In its decision filed on July 22, 2015, the Michigan Supreme Court held that the plaintiffs filed their medical malpractice lawsuit before the expiration of the statutory 182-day waiting period between the time that the plaintiffs gave notice of their intent to sue (“NOI”) and the earliest date on which their Michigan medical malpractice lawsuit could be filed.
MCL 600.2912b(1) requires that the plaintiff in a medical malpractice action give the defendant written notice of the plaintiff’s intent to sue before commencing the action. After providing this NOI, the plaintiff must wait for the applicable notice period, usually 182 days, to pass before filing the action. A claimant normally has two years from the time his or her claim accrues to file suit, but, under MCL 600.5856(c), the running of the limitations period is tolled during the notice period. Under MCL 600.5856(a), the filing of a medical malpractice complaint with the required affidavit of merit after the notice period has elapsed also tolls the running of the limitations period.
In the case the Michigan Supreme Court was deciding, the plaintiff sent her NOI to defendants under MCL 600.2912b, and filed her complaint 112 days later. Two of the medical malpractice defendants moved for summary disposition, arguing that the action should be dismissed with prejudice because the plaintiff had prematurely filed her complaint and the limitations period had expired so it could not be re-filed. The plaintiff argued that defendants had waived the notice-period affirmative defense because their responsive pleadings had failed to put her on notice that she had not complied with the requirement. The court granted summary disposition in favor of the two defendants, determining that their failure to provide detailed facts concerning the affirmative defense did not waive the notice-period defense and the prematurely filed complaint failed to toll the running of the limitations period, which had since expired so that the plaintiff could not cure the notice-period error by re-filing the complaint.
The plaintiff filed an appeal to the Michigan Court of Appeals, which ruled that the trial court had discretion under MCL 600.2301 to allow the plaintiff to amend the filing date of her complaint. The defendants sought leave to appeal to the Michigan Supreme Court, which accepted the appeal and decided this case along with another case pending before the Michigan Supreme Court.
The Michigan Supreme Court held that the plaintiffs’ filing of their complaints before the expiration of the notice period did not commence their actions or toll the running of the limitations period, and that MCL 600.2301 cannot save plaintiffs’ actions because MCL 600.2301 only applies to pending actions or proceedings and there never were pending actions in these cases because plaintiffs’ complaints, filed before the notice period expired, could not commence an action. The Michigan Supreme Court further held that even assuming that there were pending proceedings at the time plaintiffs filed their NOIs, the proceedings were no longer pending when the trial courts ruled on defendants’ motions for summary disposition because the limitations periods had expired by that time and a proceeding cannot be pending if it is time-barred.
The Michigan Supreme Court further held that the plaintiffs had abandoned their argument that the defendants’ affirmative defenses were defective because they did not specifically state the grounds for the defense because the plaintiffs did not appeal or brief the portion of the Michigan Court of Appeals’ opinion that stated that a plaintiff’s failure to comply with the notice period remains available as a defense irrespective of whether the defendant adequately stated the grounds for the defense.
Source Tyra v. Organ Procurement; Furr v McLeod, Case Nos. 148079, 148087, 149344.
If you were harmed as a result of medical malpractice in Michigan or in another U.S. state, you should promptly find a Michigan medical malpractice lawyer (or a medical malpractice lawyer in your state) who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.
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