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A Better Partnership
March 17, 2009

MSC Oral Argument: Bush v. Shabahang

At a session on April 7 or 8, 2009, the Michigan Supreme Court will hear oral argument on the merits in a medical malpractice case, Bush v. Shabahang, Nos. 136617, 136653, and136983 to address two issues of jurisprudential significance: (1) whether plaintiff's allegedly defective notice of intent (“NOI”) tolled the relevant limitations period; and (2) whether a plaintiff could file a medical malpractice action just 154 days after a NOI based on a defective response to that notice. The order granting leave to appeal can be found here. The parties' briefs can be found here.

As to the tolling of the limitations period, the Court of Appeals held that, as to the relevant defendants, plaintiff's NOI was sufficient, and that even if the NOI was deficient, it would still toll the statute of limitations. The Court of Appeals' opinion can be found here. Since the Court of Appeals issued its opinion, however, the Michigan Supreme Court decided Boodt v. Borgess Medical Center, 481 Mich. 558; 751 N.W. 2d 44 (2008), which held that a deficient NOI does not toll the statute of limitations. The Court originally requested a mini-oral argument (a “MOA”) on the application, asking the parties to address the implications of Boodt. (That order can be found here.) Now, the defendants argue that plaintiff's NOI was defective, and the relevant statutory language (MCL ' 600.5856) is clear that a defective NOI does not toll the statute of limitations. Plaintiff contends that the NOI was sufficient and that even if it was not, Boodt was wrongly decided. Therefore, the statute allows dismissal without prejudice and a re-filing of the action, based on a tolling of the limitations period during the litigation.

As to the second issue, the relevant statue (MCL ' 600.2912b) provides that a plaintiff can file a medical malpractice action just 154 days after an NOI if the defendant does not provide the statutorily required response to the NOI within 154 days. The statute requires a plaintiff to wait 182 days if the defendant provides the required response. In this case, the Court of Appeals held that a complaint filed after just 154 days where the defendant's response to the NOI was defective. The defendant argues that if any written response to the NOI is provided to the plaintiff, then the plaintiff must wait the full 182 days before filing a civil action. Plaintiff argues that if a defendant's response to a NOI does not comply with the relevant statutory requirements, then the defendant has not submitted a proper response, and a medical malpractice action can be filed after just 154 days.

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