August 7, 2020

In the case that the State of Michigan Court of Appeals (“Michigan Appellate Court”) decided in an unpublished opinion on June 11, 2020, the Michigan medical malpractice plaintiff served the defendants with a notice of intent (“NOI”) to file a medical malpractice claim pursuant to MCL 00.2912b, on February 12, 2018. On August 13, 2018, 182 days later, plaintiff filed an Indiana medical malpractice complaint alleging that the plaintiff was injured as a result of negligent care provided by the defendants.

On November 5, 2018, the defendants filed a motion for summary disposition in lieu of an answer to the plaintiff’s complaint, claiming that the plaintiff’s medical malpractice claim was barred because he had failed to comply with the notice provisions of MCL 600.2912b. Specifically, the defendants argued that the plaintiff had filed his complaint one day before the expiration of the 182-day waiting period required by the statute.

The trial court granted the defendants’ motion for summary disposition because the plaintiff’s medical malpractice complaint was not timely filed according to recent Michigan Supreme Court caselaw. The plaintiff appealed, arguing that his complaint was timely filed because the exception listed under MCL 600.2912b(9) applied and, even if it was not, the trial court should have applied equitable tolling to save his claim.

MCL 600.2912b(9) provides: “If at any time during the applicable notice period under [MCL 600.2912b] a health professional or health facility receiving notice under this section informs the claimant in writing that the health professional or health facility does not intend to settle the claim within the applicable notice period, the claimant may commence an action alleging medical malpractice against the health professional or health facility, so long as the claim is not barred by the statute of limitations.”

The plaintiff argued that a conditional statement in the defendants’ response amounted to expressing their intention that they did not intend to settle the claim within the 182-day notice period of MCL 600.2912b. Specifically, the plaintiff argued that because the defendants reserved “the right to modify or assert additional defenses after discovery has been initiated and further analysis is conducted by expert witnesses,” the defendants were essentially inviting the plaintiff’s lawsuit before the expiration of the 182-day notice period because of the use of the word “discovery,” and the plaintiff reasonably relied on this reservation as showing the defendants’ intent not to settle the claim during the 182-day notice period.

Michigan Appellate Court Opinion

The Michigan Appellate Court stated that the Michigan Supreme Court has held that “[a] defendant can either advise the plaintiff of the decision to waive or the defendant may do nothing at all, either of which triggers the shortened waiting period” contained in MCL 600.2912b(9) … Unfortunately for plaintiff, neither of these happened here. Defendants never directly—or impliedly—advised plaintiff that they wanted to waive the 182-day notice period. Furthermore, defendants did not “do nothing at all” because they responded to plaintiff’s NOI in compliance with MCL 600.2912b(7). Plaintiff fails to provide any support for his argument that reasonable reliance on his part should accelerate the 182-day notice period absent a writing demonstrating defendants’ intent not to settle.”

The Indiana Appellate Court further stated, “With regard to the 182-day notice period, our Supreme Court interpreted the period to mean that “a plaintiff must wait the entire 182 days before filing a complaint,” and a complaint filed on day 182 is considered untimely … a plaintiff must wait until day 183 to file a complaint … even a plaintiff that sends an NOI on the last day of the statute of limitations period is given that one hundred eighty-third day to file a complaint … In this case, plaintiff filed his cause of action on day 182, which means that his complaint was untimely.”

Source Goodfellow v. Lam, No. 347818.

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