A Complaint Filed before the 154- or 182-day NOI Waiting Period cannot be saved with an Amendment and must be dismissed with prejudice! The Michigan Supreme Court reverses the Court of Appeals in both Tyra and Furr

Jul 31, 2015

Saurbier

Previous Court of Appeals rulings allowed that when an NOI is filed within the statute of limitations, a complaint filed before the applicable NOI waiting period (154 or 182 days) elapses but after the statute of limitations would otherwise have expired continues to toll the statute of limitations. Therefore, the defective complaint could be cured with an amended complaint.

On July 22, 2015, the Michigan Supreme Court in Tyra v Organ Procurement Agency of Mich held that filing a complaint prematurely before expiration of the 154- or 182-day NOI waiting period does not toll the statute of limitation, and cannot be corrected by an filing an amended complaint.  If the statute of limitations has expired when the complaint is improperly filed the case must be dismissed with prejudice.

Here is where the law stands as a result of this case:

  1. A complaint filed before the applicable NOI waiting period of 154- or 182-days runs is defective and does not toll the statute of limitations, upholding Burton v Reed City Hosp Corp, 471 Mich 745 (2005), and Boodt v Borgess Med Ctr, 481 Mich 558 (2008) in this regard.
  1. The NOI waiting period is a defendant’s statutory and substantial right. Allowing amendment of a premature complaint would affect that right by eliminating a statute of limitations defense.  A plaintiff must strictly comply with the NOI waiting period.
  1. Driver v Naini, 490 Mich 239 (2011) did overrule Zwiers v Growney, 286 Mich App 38 (2009). Zwiers held that under Bush v Shabahang and MCL 600.2301, a medical malpractice action filed before the NOI period elapsed could be saved because the statute allowing amendment (600.2301) was applicable to the entire NOI process and any compliance failures.  Driver, however, held that Bush “repeatedly recognized that an NOI must be timely filed, and MCL 600.2301 only applies to pending actions or proceedings.”  Filing a complaint prematurely does not commence an action that can be amended. Bush, therefore, applies only to content deficiencies.
  1. Bush v Shabahang, 484 Mich 156 (2009), correctly allowed that the content of a defective NOI can be amended under MCL 600.2301.

Summary:

The Supreme Court reversed the Court of Appeals in both Tyra v. Organ Procurement Agency of Mich, 302 Mich App 208 (2013) and Furr v. McLeod, 304 Mich App 677 (2014).

In Tyra, Defendants sought summary disposition on the basis that the complaint was prematurely filed, 112 days after the NOI was served, and the statute of limitations had expired.

In Furr, as in Tyra, the Defendants sought summary disposition on the basis that the complaint was prematurely filed 179 days after the NOI was filed, and the statute of limitations had expired.  In both cases, the Court of Appeals held that under Zwiers the deficient filing could be corrected by filing an amended complaint.         The Supreme Court reasoned that plaintiffs’ filing of their complaints before the expiration of the NOI waiting period did not commence their actions or toll the running of the limitations.  MCL 600.2301 cannot save plaintiff’s actions because MCL 600.2301 only applies to pending actions or proceedings and there never were pending actions in these cases.  Plaintiffs’ complaints, filed before the NOI waiting period expired, could not commence an action.  Furthermore, even if a NOI constitutes part of a “proceeding,” the proceedings were no longer pending when the trial courts ruled on defendants’ motions for summary disposition because the limitations periods had expired by that time.  The Court further reasoned that ignoring the deficits in these cases would not be “for the furtherance of justice” and would affect defendants’ “substantial rights.”  Ultimately the Court held that because plaintiffs did not wait until the applicable notice period expired before they filed their complaints and affidavits of merit, they did not commence actions against the defendants.  Because the statute of limitations had since expired, plaintiffs’ complaints must be dismissed with prejudice.

Please give us a call if you would like to further explore the issue of plaintiffs’ failure to comply with the applicable notice provisions prior to the filing of the complaint and affidavit of merit.  We would be more than happy to discuss litigation strategies in light of this Opinion, the full text of which can be found at http://www.michbar.org/file/opinions/supreme/2015/072215/60481.pdf.