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A Better Partnership
August 16, 2013

COA holds medical malpractice defendants must clearly state factual basis of affirmative defenses or waive them

In Tyra v. Organ Procurement Agency of Michigan, the Michigan Court of Appeals held that medical malpractice defendants must raise notice defenses by fully setting forth their factual basis.  Because the defendants had not done so, the plaintiff won an opportunity to argue in support of amending the filing date of her complaint.

The plaintiff received a kidney transplant that was not a proper match.  She sent notices of intent to defendants pursuant to MCL 600.2912b, but then proceeded to file her complaint 112 days later instead of the 182 days required by statute.  But the appellate court found that defendants' assertion of inadequate notice was not properly made.  This is because MCR  2.111(F) requires parties to set forth the factual basis of affirmative defenses.  In turn, the court of appeals relied on another appellate court opinion, Zwiers v. Growney, which allowed a plaintiff, who filed one day before the 182-day notice period had ended, to proceed because the defendant was not prejudiced.  The court of appeals also based its decision on MCL 600.2301, which urges courts in all proceedings to "disregard any error or defect" that does not affect substantial rights.

Judge Wilder dissented.  He contended that defendants could not waive their notice defense because in Auslander v. Chernick, the Michigan Supreme Court issued an order upholding a court of appeals dissent stating that the notice requirement applies "irrespective of whether the defendant properly asserts it."  He also rejected the majority's reliance on MCL 600.2301 because without a proper complaint, no action was pending in the first place.  Finally, he rejected the majority's reliance on Zwiers because he believed it was undermined by subsequent Supreme Court precedent.    

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