d 549 (2007).
--------
Because Zunich filed her NOIs years before the effective date of the amendatory act, the pre-amendment version of the statute is applicable, and Bush, which addressed the post-amendment version, does not apply.
Affirmed.
Stephen L. Borrello
Peter D. O'Connell
Michael J. Talbot