Last February, The Michigan Bar Journal published Sachs Waldman attorney Linda Turek's article called "Plaintiff's Notice of Intent: A Game-Ending Escape for the Med/Mal Defendant." Just past its one year publication anniversary, the article remains relevant as the expectations for a plaintiff's Notice of Intent (NOI) become more difficult to meet and less predictable. The NOI, required by Michigan statute to promote settlement of meritorious claims, must declare the principle nature of the dispute rather than bothering with the small, extensive details that would be needed to sway a jury. "What was previously a notice of intent to sue," she says, "has been transformed into a magnet for judicial nitpicking." She observes the courts' growing "tendency to microscopically dissect NOI in search of deficiencies and inaccuracies...[eliminating] any opportunity for time-barred plaintiffs to correct or amend a purportedly deficient or inaccurate NOI and [allowing] the defendants to walk." Courts are adopting a growing concern for detail and accuracy in the notice of intent that, in earlier years, would have been saved for the court room (if court even proved necessary).
The problem here lies not in the inconvenient demand for detail (which surely a practiced attorney is well-accustomed to), but rather this demand's clash with time constraints put on the plaintiff. The plaintiff has a certain time before which they must take action; defendants can now bide their time until following the deadline, at which point they may call attention to the NOI's deficiencies. Thus, the defendant leaves the plaintiff with no time to fix the problems, and the claimant can consequently "lose their day in court." As deficiencies grow easier to come by, so does the loophole through which defendants can, as Turek puts it, "walk."
Turek leaves the issue with a sense of realism. The best defense against this growing trend is to fight it with strong specificity. She suggests concrete, specific language that grinds every detail into simple, easily understood terms. Finally, she acknowledges the importance of openly warning clients about the virtually unforeseeable pitfalls that can come with the NOI.
Linda Turek is a registered nurse and attorney, employed by Sachs Waldman since 1997. She specializes in medical malpractice on behalf of patients and/or their families, and is an adjunct professor of Trial Advocacy at the Wayne State University Law School.
But also, see Bush v. Shabahang, 2009 Mich. LEXIS 1598; 772 NW 2d 272 (2009).