Court of Appeals Requests Conflict Panel to Resolve Issue of Whether Plaintiff’s Prematurely Filed Complaint Can Be Equitably Amended to Allow Notice Period to Toll Statute of Limitations in Medical Malpractice Action

Yesterday, the Michigan Court of Appeals issued an adversarial published opinion in the case of Furr v. McLeod, MD, et al, Court of Appeals Docket No. 310652.  The panel ruled as it did only because prior Court of Appeals precedent  required it to do so under Michigan Court Rule (MCR) 7.215(J).  However, the panel requested impaneling a conflict resolution panel by the Court of Appeals to address whether its own holding remains good law in light of Michigan Supreme Court precedent suggesting that a contrary result should now issue. MCR 7.215(J) obligates a Court of Appeals panel to follow precedent in opinions issued by it after November 1, 1990.  MCR 7.205(J)(3) allows the Chief Judge to poll the judges of the Court of Appeals to determine whether the particular question at issue is outcome determinative and warrants convening a special panel to rehear the case for the purposes of resolving the conflict that would have been created but for the provision of subrule (1) (the provision requiring the Court in the issuing opinion to follow prior decisional case law).

The case is a medical malpractice action filed against the various defendants arising out of an alleged act of malpractice in which the plaintiff alleged her “left recurrent laryngeal nerve” was errantly transected during a thyroidectomy procedure.  This required additional surgical intervention to repair the nerve and ultimately left the plaintiff with alleged upper respiratory problems and “bilateral true vocal cord paralysis”.  Michigan Compiled Laws (MCL) 600.2912(b)(1) requires for a plaintiff to pursue a medical malpractice action, he or she must provide a written “notice of intent” to file such an action against the defendants and then wait 154 days (if the defendants do not respond or specifically indicate they do not intend to settle (more about this in a moment), or, alternatively, 182 days.  Under MCL 600.5838(a)(1) (subject to a discovery exception not applicable in this case), a plaintiff’s medical malpractice claim “accrues” when the act of malpractice occurs.  After that date of accrual, the cause of action is then subjected to a two-year statute of limitations (suit must be filed within two years of the date of accrual or it will be time barred). MCL 600.5805(6).

Various courts have addressed the issue of whether the premature filing of a complaint after the notice of intent is served (either before either 154 days (if defendant did not respond or specifically indicates no intent to settle or engage in good-faith settlement negotiations) or 182 days) implicates the two-year limitations period.  Thus, if the complaint is filed within the notice period, but prematurely, then the 154- or 182-day “notice period” does not act to “toll” that limitations period. MCL 600.5856(d); MCL 600.2912b.  Therefore, the filing of a complaint within this window that is upon a date beyond the two-years from the date of accrual will be time barred.

Two Court of Appeals decision seem to indicate that MCL 600.2301 allows a trial court to amend the complaint to reflect the date postnotice period so that it does not act to time-bar the action.  That is essentially what the trial court did in this case.

In Burton v. Reed City Hospital Corp., 471 Mich. 745 (2005), the Michigan Supreme Court held if a plaintiff files his or her complaint before the notice period expires, MCL 600.2912b does not “toll” the limitations period.  The Court reasoned the language of that provision is mandatory and MCL 600.5856(d) only tolls the limitations period if the plaintiff’s notice complies with MCL 600.2912b.

In Zwiers v. Growney, 286 Mich. App. 38 (2009), the Court of Appeals held that MCL 600.2301 allowed a trial court to equitably amend the complaint to reflect a post-date of the waiting period so that the premature filing did not erase the tolling of the statute of limitations.

In a subsequent case, Driver v. Naini, 490 Mich. 239 (2011), the Supreme Court held a plaintiff could not amend an original notice of intent to add a nonparty defendant and have that amendment “relate back” to the original notice for purposes of the statute of limitations.  The Court disavowed that MCL 600.2301 would apply in a situation in which there was no technical viability to the claim – because if a complaint is filed prematurely within the notice period, but after the statute of limitations has expired, there is no “pending” action for MCL 600.2301 to remedy.

Subsequent to that case, in Tyra v. Organ Procurement Agency of Michigan, ___ Mich. App. ___ (2013) (COA Docket No. 298444), the Court of Appeals ignored this nuanced reading of MCL 600.2301 and held a trial court could use this provision to permit plaintiff to amend her complaint on the basis of Zwiers and MCL 600.2301.  So, the Court of Appeals ruled in Tyrasupra, that a trial court could exercise its discretion to allow amendment of a premature complaint to escape the failure of tolling where it was filed prematurely.

The defendants appealed, arguing that Supreme Court precedent has since refuted the theory that MCL 600.2301 allows a trial court to equitably “fix” the fatal filing defect by allowing amendment of the complaint so it is filed on the proper day.  This is what the trial court did in the instant case and defendants appealed.  While noting Tyra precedentially controlled its holding, the Court of Appeals panel in this case goes on to criticize that decision and provides reasoning why it should be overruled.  The Court states:

“Subsequently, and to the contrary, the Michigan Supreme Court in Driver held that a plaintiff cannot commence an action that tolls the statute of limitations against a particular defendant until the plaintiff complies with the notice-waiting-period requirements of MCL 600.2912b.  Nothing [in subsequent Supreme Court precedent] altered [the] holding. . . .  [T]he focus of MCL 600.5856(c) is compliance with the notice waiting period set forth in MCL 600.2912b.  Therefore, but for Tyra, we would conclude that the trial court erred when it relied on Zwiers to determine that it could amend the plaintiff’s complaint under MCL 600.2301.  After the Michigan Supreme Court’s decision in Driver reached the opposite result on this point of law, this Court’s holding in Zwiers is no longer controlling law.”

The Court also notes that the shorter 154-day notice period is implicated only if the healthcare provider specifically indicates its intent not to settle; it does not apply if the healthcare provider defendant merely indicates or acknowledges the notice.

The takeaway from this is significant.  The opinion is published.  The convening of a conflict panel is not unanimously agreed with (Owens concurs in the result (because it followed precedent), but does not believe a conflict panel is necessary.  Judge Kelly concurs in the result only, and then also in the necessity of a conflict panel.  Thus, the case is likely to get additional treatment.  If a conflict panel is not convened, there will likely be an application filed in the Supreme Court by the defendants.

The issue affects the timeliness of medical malpractice claims and the necessity of plaintiffs to strictly comply with the notice periods and filing deadlines of complaints.

Throughout its storied history, Lacey & Jones has distinguished itself from other law firms by maintaining a robust Appeals and Legal Research Group.  Effective appellate representation demands different skills than those required by litigation attorneys.  Our appellate attorneys are adept at analyzing the intricacies of each case from an objective and critical perspective.  From reviewing and preparing the lower court record, identifying appealable errors, and developing a strategy to raise issues that will be addressed by appellate courts, our seasoned appellate team is capable of handling the most complex appeals from the application stage to oral advocacy before the highest courts.  Our research abilities and knowledge of current issues in nearly all major subject-matter areas of the law provide our clients with efficient and immediate assistance with complex and high-exposure cases.   We are experienced at navigating through the Michigan Court of Appeals and Supreme Court to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.  During the last three decades alone, the Appeals and Legal Research Group at Lacey & Jones has been responsible for over 150 published decisions in the Michigan Court of Appeals and Supreme Court, including seminal decisions in workers’ compensation, governmental immunity, employment and labor law, civil rights law and insurance coverage.  Because of its specialized knowledge and focus on appellate law and its recognized expertise, the Appeals and Legal Research Group at Lacey & Jones has been asked to participate as amicus curiae writing briefs for the Supreme Court or as special counsel to the Michigan Attorney General and other governmental entities in some of the most significant cases in the Court of Appeals and Supreme Court.   Below are some of the recent significant cases in which Lacey & Jones, LLP’s Appeals and Legal Research Group has participated.

  • State Farm v. MMRMA, ___ Mich App ___ (2013), amicus curiae for Oakland County in support of MMRMA application, by Carson J. Tucker
  • Hannay v MDOT, ___ Mich ___ 201_), application granted, amicus curiae to be filed for MTA, et al., by Carson J. Tucker
  • Yono v. MDOT, ___ Mich ___ (201_), oral argument on application granted, amicus curiae for Oakland, Macomb and Wayne County filed by Carson J. Tucker in support of the state’s application
  • Huddleston v. Trinity Health, et al., ___ Mich ___ (201_), oral argument on application granted, amicus curiae with Lawrence Garcia, Esq., for MDTC
  • Ashley, LLC v Pittsfield Twp., 494 Mich 875 (2013), application granted, for Pittsfield Township by Carson J. Tucker (resolved by settlement)
  • Bailey v. Schaaf, ___ Mich ___ (2013), amicus curiae for MDTC by Carson J. Tucker
  • Atkins v. SMART, 492 Mich 707 (2012), oral argument on application, Court of Appeals case reversed by opinion, Carson J. Tucker
  • Hagerty v Manistee, 493 Mich 933 (2013), amicus curiae for Michigan Municipal League, et al., by Carson J. Tucker
  • McMurtrie v Eaton Corp, 490 Mich 976 (2011)
  • Findley v DaimlerChrysler Corp., 490 Mich 928 (2011)
  • Brewer v. AD.Transport Express, Inc, 486 Mich 50 (2010)
  • Stokes v Chrysler, 481 Mich 266 (2008)
  • Brackett v Focus Hope, Inc, 482 Mich 269 (2008)
  • Rakestraw v Gen Dynamics, 469 Mich 220 (2003)

About cjtucker06

Owner of law firm since July 2014; Handles all types of appellate matters and assists other lawyers with complex litigation and insurance coverage issues; Admitted to the Supreme Court of the United States, the Sixth Circuit Court of Appeals and the State Bar of Michigan; Expertise in prosecuting and defending appeals with several significant successes in the Sixth Circuit Court of Appeals, the Michigan Supreme Court and the Michigan Court of Appeals; Author of briefs amicus curiae in the Michigan Supreme Court for the Michigan Defense Trial Counsel and the Insurance Institute of Michigan; Represents Insurance Companies, Major International Business, Governmental Entities, Law Enforcement Officers and County Sheriffs. Board of Directors, Michigan Defense Trial Counsel Amicus Committee Co-Chair, Michigan Defense Trial Counsel Military - Retired Major in the Judge Advocate General (JAG) Corps of the United States Army, Brigade Judge Advocate and Staff JAG officer for the Maneuver Training Center, Camp Grayling, Michigan; Recipient of the Army's Meritorious Service Medal (the highest medal of honor available to Soldiers serving in non-combat roles); 2012 Graduate of the Judge Advocate Officer Advanced Course, at The Judge Advocate Legal Center and School, Charlottesville, Virginia. United States Navy Reserves, Combat Warfare Qualification, January 1989 to July 2003 Former law clerk to Justice Stephen J. Markman, Michigan Supreme Court, Research Attorney, Michigan Court of Appeals. Insurance Coverage Associate Plunkett Cooney; Environmental Law Attorney at Squire Sanders, now Squire Patton Boggs; Master's Degree in Environmental Law; Environmental Law Scholar, ALI/ABA Washington, D.C., Juris Doctorate, Vermont Law School, Environmental Editor, Vermont Law Review; Treasurer and Finalist, Moot Court Advisory Board.
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