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July 27, 2015

MSC: Filing of a medical malpractice complaint before the notice period ends does not commence the action or toll the running of the limitations period

In Tyra v. Organ Procurement Agency of Michigan, No. 148079, the Michigan Supreme Court heard oral arguments on the applications in Tyra v Organ Procurement Agency of Mich, 302 Mich App 208; 850 NW2d 667 (2013), and Furr v McLeod, 304 Mich App 677; 848 NW2d 465 (2014).  The main issue on appeal was whether the premature filing of a medical malpractice complaint before the passage of the applicable notice period commenced the action or tolled the running of the limitations period.  The Court concluded that a medical malpractice complaint filed before the notice period ends does not commence the action or toll the statute of limitations.
 
Michigan law 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.  MCL 600.2912b(1).  After providing this notice of intent, the plaintiff must wait for the applicable notice period, usually 182 days, to pass before filing the action.  In Tyra, the plaintiff prematurely filed her medical malpractice complaint before the notice period expired.  However, by the time the trial court dismissed the case because the complaint had been filed before the notice period expired, the limitations period had expired and the complaint could not be refiled. The trial court granted summary disposition in favor of the defendant. The Court of Appeals reversed, relying on its decision in Zwiers v Growney, 286 Mich App 38; 778 NW2d 81 (2009) to find 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, arguing that the Court of Appeals erred by relying on Zwiers after it was overruled by the Michigan Supreme Court in its decision in Driver v Naini, 490 Mich 239; 802 NW2d 311 (2011).
 
In Furr, the plaintiffs also prematurely filed their complaint before the end of the applicable notice period.  However, in this case, the trial court denied the defendants’ motion for summary disposition.  The Court of Appeals remanded the case to the trial court for reconsideration in light of the Michigan Supreme Court’s opinion in Driver, which had been decided during the pendency of defendants’ application for leave to appeal to the Court of Appeals.  On remand, the trial court again denied the defendant’s motion.  The Court of Appeals ordered a conflict panel to resolve the conflicting decisions in Tyra and Furr.  The panel affirmed the decision of the trial court, concluding that there was no clear language in Driver overruling Zwiers, and the defendants again sought leave to appeal.
 
The Michigan Supreme Court reversed the judgment of the Court of Appeals in part in both cases, reasoning that this Court’s controlling case precedent, Driver, held that the plaintiffs’ filing of their complaint before the expiration of the notice period did not commence their actions or toll the running of the limitation period.  The Michigan Supreme Court reinstated the trial court’s order granting defendants’ motion for summary disposition in Tyra; and remanded to the trial court for entry of an order granting defendants’ motion for summary disposition in Furr.
 
Justices Viviano, McCormack, and Bernstein dissented from the majority’s conclusion that the Tyra defendants’ failure to adequately plead failure to comply with the notice period as an affirmative defense did not waive that argument.

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