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A Better Partnership
December 01, 2014

MSC grants mini-oral argument to consider whether prematurely filed medical-malpractice complaints may be amended to render them timely

The Michigan Supreme Court will hear mini-oral argument on whether a plaintiff may amend a medical-malpractice complaint filed before the expiration of the mandatory 182-day notice period in MCL 600.2912b(1) to render it timely. The Michigan Supreme Court is considering the applications for leave to appeal the Court of Appeals’ judgments in Tyra v. Organ Procurement Agency of Michigan, No. 148087, and Furr v. McLeod, No. 149344.  The Court ordered that the mini-oral argument for Tyra and Furr be scheduled for the same session, as the parties to both cases must address whether Driver v. Naini, 490 Mich. 239 (2011), overruled Zwiers v. Growney, 286 Mich. App. 38 (2009).  In Driver, the Michigan Supreme Court held that a plaintiff may not amend a notice of intent to add nonparty defendants so that the amended notice relates back to the original filing for purposes of tolling the statute of limitations.  In Zwiers, the Court of Appeals allowed a trial court to apply MCL 600.2301, the statute allowing amendment, to prevent dismissal for failing to comply with the mandatory notice period in medical-malpractice cases.  As discussed here, the Court of Appeals previously convened a conflict panel in Furr and concluded that Driver did not overrule Zwiers.  In Tyra, the parties must also address whether the defendant’s affirmative defenses were defective because they did not specifically state the grounds for the defense.

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