Mention of a Non-Party in Affirmative Defense Insufficient to Toll Statute of Limitations as to that Non-Party

In a published decision, the Michigan Court of Appeals has held that mention of a potentially responsible non-party at fault in a class action suit was insufficient as a notice of non-party at fault within the meaning of Michigan Court Rule (MCR) 2.112(K), and therefore insufficient to “toll” the statute of limitations to allow amendment of the plaintiffs’ complaint to add that party to the lawsuit.

The issue in this case arose when the trial court judge allowed amendment of the complaint in the underlying class action to occur to add a defendant, Consumers Energy (Consumers), even after the statute of limitations as to Consumers had run.

The Court allowed the amendment on the basis that the statute of limitations could be extended because the original defendant named Consumers as a potentially responsible nonparty in an affirmative defense in its answer (which was filed 2 (technically 3) days before the statute of limitations would have expired as to Consumers).  However, the original Defendant never filed a notice of fault of nonparties as required by MCR 2.112(K).

Consumers was added to the lawsuit via an amended complaint, with the trial court ruling that despite the failure to comply with MCR 2.112(K), the affirmative defense was sufficient to allow the filing of the amended complaint and toll the statute of limitations. The original Defendant Michigan Petroleum clearly had notice and knew or should have known that Consumers was likely to be a potential defendant and could have filed a proper “notice of nonparty at fault”.

On August 4, 2009 a fire occurred at a building owned by the defendant Michigan Petroleum Technologies (Michigan Petroleum) and destroyed the building.  The fire was very large and involved noxious fumes and smoke.  An investigator from Consumers performed a site investigation at the location of the fire on August 5, 2009.  A subsequent investigation performed by Consumers and an independent engineer hired by them concluded that Consumers was not to blame for the fire.

Within a few weeks of the fire, Consumers received letters from two separate law firms, implying that Consumers was responsible and would be named as a defendant in a lawsuit by either Michigan Petroleum or the insurance company that insured the building.  Neither the building owner (Michigan Petroleum), nor the insurance company that insured the building filed any claim or lawsuit against Consumers.

On June 20, 2012, a personal injury class action lawsuit was filed in Genessee County Circuit Court naming only Michigan Petroleum as a defendant and seeking damages in tort, among other claims including nuisance (all of the claims in the underlying lawsuit are subject to the three-year statute of limitations in the revised judicature act (RJA), MCL 500.5805(10)).

Michigan Petroleum did not file a notice of non-party at fault within the 30 days provided by MCL 600.2957(2).

On August 2, 2012 (two days before the expiration of the statute of limitations as against Consumers), Michigan Petroleum filed an answer.

On October 8, 2012, after the three-year statute of limitations had run as to Consumers, the circuit court entered a “stipulated order” allowing, inter alia, the plaintiffs to “add” Consumers as a defendant in the lawsuit.

An “amended” complaint was served on Consumers on October 19, 2012, alleging causes of action in nuisance and negligence, all governed by the three-year statute of limitations as pronounced in the RJA.

The legal issue then briefed and argued in early 2013 was whether the naming of a party by a defendant in an affirmative defense under MCR 2.111(F) has the same legal effect as the filing of a “notice of nonparty fault” under MCR 2.112(K).  The significance is that MCR 2.112(K) then allows for “tolling” of the statute of limitations pursuant to MCL 600.2957(2).

The trial court did not squarely address that issue.  Rather, the trial court found since there were no cases stating that an affirmative defense is insufficient, the naming of the potential nonparty at fault (Consumers) in the affirmative defense was “sufficient” to activate the “tolling” provision of MCL 600.2957(2) and therefore the trial court denied Consumers’ motion to dismiss.

The COA had originally denied leave to appeal.  The Supreme Court remanded as on leave granted.

This is a published opinion which (1) clarifies the specificity with which one must name a “non-party at fault” for purposes of comparative fault allocation as against that party; and, more importantly, (2) rejects the trial court’s reasoning that mere mentioning of a potentially responsible party in the defendant’s affirmative defense is sufficient to put that party on notice and subject it to a lawsuit even after the statute of limitations has expired as to that party.

Read the opinion here:  Taylor.et.al.v.MPT.et.al.OPN

Effective appellate representation demands different skills than those required by litigation attorneys.  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 errors for appeal, and developing a strategy to raise those issues that will be addressed by appellate courts, appellate attorneys are 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 also experienced at navigating through all appellate courts to shepherd the appeal in the most expeditious fashion possible so that it can be reviewed and quickly ruled upon.

Below are some of the recent significant cases prosecuted by the Appeals and Legal Research Group.

  • Omian v. Chrysler, LLC, Michigan Court of Appeals Docket No. 310743, remanded by Supreme Court as on leave granted, Supreme Court No. 146908, oral argument presented July 16, 2014 by Carson J. Tucker for Chrsyler, LLC
  • Moore v. Nolff’s Construction and Travelers Ins., Michigan Court of Appeals Docket No. 313478 and 313440 (consolidated), application and cross-application granted and oral argument in Court of Appeals presented July 2014 by Carson J. Tucker for Nolff’s Construction and Travelers Insurance
  • Arbuckle v. GM, Michigan Court of Appeals Docket No. 310611, oral argument in Court of Appeals presented May 2014 by Carson J. Tucker for GM
  • Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief filed for Michigan Municipal League and Michigan Townships Association on June 16, 2014, after remand by Carson J. Tucker
  • Estate of Truett v. Wayne County, Unpublished Opinion of the Michigan Court of Appeals, dated May 6, 2014 (Docket No. 313638), briefed and argued by Carson J. Tucker for Wayne County
  • Omian v. Chrysler Group, LLC, 495 Mich. 859 (2013), application filed by Carson J. Tucker, Supreme Court remand to Court of Appeals on leave granted, oral argument to be held in July 2014
  • Ghanam v. John Does, 303 Mich. App. 522 (2013), application to appeal filed in Supreme Court by Carson J. Tucker
  • 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 filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, 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., 495 Mich. 976 (2014), 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)

Equitable Amendment of Complaint Allowed to Toll Statute of Limitations in Medical Malpractice Action Even Where Original Complaint Filed Prematurely Before Expiration of Mandatory Notice Period

The Court of Appeals has issued its conflict panel opinion in the case of Furr v. McLeod, M.D., et al.  

This is a case I previously wrote about in which the Court of Appeals convened a special conflict panel to determine whether the filing of an original complaint before the expiration of the mandatory notice period for medical malpractice actions can serve to toll the statute of limitations if the trial court allows a subsequent, untimely complaint to be filed adding parties.  In this case, the trial court allowed equitable amendment of the complaint despite the defect and thus allowed the action against the defendants to proceed despite the expiration of the two-year statute of limitations as against them.

The opinion is here:

Furr.v.McLeod.et.al.conflict.panel.coa.opinion

I previously wrote about the intricacies of this issue when discussing the original opinion.  That blog post is here:

Furr v. McLeod – Court of Appeals Requests Conflict Panel to Resolve Conflict Over Tolling of Statute of Limitations in Medical Malpractice Action

Given that the panel here is still split over the resolution of this issue, and actually acknowledges the Supreme Court is going to have to address it, I suspect there will be more to say on this case in the near future.

The underlying 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.

  • Yono v. MDOT, ___ Mich. App. ___ (201_), amicus curiae brief to be filed after remand for Michigan Municipal League, et al., by Carson J. Tucker
  • 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 filed for Michigan Townships Association, Macomb County, Oakland County and Wayne County, 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)

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)

Court of Appeals Rules Medical Malpractice Suit Required to Allege Cause of Action for Improper Ambulation of Diabetic Patient Recovering from Knee Surgery As Within Realm of Professionalized Knowledge and Training

The Michigan Court of Appeals has ruled a plaintiff must pursue a cause of action sounding in medical malpractice against a hospital where plaintiff broke her leg when hospital staff were removing her to ambulate as part of her recovery from knee surgery.

In Lukas v. William Beaumont Hospital (1), Plaintiff filed a lawsuit against the hospital for damages alleging ordinary negligence against the hospital staff.  The hospital moved for summary disposition arguing plaintiff was instead to go through the notice and pre-suit procedures required to bring a claim sounding in medical malpractice because ambulation of a post-operative diabetic patient for rehabilitation from knee surgery requires specialized training and knowledge.  The trial court disagreed and allowed plaintiff’s suit to continue.

In this three-page, unpublished opinion, the Court of Appeals reversed.  The Court noted a claim sounds in medical malpractice if an alleged breach occurred within a “professional relationship” and if “the claim raises questions of judgment beyond the realm of common knowledge and experience.”  Slip Op. at 1, citing Bryant v. Oakpointe Villa Nursing Ctr., Inc., 471 Mich. 411, 422 (2004).  The Court stated the only question present in the case was whether the alleged conduct on the part of the hospital staff called for “expert medical judgment” which was “beyond the realm of common knowledge and experience.”

The Court reasoned that while at first glance it may appear to the lay person that it takes no special skill or knowledge to assist a person out of bed, it does take special expertise to appreciate that a diabetic, immediately post-operative patient of plaintiff’s age and weight could be injured if not properly supported while being assisted to her feet.

As the Court puts it:  “We very much doubt that it is within the realm of common knowledge and experience how to assist the ambulation of someone whose entire knee has just been surgically replaced.  The evidence was that plaintiff had a pain pump and immobilizer, and professional knowledge was required to assist the ambulation of a patient, such as plaintiff, in a way that would avoid aggravating her injury. The evidence further indicated that prior to ambulating or transferring a patient such as plaintiff, the patient must undergo a neurovascular assessment, and her pain, heart rate, and mobility must be checked. A registered nurse and a physical therapist both explained that ambulating a patient such as plaintiff required specialized medical knowledge, training, and judgment, including being able to recognize cues and utilize proper techniques that nurses are
expected to possess. Ordinary laypersons, however, would not be expected to possess such expertise.”  Slip Op. at 2.

Essentially, the Court reasoned that because the way in which one should assist a patient such as plaintiff is not within common knowledge or experience, it was not possible for a jury, unassisted my medical expertise, to truly evaluate whether defendant’s employees should have acted differently, let alone what it is they should have done. Consequently, “the reasonableness of the action can be evaluated by a jury only after having been presented the standards of care pertaining to the medical issue before the jury explained by experts.”  Thus, the case presented fundamentally as a claim involving a medical misjudgment. This was therefore a medical malpractice action.

As such, the Court concluded, plaintiff’s claim was one sounding in medical malpractice.  She was required, therefore, to provide a notice of an intent to sue before filing her complaint, and she was required to file an affidavit of merit with her complaint.  Id., citing Lockwood v. Mobile Med. Response Inc., 293 Mich. App. 17, 27-28 (2011).  The plaintiff’s lawsuit was dismissed because the filing of a complaint without the procedural prerequisites does not toll the statute of limitations.  Liggons v. Crittenton Hosp., 490 Mich. 61, 73 (2011).  The untolled two-year statute of limitations period for a medical malpractice action expired before defendant had filed its second motion for summary disposition.

Therefore, plaintiff’s lawsuit was no longer viable.

This case provides helpful guidance to medical service providers and practitioners in assessing the  parameters of medical malpractice actions and what types of treatment and care fall within the realm of those specialized medical services that are not within the realm of common knowledge and experience such that plaintiff’s are expected to clear the higher burdens placed upon them to proceed in a suit alleging medical malpractice.

Supreme Court Holds Late-Filed Notice of Intent Cannot Toll Medical Malpractice Statute of Limitations and Reverses Court of Appeals

On April 27, 2013, the Supreme Court issued an order reversing the Court of Appeals decision in LaJoice v. Northern Michigan Hospitals, Inc., et al (COA Opinion), in which the Court of Appeals held that a late-filed notice of intent to file suit (filed after the statute of limitations expired) could not toll the period of limitations to file a perfected medical malpractice complaint.  The notice of intent did not suspend the wrongful death savings period within which to file a timely malpractice complaint.  Read the Court’s Order here:  LaJoice v. Northern Michigan Hospitals, Inc. et al (Supreme Court Order).

Justice Cavanagh dissented and would have affirmed the Court of Appeals ruling.