*1 Reed REED BURTON v CITY HOSPITAL CORPORATION January application by Docket No. 124928. Decided 2005. On the Court, appeal, Supreme defendants for leave to the in lieu of leave, granting judgment Appeals the of the reversed Court of and judgment reinstated the of the circuit court. brought Dale Burton a medical action in the Osceola City against Hospital Corporation Circuit Reed and Court others. summary disposition The defendants moved for on the basis that complaint plaintiff filed his and affidavit of merit before the expiration period provided of the notice in MCL 600.2912b and prematurely complaint statutory that the did filed not toll the period hmitations, court, expired. which had The Lawrence C. Root, J., granted following the motion. The died proceedings Burton, personal representative and Jack of the plaintiffs estate, plaintiff. was substituted as the The Court of EJ., Appeals, JJ., reversed, and and Fort Cooper Smolenski, Hood, holding prematurely complaint tolling that a filed invokes the 600.5856(a). provisions App of MCL The sought appeal. leave to curiam, opinion per signed by In an Chief Justice and Taylor, Supreme Justices and Corrigan, Young, Weaver, Markman, Court held: complaint expiration period A filed before the of the notice provided by MCL 600.2912b violates the and is ineffective prematurely complaint to toll the of hmitations. The period. Appeals correctly did not toh the hmitations The Court of appropriate remedy noncomphance held that dismissal is an for provisions § with the notice 2912b that when case is apphcahle dismissed the must still erred, however, statute of hmitations. The Court of concluding alleged prejudice lack of to the defendants justified tolling period. filing of the hmitations The of a statutorily expiration before the mandated notice regardless preju- is ineffective to commence the lawsuit addition, dice In to the defendants. where the defendants had timely pleaded defense, the statute of hmitations as an affirmative summary disposition the fact that the defendants did for not move [Jan- period of limitations had run does not constitute a waiver
until the pleadings of the statute of limitations defense. The defendants’ preserve were sufficient to assert and the defense. evidence implicitly their statute does not show that the defendants waived *2 of limitations defense.
Reversed; judgment circuit court reinstated. Cavanagh, dissenting, joined by stated Justice Justice Kelly, Appeals properly grant the trial that the Court of reversed court’s summary disposition. claim should he reinstated of be trial a trial on and the matter should remanded to the court for the merits. party requests expresses objection A a late no who answer and pleadings challenge early complaint.
to the cannot an The defen- implicitly predi- the statute of dants waived limitations defense timing plaintiffs complaint by expressing cated on the pleadings, failing object timing to the of satisfaction to the plaintiffs complaint, requesting and two extensions of the time to file their answer. The defendants also forfeited the defense of the statute of timely limitations. The defendants did not file under their answer 600.2912e(l) 2.108(A)(1).They timely
MCL or MCR did not file 600.2912e(l). requisite of the affidavit meritorious defense. MCL mandatory pleading The defendants’ failure to conform the requirements governing their answer and affidavit of meritorious nullity. defense should have rendered their answer a prejudice unjust remedy The trial court’s dismissal with was an fight complaint of the defendants’ conduct. The dismissal of contrary goals to the of the relevant court rules and the Legislature’s promoting intent of the resolution of meritorious discouraging gamesmanship. claims and frivolous claims — — Malpractice Actions Medical Limitation of Actions. plaintiff may malpractice A not commence a medical action unless defendant; provided written notice of intent to file suit is to the notice, providing appli- after must wait for the period pass filing suit; cable notice before an action filed before expiration of the notice does not toll the (MCL 600.5856[a]). applicable 600.2912b, limitations to the action Parker) Christensen, (by & P.C. David R. Charfoos Renter, [Detroit], and Richard A. (by PC. Richard A. Renter), plaintiff. for the v Reed Opinion of the Court
Aardema, & (by Whitelaw Sears-Ewald PLLC Brian Whitelaw) W. for the defendants.
Per Curiam. This case presents question whether medical complaint alleging malpractice that is filed before the expiration period provided by the notice MCL the period 600.2912b tolls of limitations. The Court of held that prematurely filed com- plaint tolling provisions invokes of MCL 600.5856(a). 600.2912b(l) disagree. We unam- biguously states that a person “shall not” commence an alleging action medical until the expiration of the statutory period. notice A before the expiration of the notice period violates MCL 600.2912b and is ineffective to toll the limitations period. judgment We reverse the of the Court of Appeals and reinstate the Osceola Circuit grant Court’s summary disposition for the defendants.
I. FACTS AND PROCEDURAL HISTORY January 17, 1998, On plaintiff1 went to the emer- gency room of defendant City Reed Hospital complain- ing abdominal pain, nausea, and vomiting. Tests revealed the presence of an ulcer. Plaintiff was hospi- talized and 23, treated with until January medications January 26, 1998, 1998. On individually named performed gall stomach and bladder surgery on plaintiff. February 10, 2000,
On plaintiff filed a medical mal- practice complaint, alleging that his common bile duct and pancreatic duct negligently during were transected 1 Plaintiff, Burton, following proceedings Dale died in the trial personal representative estate, Burton, court. The of his Jack was plaintiff. reference, “plaintiff” as substituted For ease of the term refers to the decedent. Mich 745 Opinion of the Court had to be surgery surgery and that corrective that he alleges Plaintiff in November 1998.
performed residual, damage as result permanent suffered negligence. defendants’ individual 26, January on malpractice occurred alleged malprac- of limitations for a medical period 1998. The 600.5805(6). Absent years. tice action is two there- statutory period of limitations would tolling, 26, January on 2000. expired fore have a notice of intent Plaintiffs counsel sent defendants 18, 1999. Under MCL to file a claim on October 600.5856(d), period expire if the of limitations would the notice of limitations is during period, running and then after the days tolled for 182 resumes case, In this the limitations 182-day period. 17, 2000, running, and then resumed April
tolled until 26, 2000. expiring July on an merit Plaintiff filed a and affidavit of 10, February days on under MCL 600.2912d receiving he notice of intent. After provided after his counsel two extensions of time which plaintiffs from answer, an to the complaint defendants filed answer in- May 8, 2000. Defendants’ affirmative defenses following: cluded the applicable
5. That claim is barred of Limitations. Statute provi-
12. That has failed to 600.2912d, seq\.], et sions of MOLA 600.2912b and MCLA must, therefore, plaintiffs complaint be dismissed. *4 29, A status conference was held on June pretrial that summary provides 2000. The of that conference v Reed Opinion of the Court “Counsel stated that of the pleadings status satisfactory, pending discovery.” 24, 2000,
On August defendants moved for summary 2.116(C)(8) disposition pursuant (C)(10), to MCR that alleging failed to with the notice provisions of MCL 600.2912 et seq.2Defendants’ motion out pointed plaintiffs complaint that filed only days after the date the notice of intent was sent. alleged Defendants’ motion that the prematurely filed complaint did not toll the limitations which period, expired on July 2000.
Plaintiff acknowledged 'that the was filed before the expiration of the notice period, argued but the filing that of the complaint nevertheless tolled the limitations, such that the proper remedy was prejudice. dismissal without Plaintiff also asserted that defense counsel had engaged by express- misconduct ing satisfaction with the state of pleadings at the pretrial conference and waiting until after the limita- tions bring run to summary motion for disposition. Plaintiff argued that defense counsel’s mis- waiver, conduct resulted in a or that defendants were from estopped challenging premature filing of the complaint.
The trial court denied initially the motion for sum- mary disposition. Although rejected the trial court plaintiffs argument expression defendants’ of sat- isfaction with the of the pleadings pretrial state at the premature defense, conference waived the filing it held that defendants’ failure to their bring motion for sum- mary disposition expiration before the of the limitations challenged sufficiency Defendants also of the affidavit of merit complaint. filed with the The trial court held that the affidavit met the statutory requirements. appealed ruling. Defendants have not
750 Opinion op the Court in The court therefore denied resulted a waiver. period summary disposition. motion for defendants’ filed motion for reconsideration. On Defendants a
reconsideration,
prior
the trial court reversed its
deci-
summary
to defendants.
granted
disposition
sion and
trial court concluded that the affirmative defenses
a
sufficiently pleaded
place plaintiff
were
on notice of
the
problem
expiration
period.
before the
of
limitations
Plaintiff
the trial court’s order to the Court
appealed
published opinion.
of
reversed in a
259
Appeals, which
(2003).
74;
acknowledg-
Mich
The Court of case Pollak, 547; from Scarsella v 461 Mich NW2d (2000), in which the filed the complaint without also the affidavit of merit. The filing Court of determined that because the affidavit of merit case, in this filing tolled the Burton, Finally, of limitations. at 85-86. supra Court Appeals tolling permissible of concluded that is a complaint prematurely where is filed because it does not result unfair to the defendant. Id. at prejudice 87-89. It thus reversed the trial granting court’s order defendants’ motion summary disposition. for application appeal
Defendants filed an for leave to this Court.
II.
OF
STANDARD
REVIEW
trial
grant
summary dispo-
We review the
court’s
sition de novo. Roberts v Mecosta Co
Hosp,
Gen
v Reed
Opinion of the Court
(2002) (Roberts I).
57, 62;
Mich
III. ANALYSIS A. RELEVANT STATUTES 600.2912b(l) MCL precludes a medical malpractice claimant from commencing against suit a health pro- fessional or health facility unless written notice is provided to professional that or facility before the 2912b(l) action is commenced. Section provides: Except as provided otherwise section, person in this shall not commence an alleging action malpractice medical against a professional health or facility health unless the person given has professional the health facility health written notice under this section not days less than 182 before the action [Emphasis is commenced. supplied.] After providing the notice, written 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 com- mencing an action alleging malpractice. medical MCL 600.2912b(l). A claimant may file an action after 154 days if no response to the notice is received as contem- 600.2912b(7). plated by MCL
Opinion of the Court
600.5856(d)
two-year period
that the
provides
MCL
actions is tolled
malpractice
of limitations for medical
compliance
if
is
in
period
given
the notice
notice
during
dispute
do not
that
with MCL 600.2912b. Defendants
in
tolled the
of limita-
given
period
the notice
this case
notice
so that
during
statutory
period,
tions
July 26, 2000.
through
limitations
was extended
period
period
The Court of
concluded
by plaintiffs prematurely
limitations was further tolled
600.5856(a),
complaint.
It relied on
which
that the
is also tolled
“[a]t
states
limitations
complaint
the time the
is filed and a
of the
copy
summons and
are served on the defendant.”
B.
PREMATURELY FILED
PLAINTIFF’S
DID
THE
COMPLAINT
NOT TOLL
PERIOD OF LIMITATIONS
2912b(l)
Section
that a
unequivocally provides
per
not” commence an
medical
alleging
son “shall
action
a health
or health
malpractice against
professional
facility
expiration
statutory
until
notice
period.
previously
This Court has
construed other such
in
language
governing
the statutes
medical
imperative
Scarsella,
malpractice
example,
actions. For
we held
that a complaint alleging
medical
not
accompanied by
statutorily required affidavit
merit
is not effective to toll
the limitations
*7
Legislature clearly
because the
intended that an affida
vit of merit “shall” be filed with the
Id. at
complaint.
600.2912d[1]).
(citing
adopting
549
MCL
In
the Court of
Scarsella,
in
that
Appeals opinion
Legis
we noted
the
use of the
indicates a mandatory
lature’s
“shall”
word
imperative
(citing
directive
Oakland Co v Michi
[1997]).
Mich
gan, 456
In Omelenchuk v 461 Mich City of (2000), tolling during a case the involving NW2d 177 held that a cannot file period, plaintiff notice we suit giving required by without first notice Omelenchuk, 600.2912b. at 572. We further held supra the limitations cannot be tolled unless with the complies provisions of MCL Omelenchuk, supra 600.2912b. at 576. I,3
In Roberts another case involving tolling during period, again the notice we that a emphasized compliance mandatory with MCL 600.2912b is before 600.5856(d) I, tolling under MCL may occur. Roberts 65, at 67. also held supra We that MCL 600.2912b clearly places the burden of complying with the notice of intent requirements and that this clear, unambiguous requires compliance full I, provisions with its as written. supra Roberts at 66. In case, the instant Appeals correctly Court of determined that dismissal is an appropriate remedy for noncompliance with the provisions notice of MCL and that dismissed, 600.2912b when a case is plaintiff must still applicable statute of limitations. See Gregory Heritage Hosp, 460 Mich 47-48; (1999); Scarsella, at supra 552. erred, however, The Court by basing its decision to reverse the decision of the trial court on the alleged defendants, lack of to the prejudice a factor that is not contained in the relevant statutes. 2912b(l) in §
The directive that a not” person “shall commence a medical until expi- action ration of the notice is similar to the directive 2912d(l) plaintiffs attorney § that a “shall file
3 The case was remanded for consideration of other issues. Roberts v (On Remand), 664; Hosp App Mich Mecosta Co Gen 653 NW2d 711(2004). Remand) (2002); 679; (After 684 NW2d *8 754 the Court an affidavit of merit.. . Each statute sets complaint to the commencement of prerequisite forth a condition complaint of a filing a medical lawsuit. mandated notice expiration statutorily the before commence a lawsuit than period is no more effective to required of a affidavit filing complaint without instance, of merit. In each the failure to with complaint renders the insuffi- statutory requirement cient to commence the action. bring did not their motion
The fact that defendants summary for until the of limitations disposition had run does not constitute a waiver of the defense.4 places complying MCL 600.2912b the burden of I, provisions the notice on the Roberts at plaintiff. supra I, in explained purpose tolling 66. As we Roberts of a by implicitly The assertion their the dissent defendants waived supported by agree statute of limitations defense is not the evidence. We “ ‘may by conduct, that a waiver sometimes be a course of acts and shown ” implied and in cases therefrom.’ some will be Klas Pearce Hardware (1918) (citation Co, & Furniture NW omitted). However, implies neither of the acts cited the dissent an right “intentional abandonment” of defendants’ to assert a statute of I, supra limitations defense. at 64 n 4. See Roberts First, request plaintiffs prema- additional time to for answer not, turely fact, in “inconsistent with” their statute not, of limitations did a defense. Defendants as result of the extension them, granted expired. file their answer after the limitations they so, Rather, theory compelling. Had done the dissent’s would be more expira- defendants filed their answer more than two months before the addition, period. express incorpo- tion of the limitations In defendants’ they ration of such a defense in their answer makes clear that were not intentionally abandoning they sought that defense when the extension. Second, expression during pretrial defendants’ conference “the pleadings satisfactory” status of the was also not “inconsistent with” only their statute of limitations defense. This statement was offered after answer, had filed defendants their which included the statute of limita- nothing support implication tions defense. There is the record to an willing that defendants were this on the basis of their waive defense pleadings. “satisfaction” with the status of the v Reed Opinion of the Court protect is to from a statute of provision Here, limitations defense. raised specifically of limitations and plaintiffs compliance *9 in their and affirmative with MCL 600.2912b answer a by defenses.5 Such direct assertion of these defenses can no a by means be considered waiver. I, contrary, at 68-70. To the it was clear supra Roberts affirmation and invocation of such defenses. Defen- pleadings dants’ were more than sufficient to 2.116(D)(2) requirements of MCR (requiring the statute of limitations to be raised in the first in responsive pleading or a motion filed before the responsive pleading).
The dissent contends that defendants’ failure to com 600.2912e(l) the ply pleading requirements of MCL 2.108(A)(1) and MCR acts as a forfeiture statute of In hmitations defense. Roberts v Mecosta Co Gen Hosp, Mich (2002), we stated that “a forfeiture necessarily requires that there be a specific point at which right must be asserted or be consid omitted). ered forfeited.” (emphasis case, Id. In this that specific point must have either occurred at defendants’ first responsive pleading or at a motion filed before that 2.116(D)(2). pleading. Here, MCR defendants asserted argument statute of hmitations May 8,2000, their answer to complaint. concludes,
The dissent however, that defendants’ failure to either answer provide an affidavit of meritorious defense within the statutory time frame requires forfeiture. While medical stat- ute is silent remedy on the for a violation of the pleading requirements, generally, the remedy against a earlier, As noted the answer and affirmative defenses were filed on 8, 2000, May more than two months before the of limitations expired. Mich 745 Dissenting by J. Kelly, defend” in an plead who to or otherwise
party “fail[s] 2.603(A)(1). remedy action default. MCR But this is he afforded defendants plaintiff, unavailable because of time in which to answer and also two extensions to extend the time for service of the affidavit of agreed sum, defense 2000. In through May meritorious of the time party stipulates permitted an extension filing may complain filing, for a not be heard when that extended un- period, submitted within timely.
IV CONCLUSION § Plaintiff obligation did not fulfill his under 2912b. Accordingly, the limitations was not tolled prematurely complaint. We therefore reverse the judgment of the Court of and reinstate the judgment granting summary of the trial court disposi- *10 tion to defendants. Taylor, C.J., and and Corrigan, Young, Weaver JJ., concurred.
Markman,
Kelly, J. I would affirm {dissenting). the decision of negotiated the Court of Defendants with Appeals. plain- tiff for extensions of the time in which to file their They any answer. failed to obtain of extension approval Moreover, they from the trial court. failed to file their affidavit of meritorious defense in conformance with the mandatory requirements for medical malpractice actions.
I a party requests would hold that who a late answer objection no to the expresses pleadings cannot an challenge early complaint. implicitly Defendants waived their statute of predicated limitations defense timing plaintiffs complaint. on the of BURTON V REED CITY HOSP CORP Dissenting J. Kelly, Moreover, interpretation under the Court’s of the actions, medical defen- governing malpractice statutes mandatory conform pleading dants’ failure to rendered their answer a requirements should have of limitations defense nullity. Accordingly, the statute forfeited. should be deemed which was filed before the end complaint,
Plaintiffs for medical statutory waiting period in I claims, timely respects. agree all other Court of the trial court’s dismissal with in unjust remedy light was an defendants’ prejudice conduct.
I. STANDARD OF REVIEW summary with a presented disposi- When motion for 2.116(C)(7), tion under MCR the court considers the affidavits, pleadings, documentary and other evidence. 2.116(G). case, MCR In this the facts needed to review in summary disposition defendants’ motion for are not dispute. statutory
This involves an construction. case issue Mooney High We review it de novo. Cardinal School Ass’n, 75, 80; Michigan School Athletic 437 Mich High (1991). primary goal statutory 467 NW2d The interpretation give is to effect to the intent of the Legislature. In re MCI Telecom 460 Mich Complaint, (1999). 396, 411; 596 of a provisions NW2d statute must be read the context of the entire statute in the an producing interest of harmonious whole. Macomb Co Prosecutor v Murphy,
II. BACKGROUND 25, 1998, January On the defendant doctors at the hospital performed exploratory surgery defendant on 471 Mich Dissenting Opinion Kelly, J. that, surgery, plaintiff.1 alleged during Plaintiff has cutting his they malpractice by negligently committed pancreatic common and ducts. bile In to file a for this complaint malpractice, order Michigan required plaintiff to serve with a notice of intent to sue. MCL 600.2912b. Plaintiff 18, 1999, served this notice on October well within the two-year statutory period of limitations for medical 600.5805(6). actions.2 MCL Defendants did and respond. not Plaintiffs counsel 10, February affidavit of merit on 2000. Plaintiffs days elapsed counsel asserted that 154 had since he that, filed the notice and since defendants not responded, he that he entitled believed was to file the 600.2912b(8). fact, In complaint early. MCL defendants’ failure to did entitle to file respond plaintiff not his 20, complaint until March 2000.
Rather than premature filing, comment on the defen- plaintiff they dants told intended to file an answer 7, received two extensions from him. On March defendants obtained from an extension of the time in which to answer. On the date that extension expired, through defendants obtained another extension 4,May They they 2000. told “looked for- working ward to with” him and “appreciate^ plaintiffs] cooperation.” continued ultimately
When defendants filed their answer 8,May 2000, it was not timely under either the statu- tory pleading rules for medical malpractice claims 1 Plaintiff, Burton, following proceedings Dale died in the trial Burton, personal representative estate, court. The of his Jack plaintiff. reference, “plaintiff” substituted as For ease of the term refers to the decedent. 600.5856(d). running period. This tolled the of the hmitations *12 v Reed by Dissenting Opinion Kelly, J. 600.2912e(l) and MCR rules.3 See MCL the court 2.108(A)(1). facts, by required It lacked as supporting 2.111(F). Moreover, it Michigan court rules. MCR defense, affidavit of meritorious requisite lacked the MCL 600.2912e. This affidavit by statute. required as 15, 2000, days four after May was not filed until expired. deadline mandatory ninety-one-day 600.2912e(l). limitations answer included a statute of
Defendants’ However, it not indicate the basis for defense. did On the date the defendants’ assertion of defense. filed, yet had not run. period answer was the limitations yet appeared The defense was not viable and to have boilerplate. been included in the answer as Plaintiff applicable. denied that the defense was 29, 2000, pretrial At a conference June defendants Then, on expressed pleadings. satisfaction with the 24, 2000, a motion to dis- August brought 2.116(C)(8) (C)(10), miss the claim under MCR asserting complied had not timing of MCL 600.2912b and MCL provisions challenged 600.2912d. Plaintiff defendants’ motion on grounds. Among several the reasons was that defen- had of limitations dants’ conduct waived defense.
The trial court the motion. It held that the granted in defendants’ statute of limitations defense answer problem on notice of a with his placed pleadings expiration before the of limita- tions. grant summary reversed the Court statutory that the of limi-
disposition. opined period, It by expiration granted It also after the of the second extension plaintiff.
Dissenting J. Kelly, prematurely tations had not because elapsed, and had tolled the affidavit limitations. Burton v Mich City Hosp Corp, Reed 74; App Tolling should be found occurred, reasoned, it because defendants had have not been prejudiced summary disposition because was an harsh prejudice unnecessarily remedy.
III. ANALYSIS *13 A. THE DEFENDANTS WAIVED STATUTE OF LIMITATIONS DEFENSE court, In the trial plaintiff argued that the affirma tive defense of the statute of limitations had been “ ‘[Wjaiver I agree. waived. is the “intentional relin ’ ” quishment or abandonment a right.” known Carines, People 750, 7; v 460 Mich 762 n (1999), Olano, quoting United States v 507 US 1770; 113 Ct L S 123 Ed 2d 508 It is an equitable applied judicially doctrine injustice. to avoid Roberts v Hosp, 57, 9; Mecosta Co Gen 76 n 642 NW2d (2002) (Kelly, J., dissenting). may implied by Waiver be conduct inconsistent with right. 2d, intent to assert the 28 Am Estoppel Jur Waiver, 209, § pp 612-613. The party waiving the right must have actual or constructive knowledge of Id., facts that would right. § create the pp 607-608. Here, did respond plaintiffs defendants not notice of intent to sue. plaintiff Defendants contacted only after receiving complaint. his requested Defendants 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 of at a limitations time when it was not viable. Plaintiff denied that the applicable. defense was Reed Dissenting Kelly, J. conference, satisfac- expressed pretrial At a the pleadings. tion with had not notice period
Defendants knew complaint that plaintiffs also knew They elapsed. made no they Yet of limitations. subject to a statute prematurely. had that the been mention asserted, any assert, yet and have not not then They did complaint before receiving plaintiffs from prejudice elapsed. had full notice they induced to believe Defendants Defendants, complaint. of his objection timing no to the answer, equitably file a late cannot asked twice to who Plain- early complaint.4 challenge harbor dismissal, subject to tiffs claim should not be hold that defendants’ or otherwise. I would prejudice any affirmative knowing waiver implied actions filing plain- premature that is based on the defense complaint. tiffs JURISPRUDENCE, DEPENDANTS
B. UNDER THE MAJORITY’S THE OF LIMITATIONS DEFENSE FORFEITED STATUTE that, in medical Court has held This strictly must be followed. cases, requirements pleading instance, accompany an of merit “shall” For affidavit an extension unless the obtains complaint,5 *14 600.2912d(2). to MCL pursuant from the trial court MCL Pollak,6 v this Court considered In Scarsella 600.2912d(l). an failed to include There, plaintiff neglected and of merit with his affidavit 4 pursue majority plaintiff his claim is not entitled to The contends that permitted party stipulates [to] an extension of the time because “a that filing, complain filing may when submitted not be heard to that for a However, untimely.” Ante at 756. period, that extended within untimely. claiming defendants’ answer was is not 5 600.2912d(1). 6 (2000). 547, 553; Mich 461
762 Dissenting Opinion by Kelly, J. obtain an The statutory period extension. of limitations had expired before filed the affidavit. The that, Court held because the plaintiff failed to with the mandatory requirement, he failed to com- Thus, mence the action. the filing of the complaint “ ” nullity’ ‘was a and did not toll of limita- (citation omitted). Scarsella, tions. at supra This interpretation, concluded, it necessary to effectuate “the Legislature’s clear statement that an affidavit of merit ‘shall’ be filed with the complaint. MCL 600.2912d(l).” Id. at 552.
Similarly, this Court
held
has
that “a plaintiff cannot
file suit without giving the notice required by [MCL
(1)].”
600.2912b
Warren,
Omelenchuk v City
461 Mich
567, 572; 609
(2000),
NW2d 177
overruled in
part
grounds
other
Waltz v Wyse,
(2004).
NW2d 813
The failure to file a
precludes
notice
the filing of a valid complaint. By contrast, defendants
“must
file an
provided
affidavit as
in.
. . [MCL]
2.112(L).
600.2912e ....” MCR
The Legislature has
mandated
that medical defendants
promptly respond
complaints
with an affidavit of
meritorious defense. Unlike plaintiffs,
may
not obtain “an additional
days
in which to file the
600.2912d(2)
affidavit
required.
...” See MCL
MCL 600.2912e.
that,
case,
The fact
in this
the parties
agreed
to extend the time in which to answer is of
no moment.
parties
may not rewrite
by
statutes
extrajudicial agreement. See
Harvey Harvey, Mich
193-194;
Defendants’ answer and affidavit of meritorious de- fense failed to conform to the pleading requirements. Therefore, the trial court could have concluded, follow- ing the reasoning in Scarsella and Omelenchuk, the answer was deficient. On motion plaintiff or at initiative, the court’s own defendants’ nonconforming *15 Corp City Hosp 763 Reed v Dissenting Opinion by J. Kelly, 2.115(B). If MCR stricken. then have been answer could entitled to have been occurred, would plaintiff this 2.603(A)(1). Kowalski v See MCR by default. judgment (2001). 156; 502 Fiutowski, Mich 635 NW2d App 247 defendants’ to strike However, did not move plaintiff Nevertheless, judgment. for a default answer or defense of limitations that a statute require rules court it is responsive pleading, in the first be asserted 2.116(D)(2). the failure to Forfeiture is MCR forfeited. Products & Con- Quality right. a known timely assert Precision, 362, 379; 666 Inc, Mich cepts Nagel Co NW2d consistently applied of Scarsella were reasoning
If the 600.2912e(l) 600.2912d(2), it to MCL as was to MCL nullity deemed a because would be defendants’ answer statutory satisfy mandatory failed to the statute of Thus, assuming that even requirements. at defense a viable affirmative limitations defense was deemed raised, the defense would be the time it was forfeited. clear Legislature’s effectuate “the holding
This would after the exception, that without statement”7 affidavit of requisite a and the has filed days.” In filed merit, an shall be “within answer be defense shall addition, an affidavit of meritorious 600.2912e(l). Here, defen- days.” “91 within defense Their of limitations dants did neither. deemed forfeited. should be PREJUDICE CLAIM WITH
C. DISMISSING PLAINTIFF’S UNDERMINES THE THE INTENT OF LEGISLATURE suits for medical provision The notice for his provide sound basis requires [7] Scarsella, supra at 552. Dissenting Opinion by Kelly, J. 600.2912b(4).8 Legislature
claim. MCL enacted these requirements discourage frivolous lawsuits and *16 only allow meritorious claims to proceed. Legislature presuit The also imposed requirement a of malpractice. defendants accused medical Defen- dants the their provide must basis for defense to the 600.2912b(7).9 alleged malpractice. MCL 8 given professional facility The a notice to health health or under this following: section shall contain a statement of of at least all the
(a) The factual basis for the claim. (b) applicable practice alleged by The standard or of care the claimant. (c) in applicable The manner which it is claimed that the practice by standard profes- of or care was the breached health facility. sional or health (d) alleged The action that should have been taken to achieve compliance alleged practice with the standard of or care. (e) alleged in The manner which it is the breach of the standard practice proximate injury of or was the of care cause claimed in the notice. (f) professionals The of all names health and health facilities notifying the claimant is under this in section relation to the claim. 9 days receipt section, Within 154 after of notice this under the health professional facility against or health the claim whom is made shall representative furnish to the or claimant his or her authorized a written response following: that contains statement of each
(a) The basis for factual the defense the claim. to (b) practice professional The standard of or care that the health facility applicable or health to claims be the action to and that the professional facility complied health or health with that standard. (c) by professional The in which it manner is claimed the health facility compliance applicable or health there practice standard care. 765 v Reed Dissenting Kelly, J. together are read §of 2912b these subsections When im were requirements notice apparent it is They provide settlement. also to facilitate posed investigate to mandatory period which parties with before suit negotiate a settlement claim and a pending (After Hosp Mecosta Co Gen Roberts v filed. See is (2004) Remand), Mich 684 NW2d respond fails to J., If the defendant dissenting). (Kelly, not wish to intent, indicating he does to the notice of 182-day from the excused case, settle the days. file after may suit requirement. 600.2912b(8). advantage take case, did not In this to attempt did not They notice statutory period. fact, respond did not they In negotiate a settlement. thus entitled at all. Plaintiff was notice However, he errone- days. complaint after file his *17 merit after and affidavit of filed his ously days. procedural continued to violate Defendants MCR file their answer. timely did not They rules. 2.108(A)(1). extensions Rather, they obtained two difficulty they They asserted plaintiff. from each other and records from obtaining the relevant They did their answer. prepare more time to needed as the court from the trial court an extension not seek 2.108(E). failed to Defendants also rules allow. MCR of meritorious mandatory affidavit timely file their ultimately When defendants defense. MCL 600.2912e. limitations de- answered, a statute of they included fense. (d) professional or health the health The manner in which profes- negligence alleged the health
facility contends that facility proximate cause of the not or health sional damage. alleged injury alleged claimant’s Dissenting by Kelly, J. As the Court of noted: procedural “Statutes of limitation are devices intended to promote judicial economy rights of and the defendants. For instance, they protect defendants and the courts from hav- ing to for may deal with cases which the truth search be seriously impaired by They prevent the loss of evidence. also sleeping rights; delays from their a who bringing profits unsuspecting an action over an defendant prepare long who must defense after the event from which [Burton, supra 83, quoting the action Stephens arose.” at (1995).] Dixon, Defendants asserted limitations de fense inducing plaintiff after to that they believe had no quarrel timing complaint. of his Defendants to themselves failed procedural require ments. Allowing prevail defendants to here frustrates the purposes requirements, nothing does to deter claims, stale does discourage not litiga frivolous Rather, tion. it precludes valid suits from proceeding on merits, their encourages ambush, trial and discour ages cooperation between the It parties.10 unjustly pe nalizes the injured innocent negligent and allows tort feasors to responsibility avoid for their actions through gamesmanship.
Although, pursuant to MCL 600.2912b(l), plaintiff should not have been suit, allowed to commence his reasoning decision, today’s any Under deviation from mandatory statutory summary disposition. may deadline risks Parties required object any requested now be likely to accommodation. This is frequency future, cooperation diminish the of settlement. In like by plaintiffs may legal malpractice counsel even constitute it if voids *18 an otherwise valid claim or defense. 11Indeed, not, extensions, timely defendants could after two file an Despite defendants, affidavit of defense. meritorious the misfeasance of majority selectively apply invoking has chosen the statute in lieu of equitable justice play. ensure doctrines that and fair Hosp Corp City Reed J. Dissenting Kelly, disposition. summary not entitled are of waiver constitutes conduct that defendants’ Given defense, limitations dismissal the statute Legislature’s contrary intent and complaint to the goals court rules. of the relevant CONCLUSION IV slept disagree their who have that defendants I rights the affirmative entitled to raise case are as in this I hold limitations. would statute of defense of the then forfeited here waived the defendants defense. plaintiffs not toll the does hold that
To the intent of undermines of hmitations promote Legislature. of meritori- resolution It does not discourage It frivolous claims. not It does ous claims. encourages gamesmanship. properly the trial reversed
The Court summary disposition grant I defendants. for court’s the case and remand claim would reinstate the merits. for trial on J., J.
CAVANAGH, KELLY, concurred