Lead
This Court convened a special panel pursuant to MCR 7.215(J) in order to resolve the conflict between the previous opinion issued in this case
I. OVERVIEW
The underlying substantive issue at the heart of the conflict concerns whether MCL 600.2301
For multiple reasons, we cannot confidently or with any measure of certainty conclude that Driver effectively overruled Zwiers. First, the Driver opinion, which was extremely thorough and detailed, never expressly mentioned Zwiers, despite the fact that Zwiers, a binding decision from this Court, specifically analyzed the interplay between Burton v Reed City Hosp Corp,
In summation, we hold that the trial court did not err by applying Zwiers in denying defendants’ motion for summary disposition.
II. APPLICABLE STATUTORY PROVISIONS
To provide some context for our discussion, we begin by reviewing the statutory provisions implicated in this matter. MCL 600.2912b(l) provides:
Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health 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.
The notice period is shortened to 154 days or to 91 days in certain circumstances that are unnecessary to discuss for purposes of this opinion. MCL 600.2912b(3) and (8). The factual setting in Zwiers, Tyra, and in this case, Furr,
In general, a medical malpractice action must be commenced within two years of when the claim accrued or within six months after the plaintiff discovered or should have discovered the claim’s existence, whichever is later. MCL 600.5838a(2); MCL 600.5805(1) and (6); Driver,
At the time notice is given in compliance with the applicable notice period under section 2912b, if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given.
“When a claimant files an NOI with time remaining on the applicable statute of limitations, that NOI tolls the statute of limitations for up to 182 days[.]” Driver,
The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.
The panels in Zwiers, Tyra, and Furr addressed the application of MCL 600.2301 relative to the prematurely filed complaints and the subsequent expiration of the period of limitations.
III. EVOLUTION OF THE PERTINENT CASELAW
In Burton,
The directive in § 2912b(l) that a person “shall not” commence a medical malpractice action until the expiration of the notice period is similar to the directive in [MCL 600.2912d(l)] that a plaintiffs 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. [Id. at 753-754 (omission in original).]
“[Dismissal is an appropriate remedy for noncompliance with the notice provisions of MCL 600.2912b and . .. when a case is dismissed, the plaintiff must still comply with the applicable statute of limitations.” Id. at 753. We emphasize that our Supreme Court in Burton did not indicate that the plaintiff presented an argument under MCL 600.2301, and the statute was not addressed by the Court in any form or fashion.
In Bush, the Supreme Court addressed the question whether a substantive defect in a timely served NOI “precludes the tolling of the statute of limitations on a plaintiffs medical malpractice claim.” Bush,
We hold that pursuant to MCL 600.5856(c), as amended by2004 PA 87 , effective April 22, 2004, when an NOI is timely, the statute of limitations is tolled despite defects contained therein. Moreover, in light of the legislative clarification of § 5856(c), we hold that the purpose of the NOI statute is better served by allowing for defects in NOIs to be addressed in light of § 2301, which permits “amendment” or “disregard” of “any error or defect” where the substantial rights of the parties are not affected, as long as the cure is in the furtherance of justice and on terms that are just. A cure is in the furtherance of justice when a party makes a good-faith attempt to comply with the content requirementsof § 2912b. [Id. at 185.]
The Bush Court, in discussing MCL 600.2301 and the statute’s references to the terms “process” and “proceeding,” observed that “[s]ervice of an NOI is clearly part of a medical malpractice ‘process’ or ‘proceeding’ in Michigan.” Id. at 176. The Court further explained that because “an NOI must be given before a medical malpractice claim can be filed, the service of an NOI is a part of a medical malpractice ‘proceeding’ ” and therefore MCL 600.2301 “applies to the NOI ‘process.’ ” Id. at 176-177. According to the Court, “the language of § 2301 goes beyond the limited concept of amendment of ‘pleadings’ and allows for curing of certain defects in any ‘process, pleading or proceeding.’ ” Id. at 176. The Court “h[e]ld that § 2301 may be employed to cure defects in an NOI,” as long as a plaintiff makes a good-faith attempt to comply with the content requirements of MCL 600.2912b(4). Id. at 177-178.
In Zwiers,
In this medical malpractice lawsuit, plaintiff appeals as of right the trial court’s order granting summary disposition in favor of defendants under MCR 2.116(C)(7). At issue is whether plaintiffs case was properly dismissed when she mistakenly filed her complaint and affidavit of merit 181 days after serving her... (NOI) on defendants, instead of commencing her action one day later or at least 182 days following service of the notice, as required by MCL 600.2912b(l). The trial court dismissed the action, ruling that the premature filing of the complaint and affidavit was ineffective to commence the action and that the period of limitations had subsequently expired. While Burton ..., standing alone, would compel us to affirm, Burton did not address or consider MCL 600.2301, which, in the furtherance of justice, permits a court to amend any process or proceeding and to disregard any error or defect in the proceedings if substantial rights are not affected. In Bush ..., our Supreme Court interpreted MCL 600.2301, determining that it was implicated and applicable with respect to compliance failures under the NOI statute, MCL 600.2912b. On the strength of MCL 600.2301 and Bush, and given plaintiffs good-faith effort to comply with the NOI statute, a failure to show that the legislative purpose behind enactment of the NOI statute was harmed or defeated, and given that defendants’ substantial rights were not affected, we reverse and remand in the “furtherance of justice.”
The Zwiers panel acknowledged “that Bush dealt with a violation or defect in regard to the NOI content requirements of § 2912b(4) and not a violation or defect in the proceedings arising out of § 2912b(l).” Zwiers,
Bush makes it abundantly clear that MCL 600.2301 is applicable to the entire NOI process and any compliance failures under the NOI statute. Bush, supra at 176-177 (service of an NOI is part of a medical malpractice proceeding and as a result “§ 2301 applies to the NOI ‘process’ ”). The Bush Court stated that § 2301 goes beyond the amendment of pleadings and reaches defects in any process, pleading, or proceeding. Id. at 176.MCL 600.2301 expressly speaks of errors or defects in the proceedings, and it cannot reasonably be disputed that the premature filing of a complaint under § 2912b(l) constitutes an error or defect in the proceedings. MCL 600.2301 also addresses the power of amendment relative to process, pleadings, and proceedings, and the concept of “process” clearly encompasses the issuance of a summons, the filing of a complaint, service of the summons and complaint on a defendant, and the overall commencement of an action that compels a defendant to respond. See MCR 2.101 et seq. [Id. at 49-50.]
The Zwiers panel did not hold that Burton was no longer good law after Bush was issued.
Two years later, the Michigan Supreme Court issued the Driver decision, addressing the issue “whether a plaintiff is entitled to amend an original. .. (NOI) when adding a nonparty defendant to a pending action pursuant to this Court’s holding in Bush . . . and MCL 600.2301 so that the amended NOI relates back to the original filing for purposes of tolling the statute of limitations.” Driver,
The Driver Court stated that “the facts at issue do not trigger application of MCL 600.2301.” Id. at 253. The Court quoted MCL 600.2301, emphasizing the introductory language providing that it applies to courts “ ‘in which any action or proceeding is pending.’ ” Driver,
By its plain language, MCL 600.2301 only applies to actions or proceedings that are pending. Here, plaintiff failed to commence an action against CCA before the six-month discovery period expired, and his claim was therefore barred by the statute of limitations. An action is not pending if it cannot be commenced.... In Bush, however, this Court explained that an NOI is part of a medical malpractice “proceeding.” The Court explained that, “[s\ince an NOI must be given before a medical malpractice claim can be filed, the service of an NOI is a part of a medical malpractice ‘proceeding.’ As a result, [MCL 600.2301] applies to the NOI ‘process.’ ” Although plaintiff gave CCA an NOI, he could not file a medical malpractice claim against CCA because the six-month discovery period had already expired. Service of the NOI on CCA could not, then, have been part of any “proceeding” against CCA because plaintiffs claim was already time-barred when he sent the NOI. A proceeding cannot be pending if it was time-barred at the outset. Therefore, MCL 600.2301 is inapplicable because there was no action or proceeding pending against CCA in this case. [Id. at 254 (citations and some quotation marks omitted; alteration and emphasis in original).]
Our Supreme Court did not stop at this point in explaining why MCL 600.2301 was inapplicable; rather, it proceeded to provide myriad additional reasons. At this stage, we shall briefly summarize the Supreme Court’s additional reasoning and discussion. First, the Court analyzed the particular facts of the case under MCL 600.2301 and found that allowing amendment of the original NOI so that the plaintiff could add CCA would affect CCA’s substantial rights and would not further justice. Driver,
Subsequently, this Court issued its opinion in Tyra, which concerned the filing of a medical malpractice complaint 112 days after notices of intent were sent to the defendants “instead of. . . 182 days or more as required by statute, MCL 600.2912b(l).” Tyra,
In Driver,490 Mich at 254 , our Supreme Court explained that “MCL 600.2301 only applies to actions or proceedings that are pending.” Although an untimely complaint cannot commence an action, the proceedings here are underway. In Driver, the plaintiffs were barred from the initial step of the proceedings of filing the notice of intent, whereas here, there is no dispute that the notice of intent was proper. The dissent apparently concludes that MCL 600.2301 cannot apply because no action was underway. We disagree: MCL 600.2301 cannot be used to create a filing out of whole cloth, but no such bootstrapping would occur here, where all the requisite documents actually exist. In any event, MCL 600.2301 merely affords plaintiff the opportunity to make an argument. We see no value in attempting, on this record, to determine whether defendants’ substantial rights would truly be invaded if they are ultimately required to address the merits of the claim instead of relying on legal technicalities to avoid doing so. As we discuss, whether amendment would further the interests of justice or prejudice defendants is a question to be put to the trial court’s discretion on remand. [Tyra,302 Mich App at 224-225 .]
The Court then engaged in an examination of the criteria in MCL 600.2301, concluding “that on the basis of both Zwiers and the purpose behind MCL 600.2301, the trial court erred by failing to at least consider the possibility of allowing plaintiff to amend her complaint and afford plaintiff the opportunity to present an argument.” Id. at 225-226. Accordingly, the Court in Tyra was of the view that the decision in Zwiers remained good law following Driver.
Finally, the Furr opinion was issued. The facts in Furr indicated that while undergoing a recommended total thyroidectomy, Susan “Furr’s left recurrent laryngeal nerve was transected[,]” and the following day it was “discovered that she had ‘bilateral true vocal cord paralysis.’ ” Furr,
IV ANALYSIS
We are called upon to determine whether our Supreme Court’s decision in Driver effectively overruled this Court’s decision in Zwiers. Resolving the issue requires examination of whether the discussion in Driver was sufficiently broad so as to definitively preclude the application of MCL 600.2301 under any circumstances entailing a Burton-type situation in which a complaint is prematurely filed in regard to the statutory notice waiting period of MCL 600.2912b.
In Sumner v Gen Motors Corp (On Remand),
“A judicial decision is said to be overruled when a later decision, rendered by the same court or by a superior court in the same system, expresses a judgment upon the same question of law directly opposite to that which was before given, thereby depriving the earlier opinion of all authority as a precedent.” [Emphasis omitted.]
The first reason offered by the Court in Driver not to extend MCL 600.2301 to allow the amendment of an original NOI to add a nonparty defendant was the absence of a pending proceeding or action as required by § 2301. Driver,
By its plain language, MCL 600.2301 only applies to actions or proceedings that are pending. Here, plaintiff failed to commence an action against CCA before the six-month discovery period expired, and his claim was therefore barred by the statute of limitations. An action is not pending if it cannot be commenced.... In Bush, however, this Court explained that an NOI is part of a medical malpractice “proceeding.” The Court explained that, “[s\ince an NOI must be given before a medical malpractice claim can be filed, the service of an NOI is a part of a medical malpractice ‘proceeding.’ As a result, [MCL 600.2301] applies to the NOI ‘process.’ ” Although plaintiff gave CCA an NOI, he could not file a medical malpractice claim against CCA because the six-month discovery period had already expired. Service of the NOI on CCA could not, then, have been part of any “proceeding” against CCA because plaintiffs claim was already time-barred when he sent the NOI. A proceeding cannot be pending if it was time-barredat the outset. Therefore, MCL 600.2301 is inapplicable because there was no action or proceeding pending against CCA in this case. [Driver, 490 Mich at 254 (citations and some quotation marks omitted; alteration in original).]
In Zwiers, Tyra, and Furr, however, the NOIs were timely served on the defendants, so while actions had not been commenced because of the premature filing of complaints and no actions were therefore pending for purposes of MCL 600.2301, proceedings had been commenced given the timely NOIs and proceedings were therefore pending. Furr,
The Driver Court next provided the following argument with respect to why MCL 600.2301 could not save the plaintiffs action:
Moreover, amendment of the original NOI to allow plaintiff to add CCA would not be for the furtherance of justice and would affect CCA’s substantial rights. Every defendant in a medical malpractice suit is entitled to a timely NOI. The legislative purpose behind the notice requirement was to provide a mechanism for promoting settlement without the need for formal litigation, reducing the cost of medical malpractice litigation, and providing compensation for meritorious medical malpractice claims that would otherwise be precluded from recovery because of litigation costs[.] Applying MCL 600.2301 in the present case would deprive CCA of its statutory right to a timely NOI followed by the appropriate notice waiting period, and CCA would be denied an opportunity to consider settlement. CCA would also be denied its right to a statute-of-limitations defense. These outcomes are plainly contrary to, and would not be in furtherance of, the Legislature’s intent in enacting MCL 600.2912b. [Driver,490 Mich at 254-255 (quotation marks and citations omitted).]
This particular paragraph is quite interesting and belies a conclusion that Zwiers was effectively overruled by Driver. It reflects the Supreme Court’s actually engaging in an examination and evaluation of the criteria in MCL 600.2301, finding that, in regard to possible amendment of the original NOI to add CCA, justice would not be furthered and CCA’s substantial rights would be affected, especially considering the expiration of the statute of limitations period before the NOI was served on CCA. The Zwiers panel also examined and evaluated the criteria in MCL 600.2301, merely coming to a different conclusion concerning the furtherance of justice and substantial rights. Zwiers,
The Driver Court, in its continuing analysis and explanation of the shortcomings of allowing application of MCL 600.2301 to save the medical malpractice action against CCA, further stated:
In addition, allowing a claimant to amend an original NOI to add nonparty defendants conflicts with the statutory requirements that govern the commencement of a medical malpractice action and tolling of the statute of limitations....
We have construed [MCL 600.2912b(l)] as containing a dual requirement: A plaintiff must (1) submit an NOI to every health professional or health facility before filing a complaint and (2) wait the applicable notice waiting period with respect to each defendant before he or she can commence an action. A plaintiff has the burden of ensuring compliance with these mandates. With regard to the requirement that a plaintiff provide every defendant an NOI during the applicable limitations period before filing a complaint, nothing in Bush eliminates this requirement. Permitting amendment to add time-barred nonparty defendants to an original NOI on the basis of Bush would render the NOI requirement meaningless and the provision pertaining to nonparty defendants, MCL 600.2912b(3), nugatory. [Driver,490 Mich at 255-256 (citations omitted).]
This passage is couched in terms of the prospect of allowing amendment of an original NOI to add a time-barred nonparty defendant, which, again, does not fit the fact pattern in Zwiers, Tyra, and Furr, where the NOIs were timely served in relation to the statute of limitations and the actions were not time-barred at the outset. The Driver Court next stated:
Nor does Bush compel the conclusion that a plaintiff can add a nonparty defendant and avoid compliance with the notice waiting period by simply amending the original NOI. As we explained in Burton, when a plaintiff fails to strictly comply with the notice waiting period under MCL 600.2912b, his or her prematurely filed complaint fails to commence an action that tolls the statute of limitations .... [T]he significance of Burton is 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 Bush altered our holding in Burton. The central issue in Bush involved the effect an NOI had on tolling when the NOI failed to comply with the content requirements of MCL 600.2912b(4). The central issue in Burton involved the effect the plaintiffs failure to comply with the notice-waiting-period requirements had on tolling. Indeed, the Bush Court repeatedly emphasizedthat the focus of MCL 600.5856(c) is compliance with the notice waiting period set forth in MCL 600.2912b. In contrast to placing doubt on the viability of Burton, this aspect of Bush aligned with Burton’s holding that a plaintiff must comply with the notice waiting period to ensure the complaint tolls the statute of limitations. [Driver, 490 Mich at 256-258 (citations omitted).]
Comparable to the other aspects of the reasoning in Driver, this passage, addressing the notice waiting period, is again framed in the context of a plaintiffs seeking to amend an original NOI to add a nonparty defendant, which, as we have emphasized, is easily distinguishable from the circumstances in Zwiers, Tyra, and Furr. It is important to accurately grasp what the plaintiff was attempting to accomplish in Driver. After a lawsuit against CCA had become time-barred, the plaintiff served an NOI for the first time on CCA and then prematurely filed an amended complaint adding CCA, with the plaintiff then seeking, under MCL 600.2301, to tie CCA to an earlier, timely NOI that only identified and had been solely served on defendants other than CCA. Driver,
Moreover, nowhere in the Driver opinion did the Court expressly state that MCL 600.2301 can never be applied in a Burton situation where a complaint was prematurely filed under MCL 600.2912b. And the Driver Court made no mention of Zwiers, even though the Zwiers panel engaged in a discussion regarding the interplay between Burton, Bush, and MCL 600.2301. Furthermore, Zwiers did not hold that Burton was overruled or altered by Bush, nor that Burton was no longer good law.
The last-quoted passage from Driver was interpreted in Furr’s lead opinion to mean that only content-based amendments are permitted under MCL 600.2301. Furr,
Under these circumstances, in which more questions than answers arise in contemplating whether the language in Driver effectively overruled Zwiers, we are simply not prepared to conclude that the Driver Court implicitly intended to overrule Zwiers, nor that it effectively did overrule Zwiers. There is an absence of clarity on the issue, and binding precedent from this Court, such as Zwiers, should not be relegated to the scrapheap of overruled opinions on the basis of speculation regarding our Supreme Court’s intent with respect to whether the precedent was overruled.
Finally, in our view, the plain and unambiguous language of MCL 600.2301 would appear to mandate a court to disregard a premature filing under MCL 600.2912b if a defendant’s substantial rights are unaffected.
In Whitman v City of Burton,
When interpreting a statute, we follow the established rules of statutory construction, the foremost of which is to discern and give effect to the intent of the Legislature. To do so, we begin by examining the most rehable evidence of that intent, the language of the statute itself. If the language of a statute is clear and unambiguous, the statute must be enforced as written and no further judicial construction is permitted. Effect should be given to every phrase, clause, and word in the statute and, whenever possible, no word should be treated as surplusage or rendered nugatory. Only when an ambiguity exists in the language of the statute is it proper for a court to go beyond the statutory text to ascertain legislative intent. [Citations omitted.]
The language in MCL 600.2301 is plain and unambiguous, providing, once again, as follows:
The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties. [Emphasis added.]
In our opinion, each of the two sentences comprising MCL 600.2301 can stand on its own. The first sentence addresses the amendment of any process, pleading, or proceeding during the pendency of an action or proceeding. The second sentence of the statute does not speak of amending an error or defect; rather, it mandates the outright disregard of any error or defect if to do so would not affect the substantial rights of the parties. See Burton,
Our construction of MCL 600.2301 is consistent with earlier Supreme Court precedent, which emphasized that the statute “ ‘aims to abolish technical errors in proceedings and to have cases disposed of as nearly as possible in accordance with the substantial rights of the parties.’ ” Gratiot Lumber & Coal Co v Lubinski,
The language in MCL 600.2301 requiring a court to disregard “any” errors or defects if no substantial rights are affected plainly and unambiguously reaches both content and noncontent errors or defects, as the term “any” is all-inclusive. See People v Lively,
The only other pertinent question that arises under the second sentence of MCL 600.2301 is whether the failure to comply with the notice-waiting-period provisions in MCL 600.2912b will always affect a medical malpractice defendant’s substantial rights, so that § 2301 can never be employed to disregard the error or defect. Generally speaking, an error or defect affects substantial rights when a party incurs prejudice. See People v Carines,
“The legislative purpose behind the notice requirement was to provide a mechanism for promoting settlement without the need for formal litigation, reducing the cost of medical malpractice litigation, and providing compensation for meritorious medical malpractice claims that would otherwise be precluded from recovery because of litigation costs . . . .” Driver,
Additionally, in the context of the second sentence of MCL 600.2301 and the fact pattern in Zwiers, a defendant is not truly deprived of a statute of limitations defense because of the error or defect, i.e., the premature filing of a medical malpractice complaint, given that the period of limitations would not yet have elapsed at the time of the defect or error. Further, it cannot reasonably be maintained that every statutory error or defect necessarily affects a party’s substantial rights; some statutory errors or defects will simply not result in any prejudice. It is necessary to examine the nature of a statutory error or defect and the legislative goal of a statute in order to determine whether a particular
v CONCLUSION
We cannot discern with any certitude whether the Driver Court effectively overruled Zwiers. It is simply unclear whether our Supreme Court intended to preclude the application of MCL 600.2301 under any circumstances entailing a Burton-type situation in which a complaint is prematurely filed in relation to the statutory notice waiting period of MCL 600.2912b. Had that been the Court’s intent, it would have been rather easy to make that pronouncement in definitive fashion. Given the absence of a reference to Zwiers in Driver, the significant distinctions in the fact patterns, Driver’s lack of a precise assessment of the role of MCL 600.2301 when a complaint is prematurely filed under MCL 600.2912b, the plain and unambiguous text of MCL 600.2301 favoring application, especially in regard to a complaint filed one day early, and considering the language in Driver suggesting the appropriateness of examining and evaluating the particular facts of a case under MCL 600.2301, we are not prepared to hold that Driver overruled Zwiers by implication. Instead, the sound legal course for this Court is to leave the issue for a future definitive decision by the Michigan Supreme Court, should the Court have the opportunity and inclination to address the matter. Accordingly, we affirm the trial court’s order denying summary disposition.
Affirmed. We decline to award taxable costs pursuant to our discretion under MCR 7.219.
Notes
The previous opinion in this case was vacated in its entirety pursuant to MCR 7.215(J)(5) in the order that convened this special panel. Furr v McLeod,
MCL 600.2301 permits a court in the furtherance of justice to amend any proceeding or process and to disregard defects or errors when substantial rights are not affected.
Hereafter, when we make reference to “Furr,” it shall pertain to the lead opinion by Presiding Judge Whitbeck and the statements and rulings therein.
We disagree with the assessment in the lead opinion in Furr that the Zwiers panel “believed that the Michigan Supreme Court’s unequivocal holding in Burton was no longer controlling law.” Furr,
The fact that the catch line heading of MCL 600.2301 only alludes to “Amendment of process or pleadings before judgment” does not alter our conclusion. The catch line heading of a statutory section “shall in no way he deemed to be a part of the section or the statute, or be used to construe the section more broadly or narrowly than the text of the section would indicate, but shall he deemed to be inserted for purposes of convenience to persons using publications of the statutes.” MCL 8.4b; see Robinson v City of Lansing,
Both the Bush and the Driver Courts accepted that the “service of an NOI is a part of a medical malpractice proceeding.” Driver,
Dissenting Opinion
(dissenting). We respectfully dissent. We would reverse the trial court’s order, for the reasons stated in the vacated lead opinion in Furr v McLeod,
Dissenting Opinion
(dissenting). I join in Judge 0’CONNELL’s dissenting opinion but write separately to point out that while I was a member of the panel that decided Zwiers v Growney,