Michael J. Cook Obtains Affirmance of Order Denying Relief Under MCL 600.2310 in Medical-Malpractice Action


In Kostadinovski v Harrington, the plaintiffs wanted to replace their original medical-malpractice claims, which they abandoned, with an entirely new theory. On remand from a prior appeal, the trial court ruled that the plaintiffs could not amend their notice of intent to sue to include the new claim. The Court of Appeals affirmed. Collins Einhorn appellate attorney Michael J. Cook represented the defendants on remand and in the appeals.


The parties in Kostadinovksi disputed the process for adding a new claim against a defendant in a medical-malpractice case. The plaintiffs argued that they didn’t have to do anything other than move to amend the complaint. The defendants argued that the plaintiffs still had to give notice of their intent to sue for the claim and, since they didn’t, amending the complaint would be futile.

In 2017, the Court of Appeals rejected the plaintiffs’ argument in a published opinion. Kostadinovski v Harrington, 321 Mich App 736; 909 NW2d 907 (2017) (“Kostadinovski I”). But it remanded based on an issue the plaintiffs hadn’t raised in the trial court—whether they could amend their notice under MCL 600.2301 to include the new claim.

The parties filed cross-applications for leave to appeal in the Supreme Court. Though it heard arguments on the applications, the Court ultimately denied both applications.

The case returned to the trial court. After supplemental briefing and argument on the new issue, the trial court denied relief under MCL 600.2301. The right to notice was a “substantial right” under Michigan case law. And the plaintiffs didn’t show a good faith attempt to comply with the notice requirement because they never sent a new notice and they could have discovered the new claim at the beginning of the case.

The Court of Appeals affirmed the trial court. The court agreed that “defendants’ substantial interests were implicated” because the new “claims were not even referenced in plaintiffs’ [original notice].” The court also agreed that “discovery was unnecessary to uncover [the new] claims.” The plaintiffs’ notice “simply did not address a theory of liability that plaintiffs could have made but did not.” And, though they could have, “plaintiffs never attempted to cure the omissions of their original [notice] by sending an amended [notice] to defendants.”

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