Supreme Court Hears Appeal on Reduction of the Enforceability of the 182-day Notice of Intent Waiting Period Requirement

May 12, 2015

Saurbier

In 2013 and 2014, the Court of Appeals took the rigidity out of the requirement for Plaintiffs to strictly comply with the Notice of Intent period before filing medical malpractice claims, and allowed that they could file the Complaint early without significant consequences, i.e., dismissal with prejudice.  Arguments to revert to the statutory requirements were recently heard by the Supreme Court of Michigan.

There are two Court of Appeals decisions at the heart of this matter. Tyra v Organ Procurement Agency of Michigan, (Judge Grant, Oakland County), and Furr v McLeod (Judge Lipsey, Kalamazoo County).  In Tyra the Plaintiff filed her Complaint only 112 days after serving the Notice of Intent.  Furr’s facts were similar. Judge Grant ordered dismissal with prejudice, and Judge Lipsey denied the motion.

The Court of Appeals in Tyra held, that MCL 600.2301 grants a court power to “amend any process, pleading or proceeding in such action or procedure in form or substance, for the furtherance of justice . . . ,” and this statute trumped the strict compliance language of the medical malpractice statute, MCL 600.2912b.  The Court also ruled that a case called Zwiers v Growney, overruled certain other cases that disallowed such leniency, plus it said that Affirmative Defenses need to be specific to the statute to give the Plaintiff better notice of the defect.  Furr initially overruled the Kalamazoo Court, but then reversed itself because it was bound to follow Tyra.  A conflict resolution panel then punted, upholding the trial court and leaving the matter to the Supreme Court to rule in the future.

Where is this going? The current appeal is based on Judge Wilder’s dissenting opinion in Tyre.  His dissent was:  (1) “MCL 600.2912b(1) ‘unequivocally provides’ that a plaintiff  ‘shall not’ commence an action alleging medical malpractice … until the expiration of the statutory notice period; (2) Defective content in an NOI can be corrected, but failure to follow the notice requirements cannot; (3) the Supreme Court in Auslaner held that “a defendant can still raise the issue of a plaintiff failing to comply with MCL 600.2912b irrespective of whether the defendant properly asserts it.”

The Supreme Court in its current make-up follows the Legislative intent.  It also believes that its prior opinions were clearly written. One question asked by Justice Young was whether the Plaintiff was asking for the Supreme Court to reverse an entire line of cases. Another was whether the Plaintiff was arguing that MCL 600.2912b was not written in its strict fashion as an exception to MCL 600.2301.  On the basis of the Court’s fundamental practices, and the questions asked, it appears that there is a good chance the Court will reverse and require strict compliance with the MCL 600.2912b waiting period.  If it does not, there will essentially be no enforceable NOI period.