Missed Perforated Ulcer and the NOI/AOM Trap
On February 2, 2023, Leona, a 58-year-old school bus driver, went to a Michigan emergency department with 10/10 epigastric pain, vomiting, and a history of NSAID use for arthritis. The ED physician diagnosed gastritis, gave oral antacids, and discharged her after four hours. The next morning she collapsed at home; emergency surgery found a perforated duodenal ulcer with peritonitis. She spent 21 days in ICU, required two additional surgeries, and now has short bowel syndrome requiring parenteral nutrition. Her noneconomic damages are substantial; her past medical bills are $480,000 and future care is estimated at $2.3 million. On January 20, 2025, her attorney mailed a notice of intent to the ED physician and the hospital. On July 25, 2025, she filed a complaint without an affidavit of merit. She filed an AOM on October 28, 2025, signed by a gastroenterologist who is board certified in internal medicine and gastroenterology but not emergency medicine. The ED physician is board certified in emergency medicine. The statute of limitations is two years. The defense moves to dismiss.
1. Was the notice of intent timely and was the complaint timely filed? Analyze the 182-day waiting period, the two-year statute of limitations, and tolling.
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The NOI timing is the first issue. MCL 600.2912b requires the plaintiff to give notice at least 182 days before filing. Leona's injury was February 2, 2023, and the two-year statute would expire February 2, 2025. The NOI was mailed January 20, 2025, within the limitations period, and it tolled the statute under MCL 600.5856. The 182-day period ran to about July 21, 2025. The complaint was filed July 25, 2025, so it was not premature. The NOI should include the factual basis, the standard of care, the breach, and the proximate cause. If it omitted one of those, the defendant may argue a defect, but the statute allows amendment and requires a showing of prejudice. The complaint was timely. The more serious issue is the affidavit of merit, not the notice or the statute of limitations.
2. Evaluate the affidavit of merit. Was it timely? Does the gastroenterologist qualify under MCL 600.2169? What are the consequences of the defects?
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MCL 600.2912d requires an affidavit of merit signed by an expert who meets MCL 600.2169. The AOM must be filed with the complaint or within 91 days after the complaint is filed. July 25 to October 28 is 95 days, so the AOM was four days late. The trial court may dismiss the complaint with prejudice for noncompliance, although some courts allow a short extension if the delay is not prejudicial. The second problem is the expert's qualifications. The defendant is board certified in emergency medicine. Under MCL 600.2169, the expert must be board certified in the same specialty or, if not board certified, must have substantial experience in that specialty. A gastroenterologist who is board certified in internal medicine and gastroenterology is not board certified in emergency medicine. He may qualify only if he has substantial experience in emergency medicine during the relevant time. The AOM should state that basis. If the expert does not qualify, the AOM is invalid, and the case may be dismissed. Leona should immediately retain an emergency-medicine expert and seek leave to file a corrected AOM, arguing that the defendant was not prejudiced and that the 91-day period should be extended. The defense will argue that dismissal is mandatory.
3. Analyze the noneconomic damages cap and comparative fault. Is short bowel syndrome eligible for the higher cap? How should the $2.3 million future-care estimate be handled?
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Noneconomic damages in medical malpractice are capped by MCL 600.1483. The base caps are $280,000 and $500,000, adjusted annually by the state treasurer. The higher cap applies if the plaintiff has a permanent impairment of a major bodily function or permanent serious disfigurement. Short bowel syndrome requiring parenteral nutrition is a strong candidate for the higher cap because it is a permanent impairment of a major bodily function. The plaintiff should plead both the cap category and the inflation-adjusted amount. The cap does not limit past or future medical expenses, lost wages, or other economic damages. The $2.3 million future-care estimate must be reduced to present value and supported by a life-care plan. Comparative fault may reduce both economic and noneconomic damages under MCL 600.2959. If Leona delayed seeking care after discharge, the defense may argue that her delay caused the perforation or worsened the outcome. The plaintiff should counter with expert testimony that the perforation was already developing and that the ED's failure to order imaging or admit her was the proximate cause. The cap is an issue for the court, not the jury; the jury should return a verdict without being told the cap, and the court will reduce it.