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October 25, 2013

Medical-malpractice complaints may be amended to render them timely

A plaintiff may amend a prematurely filed medical-malpractice complaint to render it timely.  In Furr v. McLeod, the plaintiffs filed their lawsuit one day before the expiration of the 182-day notice period in MCL 600.2912b(1).  The Court of Appeals affirmed the trial court’s decision that the plaintiffs could amend their complaint to render it compliant.  In so holding, the Court stated that it was bound by its prior decision in Tyra v. Organ Procurement Agency, which had reached the same result in the wake of several Michigan Supreme Court cases.

However, two panel members called for a conflict resolution panel under MCR 7.215(3).  Judge Whitbeck and Judge Kelly explained that they believe Tyra was wrongly decided and in conflict with the Michigan Supreme Court’s decision in Driver v. Naini, which had held that a plaintiff’s malpractice claim was barred because he did not comply with the waiting period to add a new defendant to his existing action.  Judge Owens concurred in the result, but he did not agree that a conflict panel was needed.

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