When a medical malpractice plaintiff files a complaint before the expiration of the mandatory notice-waiting period, the filing is ineffective, does not initiate tolling of the statute of limitations, and must be dismissed. That was the unanimous ruling of the Michigan Supreme Court yesterday in the much-anticipated decision of Tyra v Organ Procurement Agency of Michigan and Furr v McLeod.
Although the issue was seemingly resolved by the Court in the 2005 opinion of Burton v Reed City Hosp., the Court of Appeals revisited the issue in Zwiers v Growney. Applying a different analysis than that used in Burton, the Court of Appeals held that an early filing error could be ignored or the filing date amended. The Supreme Court responded by issuing Driver v Naini, which reaffirmed the validity of Burton; but some panels of the Court of Appeals did not see it that way.
Tyra and Furr were making their way through the appellate system at the same time. Tyra was decided shortly before Furr and held that Driver was fact-specific and did not change the import of Zwiers. Since that was a published opinion, it was decisive of Furr – the Court of Appeals had to follow the rule set forth in Tyra – but the Court of Appeals judges remained split on the issue. Therefore, when Furr was decided, Judge Whitbeck indicated that; but for Tyra, he would have followed the rule set forth in Burton. He declared a conflict, which resulted in Furr being re-decided by a panel of seven Court of Appeals judges. In a 4-3 decision, the conflict panel affirmed Tyra.
The Michigan Supreme Court considered both cases. All seven Supreme Court justices agreed that Driver overruled Zwiers, and expressly held that when a medical malpractice complaint was prematurely filed, it does not toll the statute of limitations. Therefore, once the limitations period expired, the complaint must be dismissed with prejudice.
The corollary issue that was raised but not decided by the Court in Tyra was whether a defendant needed to preserve the premature filing argument as an affirmative defense. Although this was the Court’s primary focus at oral argument, a majority of the Court (four justices) ultimately decided that the Court was not equipped to address the issue due to inadequate issue preservation and briefing by the plaintiff. Three justices disagreed, and would have held that a medical malpractice defendant must preserve the defense, using Furr as an example of proper affirmative defense wording. But since that was not a majority ruling, that issue is left for a future decision of the Court.
Smith Haughey Rice & Roegge congratulates attorney Stephanie Hoffer, who served as the appellate counsel for the defense in Furr v McLeod.