DALE BURTON V REED CITY HOSPITAL CORP
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Michigan Supreme Court
Lansing, Michigan
Chief Justice:
Opinion
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED JANUARY 26, 2005
JACK BURTON, Personal
Representative of the Estate
of Dale Burton,
Plaintiff-Appellee,
o. 124928
N
v
REED CITY HOSPITAL CORPORATION,
DR. CHRISTOPHER J. JOHNSON, and
DR. JAMES JOHNSON
Defendants-Appellants.
_______________________________
PER CURIAM
This case presents the question whether a complaint
alleging
medical
malpractice
that
is
filed
before
the
expiration of the notice period provided by MCL 600.2912b
tolls the period of limitations.
that
a
prematurely
provisions
of
MCL
filed
The Court of Appeals held
complaint
600.5856(a).
invokes
We
the
disagree.
tolling
MCL
600.2912b(1) unambiguously states that a person "shall not"
commence an action alleging medical malpractice until the
expiration of the statutory notice period.
A complaint
filed before the expiration of the notice period violates
MCL 600.2912b and is ineffective to toll the limitations
period.
We reverse the judgment of the Court of Appeals
and reinstate the Osceola Circuit Court's grant of summary
disposition for the defendants.
I.
FACTS AND PROCEDURAL HISTORY
On January 17, 1998, plaintiff1 went to the emergency
room
of
defendant
Reed
City
Hospital
abdominal pain, nausea, and vomiting.
presence
of
an
ulcer.
Plaintiff
treated
with
medications
until
January
26,
1998,
individually
the
complaining
of
Tests revealed the
was
January
hospitalized
23,
1998.
named
and
On
defendants
performed stomach and gall bladder surgery on plaintiff.
On
February
10,
2000,
plaintiff
filed
a
medical
malpractice complaint, alleging that his common bile duct
and pancreatic duct were negligently transected during the
surgery and that corrective surgery had to be performed in
November
1998.
Plaintiff
alleges
that
he
suffered
residual, permanent damage as a result of the individual
defendants' negligence.
1
Plaintiff,
Dale
Burton,
died
following
the
proceedings
in
the
trial
court.
The
personal
representative of his estate, Jack Burton, was substituted
as plaintiff. For ease of reference, the term "plaintiff"
refers to the decedent.
2
The alleged malpractice occurred on January 26, 1998.
The period of limitations for a medical malpractice action
is
two
years.
statutory
MCL
600.5805(6).
of
limitations
period
Absent
would
tolling,
therefore
the
have
expired on January 26, 2000.
Plaintiff's counsel sent defendants a notice of intent
to
file
a
claim
600.5856(d),
during
the
if
on
the
notice
October
period
period,
18,
of
the
1999.
Under
limitations
period
of
would
MCL
expire
limitations
is
tolled for 182 days and then resumes running after the 182day
period.
tolled
In
until
this
April
case,
17,
the
2000,
and
limitations
then
period
resumed
was
running,
expiring on July 26, 2000.
Plaintiff filed a complaint and an affidavit of merit
under MCL 600.2912d on February 10, 2000, 115 days after he
provided
his
plaintiff’s
notice
counsel
of
two
intent.
extensions
After
of
receiving
time
in
from
which
to
answer, defendants filed an answer to the complaint on May
8,
2000.
Defendants’
affirmative
defenses
included
following:
5.
That plaintiff's claim is barred by the
applicable Statute of Limitations.
* * *
12.
That plaintiff has failed to comply
with the provisions of MCLA 600.2912b and MCLA
3
the
600.2912d, et seq[.], and plaintiff's complaint
must, therefore, be dismissed.
A
pretrial
2000.
The
"Counsel
status
summary
stated
conference
of
that
that
the
was
held
conference
status
of
on
June
provides
the
29,
that
pleadings
is
satisfactory, pending discovery."
On
August
disposition
24,
2000,
pursuant
defendants
to
MCR
moved
2.116(C)(8)
for
or
summary
(C)(10),
alleging that plaintiff failed to comply with the notice
provisions of MCL 600.2912
et seq.2
Defendants’ motion
pointed out that plaintiff's complaint was filed only 115
days
after
Defendants’
complaint
the
date
motion
did
not
the
notice
alleged
toll
of
that
the
the
intent
was
sent.
prematurely
filed
limitations
period,
which
expired on July 26, 2000.
Plaintiff acknowledged that the complaint was filed
before the expiration of the notice period, but argued that
the filing of the complaint nevertheless tolled the period
of limitations, such that the proper remedy was dismissal
without prejudice.
counsel
had
Plaintiff also asserted that defense
engaged
in
misconduct
2
by
expressing
Defendants also challenged the sufficiency of the
affidavit of merit filed with the complaint.
The trial
court
held
that
the
affidavit
met
the
statutory
requirements. Defendants have not appealed that ruling.
4
satisfaction
pretrial
with
the
conference
state
and
of
by
the
waiting
pleadings
the
after
until
at
the
limitations period had run to bring the motion for summary
disposition.
Plaintiff
argued
that
defense
counsel’s
misconduct resulted in a waiver, or that defendants were
estopped
from
challenging
the
premature
filing
of
the
motion
for
complaint.
The
trial
court
summary disposition.
initially
denied
the
Although the trial court rejected the
plaintiff's
argument
satisfaction
with
that
the
defendants’
state
of
the
expression
pleadings
at
of
the
pretrial conference waived the premature filing defense, it
held that defendants’ failure to bring their motion for
summary
disposition
limitations
period
therefore
before
resulted
denied
the
in
expiration
a
defendants’
waiver.
motion
of
The
for
the
court
summary
disposition.
Defendants
reconsideration,
decision
The
trial
and
filed
the
granted
court
a
motion
trial
court
summary
concluded
for
reconsideration.
reversed
disposition
that
the
to
its
On
prior
defendants.
affirmative
defenses
were sufficiently pleaded to place plaintiff on notice of a
problem before the expiration of the limitations period.
5
Plaintiff
appealed
the
trial
court’s
order
to
the
Court of Appeals, which reversed in a published opinion.
259 Mich App 74; 673 NW2d 135 (2003).
While acknowledging
that dismissal is an appropriate remedy for noncompliance
with the provisions of MCL 600.2912b and that when a case
is
dismissed
applicable
the
statute
nevertheless
plaintiff
of
concluded
must
still
limitations,
that
MCL
toll the period of limitations.
the
comply
Court
600.5856(a)
with
of
the
Appeals
operated
to
Burton, supra at 85.
The Court of Appeals distinguished the present case
from Scarsella v Pollak, 461 Mich 547; 607 NW2d 711 (2000),
in which the plaintiff filed the complaint without also
filing
the
affidavit
of
merit.
The
Court
of
Appeals
determined that because the affidavit of merit was filed
with the complaint in this case, the filing tolled the
period of limitations.
Burton, supra at 85–86.
Finally,
the Court of Appeals concluded that tolling is permissible
where a complaint is filed prematurely because it does not
result in unfair prejudice to the defendant.
It
thus
reversed
the
trial
court’s
Id. at 87–89.
order
granting
defendants’ motion for summary disposition.
Defendants filed an application for leave to appeal to
this Court.
6
II.
We
review
STANDARD OF REVIEW
the
trial
disposition de novo.
court’s
grant
of
summary
Roberts v Mecosta Co Gen Hosp, 466
Mich 57, 62; 642 NW2d 663 (2002) (Roberts I).
This case
involves questions of statutory interpretation, which are
also reviewed de novo.
Id.
The cardinal principle of
statutory construction is that courts must give effect to
legislative intent.
Morales v Auto-Owners Ins Co (After
Remand), 469 Mich 487, 490; 672 NW2d 849 (2003).
When
reviewing a statute, courts necessarily must first examine
the text of the statute.
Dressel v Ameribank, 468 Mich
557, 562; 664 NW2d 151 (2003).
If the Legislature's intent
is clearly expressed by the language of the statute, no
further construction is permitted.
Helder v Sruba, 462
Mich 92, 99; 611 NW2d 309 (2000).
III.
A.
MCL
600.2912b(1)
ANALYSIS
RELEVANT STATUTES
precludes
a
medical
malpractice
claimant from commencing suit against a health professional
or health facility unless written notice is provided to
that
professional
commenced.
or
facility
before
the
action
Section 2912b(1) provides:
Except
as
otherwise
provided
in
this
section, a person shall not commence an action
alleging medical malpractice against a health
7
is
professional or health facility unless the person
has given the health professional or health
facility written notice under this section not
less
than
182
days
before
the
action
is
commenced. [Emphasis supplied.]
After providing the written notice, the claimant is
required to wait for the applicable notice period to pass
before filing suit.
The claimant generally must wait 182
days after providing the notice of intent before commencing
an action alleging medical malpractice.
MCL 600.2912b(1).
A claimant may file an action after 154 days if no response
to
the
notice
is
received
as
contemplated
by
MCL
600.2912b(7).
MCL 600.5856(d) provides that the two-year period of
limitations
for
medical
malpractice
actions
is
tolled
during the notice period if notice is given in compliance
with MCL 600.2912b.
Defendants do not dispute that the
notice given in this case tolled the period of limitations
during the statutory notice period, so that the limitations
period was extended through July 26, 2000.
The
Court
of
Appeals
concluded
that
the
period
of
limitations was further tolled by plaintiff’s prematurely
filed
complaint.
It
relied
on
MCL
600.5856(a),
which
states that the period of limitations is also tolled “[a]t
the time the complaint is filed and a copy of the summons
and complaint are served on the defendant.”
8
B. PLAINTIFF’S PREMATURELY FILED
COMPLAINT DID NOT TOLL THE PERIOD OF LIMITATIONS
Section 2912b(1) unequivocally provides that a person
“shall not” commence an action alleging medical malpractice
against a health professional or health facility until the
expiration of the statutory notice period.
This Court has
previously construed other such imperative language in the
statutes
governing
medical
malpractice
actions.
For
example, in Scarsella, we held that a complaint alleging
medical
malpractice
that
is
not
accompanied
by
the
statutorily required affidavit of merit is not effective to
toll the limitations period because the Legislature clearly
intended that an affidavit of merit “shall” be filed with
the complaint.
adopting
noted
the
that
indicates
a
Id. at 549 (citing MCL 600.2912d[1]).
Court
the
of
Appeals
Legislature’s
mandatory
and
opinion
use
of
imperative
in
Scarsella,
the
In
we
word
“shall”
directive
(citing
Oakland Co v Michigan, 456 Mich 144, 154; 566 NW2d 616
[1997]).
Scarsella, supra at 549.
We concluded that the
filing of a complaint without the required affidavit of
merit was insufficient to commence the lawsuit.
Id.
In Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d
177
(2000),
a
case
involving
tolling
during
the
notice
period, we held that a plaintiff cannot file suit without
9
first
giving
the
Omelenchuk,
supra
limitations
period
notice
at
required
572.
cannot
We
be
by
further
tolled
MCL
600.2912b.
held
unless
complies with the provisions of MCL 600.2912b.
that
a
the
plaintiff
Omelenchuk,
supra at 576.
In Roberts I,3 another case involving tolling during
the notice period, we again emphasized that a plaintiff’s
compliance with MCL 600.2912b is mandatory before tolling
under MCL 600.5856(d) may occur.
67.
Roberts I, supra at 65,
We also held that MCL 600.2912b clearly places the
burden of complying with the notice of intent requirements
on the plaintiff and that this clear, unambiguous statute
requires full compliance with its provisions as written.
Roberts I, supra at 66.
In the instant case, the Court of Appeals correctly
determined
that
dismissal
is
an
appropriate
remedy
for
noncompliance with the notice provisions of MCL 600.2912b
and that when a case is dismissed, the plaintiff must still
comply with the applicable statute of limitations.
See
Gregory v Heritage Hosp, 460 Mich 26, 47-48; 594 NW2d 455
(1999);
Scarsella, supra
at 552.
3
The Court of Appeals
The case was remanded for consideration of other
issues.
Roberts v Mecosta Co Gen Hosp (On Remand), 252
Mich App 664; 653 NW2d 441 (2002); (After Remand) 470 Mich
679; 684 NW2d 711(2004).
10
erred,
however,
decision
of
by
the
basing
trial
its
court
decision
on
the
to
reverse
alleged
the
lack
of
prejudice to the defendants, a factor that is not contained
in the relevant statutes.
The directive in § 2912b(1) that a person “shall not”
commence a medical malpractice action until the expiration
of
the
notice
period
is
similar
to
the
directive
in
§
2912d(1) that a plaintiff’s attorney “shall file with the
complaint an affidavit of merit . . . .”
Each statute sets
forth a prerequisite condition to the commencement of a
medical malpractice lawsuit.
The filing of a complaint
before the expiration of the statutorily mandated notice
period is no more effective to commence a lawsuit than the
filing of a complaint without the required affidavit of
merit.
In each instance, the failure to comply with the
statutory requirement renders the complaint insufficient to
commence the action.
The fact that defendants did not bring their motion
for summary disposition until the period of limitations had
run does not constitute a waiver of the defense.4
4
MCL
The assertion by the dissent that defendants
implicitly waived their statute of limitations defense is
not supported by the evidence.
We agree that a waiver
sometimes “'may be shown by a course of acts and conduct,
and in some cases will be implied therefrom.'”
Klas v
Pearce Hardware & Furniture Co, 202 Mich 334, 339; 168 NW
11
600.2912b places the burden of complying with the notice
provisions on the plaintiff.
we
explained
provision
is
in
to
Roberts
protect
limitations defense.
Roberts I, supra at 66.
I,
a
the
purpose
plaintiff
from
of
a
a
As
tolling
statute
of
Here, defendants specifically raised
the statute of limitations and plaintiff’s compliance with
MCL 600.2912b in their answer and affirmative defenses.5
Such a direct assertion of these defenses by defendants can
425 (1918) (citation omitted).
However, neither of the
acts
cited
by
the
dissent
implies
an
“intentional
abandonment” of defendants’ right to assert a statute of
limitations defense. See Roberts I, supra at 64 n 4.
First, the request for additional time to answer
plaintiff's prematurely filed complaint was not, in fact,
“inconsistent with” their statute of limitations defense.
Defendants did not, as a result of the extension granted
them, file their answer after the limitations period had
expired.
Had they done so, the dissent’s theory would be
more compelling.
Rather, defendants filed their answer
more than two months before the expiration of the
limitations period.
In addition, defendants’ express
incorporation of such a defense in their answer makes clear
that they were not intentionally abandoning that defense
when they sought the extension.
Second, defendants’ expression during a pretrial
conference
that
“the
status
of
the
pleadings
is
satisfactory” was also not “inconsistent with” their
statute of limitations defense. This statement was offered
only after defendants had filed their answer, which
included the statute of limitations defense.
There is
nothing in the record to support an implication that
defendants were willing to waive this defense on the basis
of their “satisfaction” with the status of the pleadings.
5
As noted earlier, the answer and affirmative defenses
were filed on May 8, 2000, more than two months before the
period of limitations expired.
12
by no means be considered a waiver. Roberts I, supra at 6870.
To
the
contrary,
it
was
invocation of such defenses.
a
clear
affirmation
and
Defendants’ pleadings were
more than sufficient to comply with the requirements of MCR
2.116(D)(2)
(requiring
the
statute
of
limitations
to
be
raised in the first responsive pleading or in a motion
filed before the responsive pleading).
The
dissent
contends
that
defendants’
failure
to
comply with the pleading requirements of MCL 600.2912e(1)
and MCR 2.108(A)(1) acts as a forfeiture of the statute of
limitations defense.
Mich
57,
69;
642
In Roberts v Mecosta Co Gen Hosp, 466
NW2d
663
(2002),
we
stated
that
“a
forfeiture necessarily requires that there be a specific
point at which the right must be asserted or be considered
forfeited.”
specific
Id. (emphasis omitted).
point
must
have
either
In this case, that
occurred
at
defendants’
first responsive pleading or at a motion filed before that
pleading.
statute
MCR 2.116(D)(2).
of
limitations
Here, defendants asserted the
argument
in
their
May
8,
2000,
answer to plaintiff’s complaint.
The
failure
dissent
to
meritorious
concludes,
either
defense
requires forfeiture.
answer
however,
or
within
provide
the
that
an
statutory
defendants’
affidavit
time
of
frame
While the medical malpractice statute
13
is silent on the remedy for a violation of the pleading
requirements,
generally,
the
remedy
against
a
party
who
“fail[s] to plead or otherwise defend” in an action is
default.
MCR 2.603(A)(1).
But this remedy was unavailable
to plaintiff, because he afforded defendants two extensions
of time in which to answer and also agreed to extend the
time for service of the affidavit of meritorious defense
through May 28, 2000.
In sum, a party that stipulates an
extension of the time permitted for a filing may not be
heard to complain that the filing, when submitted within
that extended period, is untimely.
IV.
Plaintiff
2912b.
did
not
CONCLUSION
fulfill
his
obligation
under
§
Accordingly, the limitations period was not tolled
by the prematurely filed complaint.
We therefore reverse
the judgment of the Court of Appeals and reinstate the
judgment of the trial court granting summary disposition to
defendants.
Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
14
S T A T E
O F
M I C H I G A N
SUPREME COURT
JACK BURTON, personal
representative of the estate
of Dale Burton,
Plaintiff-Appellee,
v
No. 124928
REED CITY HOSPITAL CORPORATION,
DR. CHIRSTOPHER J. JOHNSON, and
DR. JAMES JOHNSON,
Defendants-Appellants.
_______________________________
KELLY, J. (dissenting).
I would affirm the decision of the Court of Appeals.
Defendants negotiated with plaintiff for extensions of the
time in which to file their answer.
They failed to obtain
approval of any extension from the trial court.
Moreover,
they failed to file their affidavit of meritorious defense
in conformance with the mandatory requirements for medical
malpractice actions.
I would hold that a party who requests a late answer
and
expresses
no
objection
to
the
pleadings
cannot
challenge an early complaint. Defendants implicitly waived
their
statute
of
limitations
timing of plaintiff’s complaint.
defense
predicated
on
the
Moreover,
under
the
Court’s
interpretation
of
the
statutes governing medical malpractice actions, defendants’
failure to conform to the mandatory pleading requirements
should have rendered their answer a nullity.
the
statute
of
limitations
defense
Accordingly,
should
be
deemed
forfeited.
Plaintiff's complaint, which was filed before the end
of
the
statutory
waiting
period
for
medical
claims, was timely in all other respects.
Court
of
prejudice
Appeals
that
was
unjust
an
the
trial
remedy
I agree with the
court’s
in
malpractice
light
dismissal
of
with
defendants’
conduct.
I. STANDARD
OF
REVIEW
When presented with a motion for summary disposition
under MCR 2.116(C)(7), the court considers the pleadings,
affidavits, and other documentary evidence.
MCR 2.116(G).
In this case, the facts needed to review defendants' motion
for summary disposition are not in dispute.
This case involves an issue of statutory construction.
We
review
it
de
novo.
Cardinal
Mooney
High
School
v
Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467
NW2d
21
(1991).
interpretation
Legislature.
is
The
to
give
primary
effect
goal
to
the
of
statutory
intent
of
the
In re MCI Telecom Complaint, 460 Mich 396,
2
411; 596 NW2d 164 (1999).
The provisions of a statute must
be
of
read
in
the
interest
of
producing
an
Murphy,
464
Prosecutor
v
context
the
entire
statute
harmonious
whole.
Mich
159;
149,
in
the
Macomb
Co
NW2d
247
627
(2001).
II. BACKGROUND
On
January
defendant
hospital
plaintiff.1
they
25,
1998,
the
performed
defendant
doctors
the
surgery
exploratory
at
on
Plaintiff has alleged that, during the surgery,
committed
malpractice
by
negligently
cutting
his
common bile and pancreatic ducts.
In order to file a complaint for this malpractice, a
Michigan
statute
required
plaintiff
with a notice of intent to sue.
to
serve
defendants
MCL 600.2912b.
Plaintiff
served this notice on October 18, 1999, well within the
two-year
statutory
period
malpractice actions.2
respond.
affidavit
merit
limitations
MCL 600.5805(6).
Plaintiff’s
of
of
on
counsel
February
for
medical
Defendants did not
filed
the
10,
2000.
complaint
and
Plaintiff’s
1
Plaintiff,
Dale
Burton,
died
following
the
proceedings
in
the
trial
court.
The
personal
representative of his estate, Jack Burton, was substituted
as plaintiff. For ease of reference, the term “plaintiff”
refers to the decedent.
2
This tolled the running of the limitations period.
MCL 600.5856(d).
3
counsel asserted that 154 days had elapsed since he filed
the notice and that, since defendants had not responded, he
believed that he was entitled to file the complaint early.
MCL 600.2912b(8).
In fact, defendants’ failure to respond
did not entitle plaintiff to file his complaint until March
20, 2000.
Rather
than
comment
on
the
premature
filing,
defendants told plaintiff that they intended to file an
answer and received two extensions from him.
On March 7,
2000, defendants obtained from plaintiff an extension of
the time in which to answer.
On the date that extension
expired, defendants obtained another extension through May
4, 2000.
They told plaintiff that they “looked forward to
working with” him and “appreciate[d plaintiff’s] continued
cooperation.”
When
ultimately
defendants
filed
their
answer
on
May 8, 2000, it was not timely under either the statutory
pleading rules for medical malpractice claims or the court
rules.3
See
MCL
600.2912e(1)
and
MCR
2.108(A)(1).
It
lacked supporting facts, as required by the Michigan court
rules.
MCR 2.111(F).
Moreover, it lacked the requisite
affidavit of meritorious defense, as required by statute.
3
It was also after the
extension granted by plaintiff.
4
expiration
of
the
second
MCL 600.2912e.
This affidavit was not filed until May 15,
2000, four days after the mandatory ninety-one-day deadline
expired.
MCL 600.2912e(1).
Defendants’ answer included a statute of limitations
defense.
However,
it
did
not
indicate
defendants’ assertion of the defense.
the
basis
for
On the date the
answer was filed, the limitations period had not yet run.
The defense was not yet viable and appeared to have been
included in the answer as boilerplate.
Plaintiff denied
that the defense was applicable.
At a pretrial conference on June 29, 2000, defendants
expressed satisfaction with the pleadings.
Then, on August
24, 2000, defendants brought a motion to dismiss the claim
under MCR 2.116(C)(8) or (C)(10),
had
not
600.2912b
complied
and
with
MCL
the
asserting that plaintiff
timing
600.2912d.
provisions
Plaintiff
defendants’ motion on several grounds.
was
that
defendants’
conduct
had
of
MCL
challenged
Among the reasons
waived
the
statute
of
limitations defense.
The trial court granted the motion.
It held that the
statute of limitations defense in defendants’ answer had
placed plaintiff on notice of a problem with his pleadings
before the expiration of the period of limitations.
5
The Court of Appeals reversed the grant of summary
disposition.
limitations
It
opined
had
not
that
the
elapsed,
statutory
period
because
of
plaintiff's
prematurely filed complaint and affidavit had tolled the
period of limitations.
Burton v Reed City Hosp Corp, 259
Mich App 74; 673 NW2d 135 (2003).
Tolling should be found
to have occurred, it reasoned, because defendants had not
been
prejudiced
and
because
summary
disposition
with
prejudice was an unnecessarily harsh remedy.
III. ANALYSIS
A. DEFENDANTS WAIVED
In
the
trial
THE
STATUTE
LIMITATIONS DEFENSE
plaintiff
court,
OF
argued
that
the
affirmative defense of the statute of limitations had been
waived.
I
agree.
“'[W]aiver
is
the
“intentional
relinquishment or abandonment of a known right.”’”
People
v Carines, 460 Mich 750, 762 n 7; 597 NW2d 130 (1999),
quoting United States v Olano, 507 US 725, 733; 113 S Ct
1770; 123 L Ed 2d 508 (1993).
It is an equitable doctrine
applied judicially to avoid injustice.
Roberts v Mecosta
Co Gen Hosp, 466 Mich 57, 76 n 9; 642 NW2d 663 (2002)
(KELLY, J., dissenting).
Waiver may be implied by conduct inconsistent with the
intent to assert the right. 28 Am Jur 2d, Estoppel and
Waiver, § 209, pp 612-613.
The party waiving the right
6
must have actual or constructive knowledge of facts that
would create the right.
Id., § 202, pp 607-608.
Here, defendants did not respond to plaintiff’s notice
of
intent
to
sue.
Defendants
after receiving his complaint.
contacted
plaintiff
only
Defendants requested two
extensions of the time in which to file their answer.
They
reserved no rights or defenses.
Defendants’ answer raised the affirmative defense of
the
statute
viable.
of
limitations
at
a
time
when
it
was
not
Plaintiff denied that the defense was applicable.
At a pretrial conference, defendants expressed satisfaction
with the pleadings.
Defendants
elapsed.
knew
that
the
notice
had
not
They also knew that plaintiff’s complaint was
subject to a statute of limitations.
mention
period
that
the
complaint
had
been
Yet they made no
filed
prematurely.
They did not then assert, and have not yet asserted, any
prejudice from receiving plaintiff’s complaint before the
full notice period had elapsed.
Defendants induced plaintiff to believe that they had
no objection to the timing of his complaint.
Defendants,
who asked twice to file a late answer, cannot equitably
7
harbor
a
challenge
to
plaintiff’s
complaint.4
early
Plaintiff’s claim should not be subject to dismissal, with
prejudice
or
otherwise.
I
would
hold
that
defendants’
actions implied a knowing waiver of any affirmative defense
that
is
based
on
the
premature
filing
of
plaintiff’s
complaint.
B. UNDER
This
cases,
MAJORITY’S JURISPRUDENCE,
THE STATUTE OF LIMITATIONS
THE
Court
pleading
has
held
that,
requirements
DEFENDANTS FORFEITED
DEFENSE
in
must
medical
be
malpractice
strictly
followed.
For instance, an affidavit of merit “shall” accompany the
complaint,5 unless the plaintiff obtains an extension from
the trial court pursuant to MCL 600.2912d(2).
In
Scarsella
600.2912d(1).
affidavit
of
v
Pollak,6
this
Court
considered
MCL
There, the plaintiff failed to include an
merit
obtain an extension.
with
his
complaint
and
neglected
to
The statutory period of limitations
had expired before the plaintiff filed the affidavit.
4
The
The majority contends that plaintiff is not entitled
to pursue his claim because “a party that stipulates [to]
an extension of the time permitted for a filing may not be
heard to complain that the filing, when submitted within
that extended period, is untimely.” Ante at 14. However,
plaintiff is not claiming that defendants’ answer was
untimely.
5
MCL 600.2912d(1).
6
461 Mich 547, 553; 607 NW2d 711 (2000).
8
Court held that, because the plaintiff failed to comply
with the mandatory requirement, he failed to commence the
action.
Thus,
nullity’”
and
Scarsella,
the
did
supra
filing
not
at
of
toll
549
the
the
complaint
period
(citation
of
“‘was
a
limitations.
omitted).
This
interpretation, it concluded, was necessary to effectuate
“the
Legislature’s
merit
‘shall’
600.2912d(1).”
clear
be
statement
filed
that
with
the
has
held
an
affidavit
complaint.
of
MCL
Id. at 552.
Similarly,
this
Court
that
“a
plaintiff
cannot file suit without giving the notice required by [MCL
600.2912b(1)].”
Omelenchuk v City of Warren, 461 Mich 567,
572;
177
609
grounds
(2004).
NW2d
Waltz
v
(2000),
Wyse,
469
overruled
Mich
in
642,
655;
part
677
on
other
NW2d
813
The failure to file a notice precludes the filing
of a valid complaint.
By contrast, defendants “must file
an affidavit as provided in . . . [MCL] 600.2912e . . . .”
MCR 2.112(L).
The Legislature has mandated that medical
malpractice defendants promptly respond to complaints with
an affidavit of meritorious defense.
Unlike plaintiffs,
defendants may not obtain “an additional 28 days in which
to
file
the
affidavit
required
600.2912d(2) and MCL 600.2912e.
.
.
.
.”
See
MCL
The fact that, in this
case, the parties had agreed to extend the time in which to
9
answer
is
of
no
moment.
The
parties
statutes by extrajudicial agreement.
may
not
rewrite
See Harvey v Harvey,
470 Mich 186, 193-194; 680 NW2d 835 (2004).
Defendants’
defense
failed
answer
to
and
conform
affidavit
to
the
of
pleading
meritorious
requirements.
Therefore, the trial court could have concluded, following
the reasoning in Scarsella and Omelenchuk, that the answer
was deficient.
On motion by plaintiff or at the court’s
own initiative, defendants’ nonconforming answer could then
have been stricken.
MCR 2.115(B).
If this had occurred,
plaintiff would have been entitled to judgment by default.
MCR 2.603(A)(1).
See Kowalski v Fiutowski, 247 Mich App
156; 635 NW2d 502 (2001).
However, plaintiff did not move to strike defendants’
answer or for a default judgment.
Nevertheless, the court
rules
limitations
require
asserted
in
forfeited.
that
the
a
statute
first
of
responsive
MCR 2.116(D)(2).
pleading,
defense
be
or
is
it
Forfeiture is the failure to
timely assert a known right.
Quality Products & Concepts
Co v Nagel Precision, Inc, 469 Mich 362, 379; 666 NW2d 251
(2003).
If
the
reasoning
of
Scarsella
were
consistently
applied to MCL 600.2912e(1) as it was to MCL 600.2912d(2),
defendants’
answer
would
be
10
deemed
a
nullity
because
defendants
failed
requirements.
to
Thus,
satisfy
even
the
assuming
mandatory
that
the
statutory
statute
of
limitations defense was a viable affirmative defense at the
time it was raised, the defense would be deemed forfeited.
This holding would effectuate “the Legislature’s clear
statement”7 that without exception, after the plaintiff has
filed a complaint and the requisite affidavit of merit, an
answer shall be filed “within 21 days.”
In addition, an
affidavit of meritorious defense shall be filed within “91
days.”
Their
MCL 600.2912e(1).
statute
of
Here, defendants did neither.
limitations
defense
should
be
deemed
forfeited.
C. DISMISSING PLAINTIFF’S CLAIM WITH PREJUDICE UNDERMINES
THE INTENT OF THE LEGISLATURE
The
requires
claim.
7
notice
a
provision
plaintiff
to
MCL 600.2912b(4).8
for
medical
provide
a
malpractice
sound
basis
suits
for
his
The Legislature enacted these
Scarsella, supra at 552.
8
The notice given to a health professional or
health facility under this section shall contain
a statement of at least all of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or
care alleged by the claimant.
11
requirements
to
discourage
frivolous
lawsuits
and
allow
only meritorious claims to proceed.
The Legislature also imposed a presuit requirement on
defendants accused of medical malpractice.
provide
the
malpractice.
basis
for
their
defense
Defendants must
to
the
alleged
MCL 600.2912b(7).9
(c) The manner in which it is claimed that
the applicable standard of practice or care was
breached by the health professional or health
facility.
(d) The alleged action that should have been
taken to achieve compliance with the alleged
standard of practice or care.
(e) The manner in which it is alleged the
breach of the standard of practice or care was
the proximate cause of the injury claimed in the
notice.
(f) The names of all health professionals
and health facilities the claimant is notifying
under this section in relation to the claim.
9
Within 154 days after receipt of notice
under this section, the health professional or
health facility against whom the claim is made
shall furnish to the claimant or his or her
authorized representative a written response that
contains a statement of each of the following:
(a) The factual basis for the defense to the
claim.
(b) The standard of practice or care that
the health professional or health facility claims
to be applicable to the action and that the
health professional or health facility complied
with that standard.
12
When these subsections of § 2912b are read together it
is apparent that the notice requirements were imposed also
to facilitate settlement.
They provide the parties with a
mandatory period in which to investigate a pending claim
and
negotiate
a
settlement
before
suit
is
filed.
See
Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679,
707; 684 NW2d 711 (2004) (KELLY, J., dissenting). If the
defendant
indicating
fails
he
to
does
respond
not
to
wish
to
the
notice
settle
the
of
intent,
case,
plaintiff is excused from the 182-day requirement.
plaintiff may file suit after 154 days.
the
The
MCL 600.2912b(8).
In this case, defendants did not take advantage of the
statutory notice period.
a settlement.
notice at all.
They did not attempt to negotiate
In fact, they did not respond to plaintiff's
Plaintiff was thus entitled to file his
complaint after 154 days.
However, he erroneously filed
his complaint and affidavit of merit after 115 days.
(c) The manner in which it is claimed by the
health professional or health facility that there
was compliance with the applicable standard of
practice or care.
(d)
The
manner
in
which
the
health
professional or health facility contends that the
alleged negligence of the health professional or
health facility was not the proximate cause of
the claimant's alleged injury or alleged damage.
13
Defendants continued to violate the procedural rules.
They did not timely file their answer.
MCR 2.108(A)(1).
Rather, they obtained two extensions from plaintiff.
They
asserted that they had difficulty obtaining the relevant
records from each other and needed more time to prepare
their answer.
trial
court
Defendants
They did not seek an extension from the
as
the
also
court
failed
rules
to
timely
affidavit of meritorious defense.
allow.
MCR
2.108(E).
file
their
mandatory
MCL 600.2912e.
When
defendants ultimately answered, they included a statute of
limitations defense.
As the Court of Appeals noted:
“Statutes
of
limitation
are
procedural
devices intended to promote judicial economy and
the rights of defendants. For instance, they
protect defendants and the courts from having to
deal with cases in which the search for truth may
be seriously impaired by the loss of evidence.
They also prevent plaintiffs from sleeping on
their rights; a plaintiff who delays bringing an
action profits over an unsuspecting defendant who
must prepare a defense long after the event from
which the action arose.”
[Burton, supra at 83,
quoting Stephens v Dixon, 449 Mich 531, 534; 536
NW2d 755 (1995).]
Defendants asserted the statute of limitations defense
after
quarrel
inducing
with
plaintiff
the
timing
to
of
believe
his
that
complaint.
they
had
no
Defendants
themselves failed to comply with procedural requirements.
Allowing defendants to prevail here frustrates the purposes
14
of the requirements, does nothing to deter stale claims,
and does not discourage frivolous litigation.
precludes
valid
encourages
suits
trial
by
from
proceeding
ambush,
and
on
Rather, it
their
discourages
merits,
cooperation
between the parties.10
It unjustly penalizes the innocent
injured
negligent
and
allows
tortfeasors
to
avoid
responsibility for their actions through gamesmanship.11
Although,
should
not
pursuant
have
been
to
MCL
allowed
600.2912b(1),
to
commence
plaintiff
his
suit,
defendants are not entitled to summary disposition.
Given
that defendants' conduct constitutes waiver of the statute
of
limitations
defense,
dismissal
of
the
complaint
is
contrary to the Legislature’s intent and the goals of the
relevant court rules.
10
Under the reasoning of today’s decision, any
deviation from a mandatory statutory deadline risks summary
disposition. Parties may now be required to object to any
requested accommodation.
This is likely to diminish the
frequency of settlement.
In the future, cooperation like
that by plaintiff’s counsel may even constitute legal
malpractice if it voids an otherwise valid claim or
defense.
11
Indeed, defendants could not, after two extensions,
timely file an affidavit of meritorious defense.
Despite
the misfeasance of defendants, the majority has chosen to
selectively apply the statute in lieu of invoking equitable
doctrines that ensure justice and fair play.
15
IV. CONCLUSION
I disagree that defendants who have slept on their
rights
as
in
this
case
are
entitled
to
raise
affirmative defense of the statute of limitations.
the
I would
hold that the defendants here waived and then forfeited the
defense.
To hold that plaintiff’s complaint does not toll the
period
of
limitations
undermines
the
intent
of
the
Legislature.
It does not promote resolution of meritorious
claims.
does
It
not
discourage
frivolous
claims.
It
encourages gamesmanship.
The
Court
of
Appeals
properly
reversed
the
trial
court’s grant of summary disposition for defendants.
I
would reinstate plaintiff’s claim and remand the case for
trial on the merits.
Marilyn Kelly
Michael F. Cavanagh
16
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