Wrongful death action alleging medical malpractice; Dismissal for failure to comply with court rules or a court order; MCR 2.504(B)(1); Whether a lesser sanction would better serve the interests of justice; Dean v Tucker; Distinguishing Marquette v Village of Fowlerville & Bass v Combs; Notice of intent (NOI); Tyra v Organ Procurement Agency of MI; Tolling; MCL 600.2912b(1). Trowell v Providence Hosp; Affidavit of merit (AOM); MCL 600.2912d; Expert qualifications; MCL 600.2169; Woodard v Custer; Whether plaintiff’s attorney derived a reasonable belief that plaintiff’s expert & defendant-doctor matched specialties on the basis of the then-available information; Geralds v Munson Healthcare

The court held that the trial court abused its discretion by dismissing plaintiff-estate’s complaint without expressly considering the Dean factors on the record, including consideration of why plaintiff’s attorney was not present and whether a lesser sanction than dismissal without prejudice might better serve the interests of justice. It also held that plaintiff’s NOI and its proposed expert’s AOM were adequate. Plaintiff sued defendants-hospital and medical providers for the wrongful death of the decedent. The trial court dismissed the complaint after plaintiff’s counsel failed to appear, as ordered, for a hearing. The court held that the trial court’s dismissal of the case was an abuse of discretion. It rejected defendants’ argument that, under the circumstances, “dismissal was so clearly appropriate that the trial court’s failure to consider the Dean factors should be excused.” It noted that although the record “certainly does not foreclose the possibility that dismissal was” appropriate, it was “not persuaded that the circumstances were so egregious that [it] should usurp the trial court’s role.” The court found it “somewhat disingenuous for defendants’ attorneys to have failed to ensure that the trial court knew plaintiff’s counsel had not simply decided not to show up for no reason at all. That plaintiff’s attorney was suffering from a communicable and potentially-serious disease, and thus really should not have been exposing others to such contagions in any event, should have been expressly considered by the trial court before it imposed the sanction of dismissal.” The court also rejected defendants-doctor and medical practice’s argument on cross appeal that they were entitled to summary disposition because the limitations period and the wrongful-death saving period expired before they were served with a NOI, noting plaintiff complied with the statute. “[I]t seems reasonable that plaintiff should not be faulted for the [defendants’] own error in reporting their address to the state. [Their] failure to receive the NOI was essentially self-inflicted.” Finally, the court rejected their contention that because the doctor specializes in internal medicine, but plaintiff’s proposed expert (A) specializes in cardiology, plaintiff’s attorney could not have reasonably believed that A was qualified. “Regardless of whether [A’s] statement in the [AOM was] sufficient to definitively establish his qualification to testify under § 2169(b), it support[ed] the reasonableness of plaintiff’s attorney’s belief that” A was qualified. Affirmed in part, vacated in part, and remanded. The court retained jurisdiction.