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A Better Partnership
March 03, 2010

COA Opinion: Notice of intent statute controls in determining whether a medical malpractice action is time-barred

On March 2, 2010, the Court of Appeals issued a per curiam opinion in Driver v. Cardiovascular Clinical Associates, P.C., No. 280844, reversing the lower court's denial of summary disposition, and remanded for entry of summary' disposition' in favor of Defendant Cardiovascular Clinical Associates, P.C. (CCA).' The patient was diagnosed with colon cancer in November 2005, and brought this medical malpractice action claiming that his doctor failed to refer him for a colonoscopic examination.'

Medical malpractice claimants must give proposed defendants notice of intent to sue, and the notice must be given at least 182 days prior to commencing an action.' MCL '' 600.2912b(1).' If a plaintiff files a complaint before the expiration of the' notice period, the medical malpractice action is not commenced.'

In this case, the plaintiffs filed a complaint against the doctor and Defendant Michigan Cardiology Associates, P.C. (MCA).' The doctor and MCA filed a notice of nonparty fault naming CCA.' Afterwards, the plaintiffs sent an amended notice of intent to CCA.' Approximately 49 days later, the plaintiffs filed a first amended complaint, naming CCA as a defendant.' CCA moved for summary disposition on the basis that the plaintiffs' suit was time-barred because they failed to comply with the medical malpractice procedural statutes.' The plaintiffs argued that the 2-year statute of limitations would have expired if they had waited the requisite 182 days.' MCL '' 600.5805.' The plaintiffs also argued that the nonparty fault statute allows 91 days to add a potential defendant that is included in a notice of nonparty fault.

The Court of Appeals concluded that the notice of intent statute and the nonparty fault statute conflict, and could not be construed harmoniously.' As the more specific statute applying only to medical malpractice actions, the Court of Appeals determined that' the notice of intent statute controls.' The Court of Appeals held that because the plaintiffs failed to comply with the notice of intent statute, and therefore did not commence an action, their claim against CCA is now barred by the two-year statute of limitations (which is' tolled for' up to 182 days if' a plaintiff provides a valid notice of intent before the statute of limitations expires).

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