Tyra v. Organ Procurement Agency
302 Mich. App. 208
| Mich. Ct. App. | 2013Background
- Plaintiff received a kidney transplant on June 9, 2007 and alleges the cross-match was not properly checked.
- Plaintiff served NOI under MCL 600.2912b on April 23, 2009 and filed her complaint August 13, 2009, 112 days later.
- Plaintiff argued defendants failed to properly plead the notice-period defense under MCR 2.111(F).
- Trial court granted summary disposition under MCR 2.116(C)(7) relying on binding caselaw that the action was time-barred.
- Court remanded to consider amending the filing date of the complaint under MCL 600.2301 and to evaluate Zwiers-based relief, rather than deny on a strict technical basis.
- Under controlling precedent, a premature complaint does not commence a medical malpractice action or toll the limitations period, but amendments under 600.2301 may be possible depending on facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of the notice-period defense under MCR 2.111(F)? | Plaintiff argues waiver applies to the defense due to insufficient pleading. | Defendants contend the defense was sufficiently raised. | Waived due to insufficient factual pleading of the defense. |
| Can the plaintiff amend the premature filing date under MCL 600.2301? | Amendment should be allowed under Zwiers to avoid harsh results. | Amendment should be limited and may prejudice defendants. | Remand to assess amendment possibility and prejudice; not foreclosed. |
| Was Burton still binding law on tolling with premature filing? | Burton tolling should be reconsidered in light of Bush and Driver. | Burton remains controlling; premature filing does not toll limitations. | Burton remains binding; premature filing does not toll the statute. |
| Whether Zwiers v Growney applies to allow amendment under 600.2301? | Zwiers supports amendment when timely NOI exists and no prejudice. | Zwiers applicability is uncertain after Driver; may not control. | Court should evaluate the applicability of Zwiers on remand. |
Key Cases Cited
- Burton v Reed City Hosp Corp, 471 Mich 745 (2005) (tolling depends on compliance with notice-waiting period; premature filing generally not tolled)
- Driver v Naini, 490 Mich 239 (2011) (affirms Burton; premature filing does not toll limitations; emphasizes notice provisions)
- Bush v Shabahang, 484 Mich 156 (2009) (NOI tolls limitations if compliant; focus on notice waiting period)
- Zwiers v Growney, 286 Mich App 38 (2009) (amendment possible under 600.2301 when premature filing; contingent on prejudice and good faith)
- Scarsella v Pollak, 461 Mich 547 (2000) (affidavit of merit requirement; tolling implications for malpractice actions)
- Roberts v Mecosta Co Gen Hosp, 466 Mich 57 (2002) (strict compliance with 600.2912b required for tolling)