Lead Opinion
At issue here is whether Zwiers v Growney, 286 Mich App 38; 778 NW2d 81 (2009), was overruled by this Court in Driver v Naini, 490 Mich 239; 802 NW2d 311 (2011). The Court of Appeals held that Zwiers was not overruled in Driver. Because we conclude to the contrary, we reverse the judgment of the Court of Appeals in part in both Tyra v Organ Procurement Agency of Mich, 302 Mich App 208; 850 NW2d 667 (2013), and Furr v McLeod, 304 Mich App 677; 848 NW2d 465 (2014). In Tyra, we reinstate the trial court’s order granting defendants’ motion for summary disposition, and in Furr, we remand to the trial court for entry of an order granting defendants’ motion for summary disposition.
I. FACTS AND HISTORY
A. TYRA
On June 9, 2007, plaintiff, Lisa Tyra, received a kidney transplant at defendant William Beaumont Hospital, with a kidney made available by defendant
On August 15, 2013, a divided Court of Appeals reversed the grant of summary disposition. Tyra, 302 Mich App 208. The Court of Appeals majority concluded that Driver had not overruled Zwiers and “on the basis of both Zwiers and the purpose behind MCL 600.2301,
Defendants (in two separate applications) sought leave to appeal in this Court, arguing that the Court of Appeals erred by concluding that Zwiers remained valid after Driver. We directed that oral argument be heard on defendants’ applications for leave to appeal and instructed the parties to address “whether Zwiers v Growney, 286 Mich App 38 (2009), was overruled by this Court’s decision in Driver v Naini, 490 Mich 239 (2011), and whether the defendant’s affirmative defenses were defective because they did not specifically state the grounds for the defense.” Tyra v Organ Procurement Agency of Mich, 497 Mich 909, 909-910 (2014).
B. FURR
On April 4, 2008, plaintiff Susan Furr allegedly suffered a severed nerve during surgery at defendant Borgess Medical Center. On April 4, 2010, plaintiff and her husband William Furr
On October 24, 2013, a divided Court of Appeals panel affirmed the trial court. Furr v McLeod, 303 Mich App 801 (2013). In his lead opinion, Judge WHITBECK asserted that but for Tyra, he would have reversed the trial court and held that Driver overruled Zwiers. Judge WHITBECK therefore requested the convening of a conflict-resolution panel. Judge M. J. KELLY, concurring, disagreed with Judge WHITBECK’s analysis, but agreed that a conflict panel should be convened. Judge OWENS wrote a separate opinion, concurring in the result, but noting his own conclusion that Tyra was decided correctly. A conflict-resolution panel was convened and, pursuant to MCR 7.215(J)(5), the Court’s original judgment in Furr was vacated. Furr, 303 Mich App 801. In a 4-3 decision, the Court of Appeals conflict panel then affirmed the trial court. Furr, 304 Mich App 677. The Court majority was “not
Defendants sought leave to appeal, arguing that the conflict panel erred by ruling that Driver did not overrule Zwiers. This Court directed that oral argument be heard on defendants’ application and directed the parties to address “whether Zwiers v Growney, 286 Mich App 38 (2009), was overruled by this Court’s decision in Driver v Naini, 490 Mich 239 (2011).” Furr v McLeod, 497 Mich 910 (2014). Oral arguments in Tyra and Furr were heard on May 5, 2015.
II. STANDARD OF REVIEW
This Court reviews de novo decisions on motions for summary disposition. IBM v Treasury Dep’t, 496 Mich 642, 647; 852 NW2d 865 (2014). This Court also reviews de novo issues of statutory interpretation. Id.
III. ANALYSIS
A. BACKGROUND
MCL 600.2912b(l) requires that the plaintiff in a medical malpractice action give the defendant written notice of the plaintiffs intent to file a claim before commencing a medical malpractice action against the defendant. After providing the NOI, the plaintiff must wait for the applicable notice period, usually 182 days, to pass before the plaintiff can file the medical malpractice action.
*79 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. [Emphasis added.]
“In a medical malpractice action, a claimant normally has two years from the time his claim accrues to commence a suit.” Driver, 490 Mich at 249, citing MCL 600.5838a(2) and MCL 600.5805(1) and (6). However, under MCL 600.5856(c), the running of the two-year period of limitations is tolled during the notice period. In addition, under MCL 600.5856(a), the filing of a complaint with the required affidavit of merit after the notice period has elapsed also tolls the running of the period of limitations.
The statutes of limitations or repose are tolled in any of the following circumstances:
(a) At the time the complaint is filed, if a copy of the summons and complaint are served on the defendant within the time set forth in the supreme court rules.
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*80 (c) 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.
Finally, MCL 600.2301, a statute of general applicability, provides:
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 Burton, 471 Mich at 745, this Court held that “[a] complaint filed before the expiration of the notice period violates MCL 600.2912b and is ineffective to toll the limitations period,” id. at 747, because “the failure to comply with the statutory requirement renders the complaint insufficient to commence the action,” id. at 754, because MCL 600.2912b “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,” id. at 752. Burton further held 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.” Id. at 753. Therefore, if the statute of limitations has already expired, the case must be dismissed with prejudice.
In Bush v Shabahang, 484 Mich 156, 161; 772 NW2d 272 (2009), this Court held that, under the 2004 amendments of MCL 600.5856, “if an NOI is timely, the statute of limitations is tolled despite defects contained therein.” Bush further held that MCL 600.2301 “may be employed to cure defects in an NOI.” Id. at 177.
In Zwiers, 286 Mich App at 52, the Court of Appeals, relying on Bush and MCL 600.2301, held that “[u]nder
This Court denied the defendants’ subsequent application for leave to appeal. Zwiers v Growney, 486 Mich 1058 (2010). Three justices would have reversed the Court of Appeals for the reasons stated in the dissenting statement in Ellout v Detroit Med Ctr, 486 Mich 1058 (2010). Zwiers, 486 Mich at 1058 (MARKMAN, J., dissenting). Ellout involved the identical issue and was decided on the same day as Zwiers. The dissent in Ellout stated:
Bush is inapplicable here because it involved the filing of a defective notice of intent, while this case involves the filing of a complaint before the notice period expired. MCL 600.2301 is also inapplicable here because it only applies to “pending” actions, and there was no “pending” action here because a timely complaint had never been filed. As this Court recognized in Burton, MCL 600.2912b(l) unam*83 biguously states that a person “shall not commence an action” until the notice period has expired. Because plaintiff was not authorized to commence this action when she filed the complaint, no action has been commenced, and, thus, there is no pending action. As this Court explained in Boodt v Borgess Med Ctr, 481 Mich 558, 564 (2008), if a plaintiff fails to file a notice of intent that complies with the statutory requirements, that plaintiff is not authorized to file a complaint.
Furthermore, allowing plaintiff to file a complaint before the notice period has expired would affect defendants’ substantial rights because it would deprive them of the 154 or 182 days of notice that the statute clearly entitles them to.
Burton and Boodt have not been overruled, and, thus, are still good law; and the Court of Appeals clearly did not follow Burton and Boodt. Therefore, I would reverse the Court of Appeals. [.Ellout, 486 Mich at 1059 (Markman, J., dissenting) (emphasis added).]
In Driver, 490 Mich at 243, we held that “a plaintiff is not entitled to amend an original NOI to add nonparty defendants so that the amended NOI relates back to the original filing for purposes of tolling the statute of limitations . . . .” Driver explained that “[t]he Bush majority held that when an NOI fails to meet all of the content requirements under MCL 600.2912b(4), MCL 600.2301 allows a plaintiff to amend the NOI and preserve tolling unless the plaintiff failed to make a good-faith effort to comply with MCL 600.2912b(4).” Id. at 252-253. Accordingly, Driver held that “the holding in Bush that a defective yet timely NOI could toll the statute of limitations simply does not apply here because CCA [the nonparty defendant] never received a timely, albeit defective, NOI.” Id. at 253. Concerning the effect of Bush on Burton, Driver explained:
*84 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 emphasized that 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. [Id. at 257-258 (citations omitted).]
Driver also held that “MCL 600.2301 is inapplicable because there was no action or proceeding pending against CCA” because the “plaintiffs claim was already time-barred when he sent the NOI”; and “[a]n action is not pending if it cannot be commenced,” and “[b]y its plain language, MCL 600.2301 only applies to actions or proceedings that are pending.” Id. at 254 (quotation marks and citation omitted). Finally, Driver noted that “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,’ ” because it would “deprive CCA of its statutory right to a timely NOI followed by the appropriate notice waiting period” and “CCA would also be denied its right to a statute-of-limitations defense.” Id. at 254-255 (quotation marks and citations omitted).
In Tyra, 302 Mich App at 220-221, the Court of Appeals reluctantly relied on this Court’s decision in Burton, and held that “a medical malpractice complaint filed prior to the expiration of the MCL 600.2912b waiting period does not commence the action and does not toll the running of the limitations period pursuant to MCL 600.5856(a).” The majority
However, relying on the Court of Appeals opinion in Zwiers and distinguishing Driver, the Court ultimately held that the Tyra plaintiff may be permitted to amend her complaint under MCL 600.2301. Specifically, the Court held that Driver is distinguishable because “[i]n 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” and that while “MCL 600.2301 cannot be used to create a filing out of whole cloth,... no such bootstrapping would occur here, where all the requisite documents actually exist.” Tyra, 302 Mich App at 224. Relying on Zwiers and MCL 600.2301, the Court of Appeals remanded to the trial court for it to “examine whether the party seeking amendment lacked good faith and whether the party opposing amendment will suffer prejudice that cannot be remedied by a lesser sanction than dismissal.” Id. at 226.
The Court of Appeals dissent, relying on Burton and Driver and believing that Zwiers was “significantly undermined by our Supreme Court’s later decision in Driver,” concluded that “plaintiffs complaint cannot be resurrected under MCL 600.2301.” Tyra, 302 Mich App at 230 (WILDER, P.J., dissenting). The dissent explained:
[T]he limitations period expired without commencement of a medical malpractice action because plaintiffs com*86 plaint was filed prematurely. Since [a]n action is not "pending” if it cannot be [or was not] “commenced,” there was no action pending in the trial court to which MCL 600.2301 could be retroactively applied. Moreover, retroactive application of MCL 600.2301 would affect defendant’s substantial rights because defendant would be "denied its right to a statute-of-limitations defense,” which is plainly contrary to, and not in furtherance of, the Legislature’s intent in enacting MCL 600.2912b. [Id. at 230 (quotation marks and citations omitted; alterations in original).]
In Furr, 303 Mich App 801, the Court of Appeals originally held that although the Furr plaintiffs filed their complaint before the end of the 182-day notice period, they could amend their prematurely filed complaint. In his lead opinion, however, Judge WHITBECK only reached that result because he concluded the Court was bound by Tyra. Judge WHITBECK asserted that Tyra was wrongly decided and called for a conflict-resolution panel. See MCR 7.215(J). Specifically, Judge WHITBECK believed that Driver overruled Zwiers because Driver held that “a plaintiff may only invoke MCL 600.2301 to correct a defective content requirement in the notice of intent.” Id. at 809 (opinion by WHITBECK, J.).
In a split decision, the conflict panel held that Driver did not overrule Zwiers. Furr, 304 Mich App at 680. It further held that Driver is distinguishable from Zwiers, Tyra, and Furr because in Driver the plaintiffs claim was already time-barred when he sent the NOI, but “[i]n 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 pro
B. AFFIRMATIVE DEFENSES
In Tyra, 497 Mich at 910, we asked the parties to address “whether the defendants’ affirmative defenses were defective because they did not specifically state the grounds for the defense.” The Court of Appeals held that although the Tyra defendants did not adequately state the grounds for the affirmative defense of plaintiffs failure to comply with the notice period, that did
In both Tyra, 497 Mich at 909-910, and Furr, 497 Mich at 910, this Court directed the parties to address whether Zwiers was overruled by Driver. We hold that Zwiers was so overruled. As discussed earlier in this opinion, Zwiers, 286 Mich App at 49, held that Bush and MCL 600.2301 can be used to save a medical malpractice action that was never commenced before the statute of limitations expired when the complaint was filed before the expiration of the NOI waiting period because “Bush makes it abundantly clear that MCL 600.2301 is applicable to the entire NOI process and any compliance failures under the NOI statute.” (Emphasis added.) However, Driver, 490 Mich at 258 n 68, held that “Bush repeatedly recognized that [an] NOI must be timely filed,”
While Zwiers held that Bush altered our holding in Burton,
In addition, even assuming that a NOI does constitute part of a “proceeding,” as Bush held, and, accordingly, that there were pending proceedings at the time plaintiffs filed their NOIs, the proceedings were no longer pending when the trial courts ruled on defendants’ motions for summary disposition because the limitations periods had expired by that time. “A proceeding cannot be pending if it was time-barred . . . .” Driver, 490 Mich at 254. As a result, MCL 600.2301 is inapplicable.
Moreover, ignoring the defects in these cases would not be “for the furtherance of justice” and would affect defendants’ “substantial rights.” MCL 600.2301. That is, just as in Driver, 490 Mich at 255, “[a]pplying MCL 600.2301 in the present case[s] would deprive [defendants] of [their] statutory right to a timely NOI followed by the appropriate notice waiting period,” and they “would also be denied [their] right to a statute-of-limitations defense.” Therefore, even if MCL 600.2301
Finally, plaintiffs argue that under MCL 600.5856(a), which states that the statute of limitations is tolled “[a]t the time the complaint is filed,” the running of the limitations periods in these cases was tolled once the complaints were filed, even though the complaints were filed prematurely. However, this argument has been repeatedly rejected by this Court. First, in Scarsella v Pollak, 461 Mich 547, 552; 607 NW2d 711 (2000), we held that a complaint filed without an affidavit of merit does not toll the running of the limitations period because the contrary interpretation “would undo the Legislature’s clear statement that an affidavit of merit ‘shall’ be filed with the complaint.” (Citation omitted.) Later, in Burton, 471 Mich at 747, we held that a complaint filed before the expiration of the notice period does not toll the running of the limitations period. And in Boodt, 481 Mich at 562-564, this argument was rejected when we held that a complaint filed after the filing of a defective NOI does not toll the running of the period of limitations. As Boodt, 481 Mich at 564, explained:
[P]laintiff failed to file a notice of intent that satisfied the requirements of [MCL 600.2912b(4)(e)], and, thus, plaintiff was not yet authorized to file a complaint and an affidavit of merit. Therefore, the filing of the complaint and the affidavit of merit that plaintiff was not yet authorized to file could not possibly have tolled the period of limitations.
Plaintiffs argue that these decisions should be overruled because they are inconsistent with MCL 600.1901, which states that “[a] civil action is commenced by filing a complaint with the court.” This specific argument was addressed in a concurring state
[M] ore specific statutory provisions control over more general statutory provisions, and thus the specific requirements of [MCL 600.2912b(l)] regarding “commencing] an action alleging medical malpractice” prevail over the general requirements of MCL 600.1901 regarding the commencing of civil actions. [Boodt, 482 Mich at 1002 (MARKMAN, J., concurring) (third alteration in original).]
Although a civil action is generally commenced by filing a complaint, a medical malpractice action can only be commenced by filing a timely NOI and then filing a complaint and an affidavit of merit after the applicable notice period has expired, but before the period of limitations has expired. Because plaintiffs did not wait until the applicable notice period expired before they filed their complaints and affidavits of merit, they did not commence actions against defendants. Because the statute of limitations has since expired, plaintiffs’ complaints must be dismissed with prejudice.
rv. CONCLUSION
For these reasons, we reverse the Court of Appeals in part in both cases. In Tyra, we reinstate the trial court’s order granting defendants’ motion for summary disposition, and in Furr, we remand to the trial court for entry of an order granting defendants’ motion for summary disposition.
Defendants Dillip Samara Pungavan (a nephrologist) and John Doe (believed to be a transplant coordinator) were dismissed from the case. General references in this opinion to the “defendants” in Docket Nos. 148079 and 148087 are to Organ Procurement, Steven Cohn, and William Beaumont Hospital.
Assuming that plaintiffs complaint did not toll the running of the limitations period, it is undisputed that the period expired on December 8, 2009.
Plaintiff William Furr sued derivatively for loss of consortium.
The NOI was dated April 1, 2010, but plaintiffs acknowledge that it was not actually mailed until April 4, 2010.
Even, assuming that the NOI had been sent on April 1, 2010, it is undisputed that the complaint was filed at least one day prematurely.
Assuming that plaintiffs complaint did not toll the running of the period of limitations, it is undisputed that the period of limitations expired in October 2010.
The pertinent period may be shortened to 154 or even 91 days under circumstances not relevant here. See MCL 600.2912b(3) and (8). It is
MCL 600.2912d(l) provides that the plaintiff in a medical malpractice action “shall file with the complaint an affidavit of merit.. ..” In Scarsella v Pollak, 461 Mich 547, 549-550; 607 NW2d 711 (2000), this Court held that “[u]se of the word ‘shall’ indicates that an affidavit accompanying the complaint is mandatory and imperative,” and therefore "the mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit” and “because the complaint without an affidavit was insufficient to commence plaintiffs malpractice action, it did not toll the period of limitation.” (Quotation marks and citation omitted.)
Although Bush reached a different result than Boodt, Bush did not overrule Boodt. This is explained by the fact that while Bush addressed the proper interpretation of MCL 600.5856, as amended by 2004 PA 87, Boodt involved the proper interpretation of the statute as it existed before it was amended by 2004 PA 87.
Zwiers, 286 Mich App at 46, stated that “[a]lthough application of Burton alone would require us to affirm the summary dismissal of plaintiffs case, the Court in Burton, as opposed to the case at bar, was not presented with an argument under MCL 600.2301,” and “[g]iven that Burton did not address MCL 600.2301 and that Bush has shed new light on MCL 600.2301 and its effect on the NOI statute,” “[w]e cannot blindly follow Burton if MCL 600.2301 and Bush demand a different outcome.” Zwiers then concluded that MCL 600.2301 and Bush did, in fact, demand a different outcome.
In Zwiers, on remand, the trial court granted the defendants’ motion for summary disposition, holding that the Supreme Court overruled the Court of Appeal’s decision in Zwiers. The Court of Appeals reversed the trial court and held that “[t]he analysis engaged in by this Court in Zwiers is still applicable to the factual situation presented in the instant appeal.” Zwiers v Growney, unpublished opinion per curiam of the Court of Appeals, issued June 24, 2014 (Docket No. 312133), p 3. Judge Riordan wrote a concurring opinion in which he stated, “If not for the Furr decision, I would affirm the trial court’s order granting summary disposition in favor of the defendants.” Id. (Riordan, J., concurring), p 1. An application for leave to appeal is currently pending in this Court in Zwiers (Docket No. 149815).
Adopting Auslander v Chemick, unpublished opinion per curiam of the Corut of Appeals, issued May 1, 2007 (Docket No. 274079) (Jansen, J., dissenting).
In his opinion concurring in part and dissenting in part, Justice Viviano asserts that “any decision holding that defendants waived the notice-waiting-period affirmative defense would not result in an outcome more favorable to plaintiff than that rendered by the Court of Appeals,” because “[b]oth holdings would result in a remand to the trial court for further proceedings.” We respectfully disagree. The Court of Appeals remanded to afford plaintiff “the opportunity to make an argument in support of amending the filing date of her complaint and affidavit of merit” and to allow the trial court to “exercise its discretion by either granting or denying that amendment pursuant to MCL 600.2301 and Zwiers.” Tyra, 302 Mich App at 227. However, the Court of Appeals recognized that “the applicability of Zwiers to the instant case is unclear,” especially since “plaintiffs prematurity in this case is vastly more egregious than that in Zwiers.” Id. at 225. Therefore, pursuant to the remand of the Court of Appeals, defendants might still have
Although Justice Viviano is correct that our orders granting oral argument on the applications directed the parties to address whether defendants sufficiently pleaded their affirmative defenses “[a]t oral argument,” our orders also stated that “[t]he parties may file supplemental briefs . ...” And while counsel for the plaintiffs filed a supplemental brief in Furr, the same counsel did not file a supplemental brief in Tyra. The issues in these cases are identical except that Tyra additionally involves the sufficieney-of-the-pleading-of-the-affirmative-defense issue. That is, while counsel believed that the substantive merit
See, for example, Bush, 484 Mich at 161 (“[T]he current statute, [MCL 600.5856(c)], makes clear that the question whether tolling
See Zwiers, 286 Mich App at 46, 52 (stating, “We cannot blindly follow Burton if MCL 600.2301 and Bush demand a different outcome,” and concluding that a different outcome was required); id. at 40, 52 (“While Burton, standing alone, would compel us to affirm,” “[p]ursuant to MCL 600.2301 and its interpretation by the Bush Court, we reverse .. ..”) (citation omitted).
In addition, while Zwiers, 286 Mich App at 51, held that the “defendants’ substantial rights were not implicated or affected, and thus there would be no harm if a court corrected or disregarded the premature filing of the complaint and affidavit of merit,” Driver, 490 Mich at 254-255, held that “[a]pplying 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 also be denied its right to a statute-of-limitations defense,” and thus applying MCL 600.2301 “would not be ‘for the furtherance of justice’ and would affect
Concurrence in Part
(concurring in part and dissenting in part). Two steps forward, one step back. That is how I
I. ISSUE ABANDONMENT
The majority holds that plaintiff “abandoned” her affirmative defense argument because she failed to appeal this aspect of the Court of Appeals decision and
First, plaintiffs failure to file a cross-appeal is a red herring. Having obtained a favorable decision in the Court of Appeals, plaintiff is not required—under the threat of “abandonment”—to file a separate application in order to press an alternative ground for affirmance. Middlebrooks v Wayne Co, 446 Mich 151, 166 n 41; 521 NW2d 774 (1994) (“A cross appeal was not necessary to urge an ‘alternative ground for affirmance.’ ”). Contrary to the majority’s implication, any decision holding that defendants waived the notice-waiting-period affirmative defense would not result in an outcome more favorable to plaintiff than that rendered by the Court of Appeals. Both holdings would result in a remand to the trial court for further proceedings.
Second, plaintiffs failure to file a written answer to defendants’ applications is irrelevant. Our orders in this case specifically stated, “We direct the Clerk to schedule oral argument on whether to grant the application or take other action. At oral argument, the parties shall address . . . whether the [defendants’] affirmative defenses were defective because they did not specifically state the grounds for the defense.” Tyra v Organ Procurement Agency of Mich, 856 NW2d 69, 70 (2014) (citation omitted; emphasis added). Plaintiff did exactly what was requested of her by this Court: plaintiffs counsel attended oral argument on defendants’ applications and argued that defendants’ affirmative defenses were inadequate and that Auslander was incorrectly decided. It is a perversity of the “abandonment” doctrine for this Court to avoid a preserved issue argued at the time and place directed by the
II. ADEQUACY OF DEFENDANTS’ AFFIRMATIVE DEFENSES
Plaintiff argues that defendants’ affirmative defenses were inadequate to put her on notice that she failed to comply with the notice-waiting-period requirement of MCL 600.2912b. Michigan’s pleading standard is codified in MCR 2.111. With respect to pleading affirmative defenses, MCR 2.111(F)(3) provides that “a party must state the facts constituting” an affirmative defense. An affirmative defense is adequate under MCR 2.111(F)(3) as long as it reasonably apprises the plaintiff of the nature of the defense such that the plaintiff can take a responsive position. Hanon v Barber, 99 Mich App 851, 856; 298 NW2d 866 (1980); Ewing v Heathcott, 348 Mich 250, 255; 83 NW2d 210 (1957). Put differently, an affirmative defense must be stated in sufficient factual detail to give the plaintiff fair notice of the defensive issues that the defendant will raise in the litigation.
With this standard in mind, and turning to the affirmative defenses alleged in this case, defendant Organ Procurement Agency of Michigan’s (OPA) Affirmative Defense No. 11 stated:
11. Plaintiff failed to comply with the notice provisions of MCL 600.2912b; MSA 27A.2912b and that Plaintiffs*98 action is thus barred; Defendant gives notice that it will move for summary disposition.
This defense certainly could have been more factually precise.
In contrast to OPA’s affirmative defense, the affirmative defense alleged by defendants Steven Cohn,
4. If necessary, Defendants assert all of the benefits of the provisions set forth in Michigan’s tort Reform Acts of 1986, 1993, and 1995 regarding non-economic caps, offsets, reduction to present value, offsets for collateral payments, such as insurance, social security, etc., and any other damage reduction deemed applicable by the Michigan Appellate Courts in interpretation of these statutes.
In alleging everything, the Beaumont defendants alleged nothing at all. See Dacon v Transue, 441 Mich 315, 330; 490 NW2d 369 (1992). Together, the four tort reform acts cited by the Beaumont defendants amended or added 90 statutory sections. See 1995 PA 249; 1995 PA 161; 1993 PA 78; 1986 PA 178. Global allegations like this do not provide reasonable notice to a plaintiff of how, why, or to what extent his or her cause of action is barred. It does not indicate the nature of the defense under MCL 600.2912b—indeed, it fails to mention the statute at all. Given this, it is virtually impossible for a plaintiff to take a responsive position to such a broad allegation as that set forth in Affirmative Defense No. 4.
The Beaumont defendants argue that this Court should nevertheless affirm the trial court’s grant of summary disposition in their favor because, under our decision in Auslander, they were not obligated to raise
III. THE VALIDITY OF AUSLANDER
In Auslander, this Court held that medical malpractice defendants have no obligation to plead affirmative defenses in response to a complaint that failed to comply with statutory prerequisites. Our decision consisted of adopting the unpublished Court of Appeals dissenting opinion, which stated in relevant part: “I conclude that defendants were never required to raise or plead their asserted defenses in the first instance because this medical malpractice action was never properly commenced.” Auslander v Chernick, unpublished opinion per curiam of the Court of Appeals, issued May 1, 2007 (Docket No. 274079) (JANSEN, J., dissenting), p 1.
Any discussion of Auslander should begin with a description of what it actually is: an exception to the general rule. In Michigan, the general rule is that affirmative defenses must be raised in the responsive
Auslander stands for the broad proposition that if a complaint is ineffective at commencing the action, the defendant has no obligation to file affirmative defenses, or an answer for that matter. The legal basis for the Auslander exception was our holding in Burton v Reed City Hosp Corp, 471 Mich 745; 691 NW2d 424 (2005), and other cases that a complaint filed in noncompliance with statutory prerequisites does not commence an action. Auslander (JANSEN, J., dissenting), unpub op at 1, citing Scarsella v Poliak, 461 Mich 547, 549-550; 607 NW2d 711 (2000) (“[T]he mere tendering of a complaint without the required affidavit of merit is insufficient to commence [a medical malpractice] lawsuit.”) (quotation marks and citation omitted). Burton’s holding dealt with a question of substantive law: what is the legal effect of filing a complaint in contravention of a statutory requirement? And as a matter of substantive law, Burton’s answer is not unsound: a complaint that violates the requirement in MCL 600.2912b(l) that “a person
Auslander extended Burton’s logic into the procedural realm on the assumption that, if an action is defective as a matter of substantive law, that necessarily relieves a defendant from its procedural obligations. The basic legal flaw of Auslander is that it conflates substantive rules of law with procedural rules for enforcing those substantive legal standards. Under Auslander’s circular reasoning, a defendant is relieved of its obligation to allege and establish that a complaint is legally deficient because the complaint is legally deficient.
Although an action may be subject to attack because it was not commenced in compliance with a statutory prerequisite, the consequences that might flow from the failure to comply with the prerequisite are not self-executing. Our decision in Saffian v Simmons, 477 Mich 8; 727 NW2d 132 (2007), recognized as much. In that case, the defendant failed to respond to the plaintiffs complaint, which was accompanied by a defective affidavit of merit. In moving to set aside a subsequent default judgment, the defendant argued that he could not be defaulted because, since the plaintiffs affidavit of merit was defective, he never had an obligation to respond to the complaint. We rejected this argument and its underlying premise that our statutes and court rules permit defendants to unilaterally determine whether a plaintiffs pleading is adequate. Id. at 13. Instead, we said, “it is the court’s province to determine the sufficiency of pleadings, not a defendant’s.” Id., citing Saffian v Simmons, 267 Mich App 297, 312; 704 NW2d 722 (2005) (ZAHRA, P.J., concurring in part and dissenting in part).
[T]his more orderly process of honoring the presumption of the validity of pleadings, requiring an answer, and then allowing the defendant to challenge the affidavit reduces the chaotic uncertainty that allowing the defendant to decline to answer would introduce. [Also], this rule advances the efficient administration of justice because to allow defendants to nitpick plaintiffs’ affidavits and, upon discovering an imperfection, to decline to answer surely leads, as it did here, to challenged default judgments and the hearings those entail. On the other hand, no such hearings are necessitated if the procedure is to require an answer and then a motion by the defendant to challenge the affidavit. This approach will conserve judicial resources and is advisable for that reason. [Id. at 14.][8 ]
By deviating from the accepted rule of requiring defendants to properly plead and prove legal defects in a plaintiffs filing, Auslander essentially elevates compliance with statutory prerequisites to the echelon of
There is a fundamental tension between Auslander and the established rules that presuit notice requirements are not jurisdictional and that affirmative defenses must be pleaded or they are waived. This tension must be resolved in favor of the established rules, lest we invite the chaos that would ensue if Auslander’s rule were actually followed. As the Court of Appeals in Saffian put it:
[T]o rule as defendant urges would create the opportunity for defendant to knowingly foster the running of the limitations period by ignoring a lawsuit and then simply bypass the default by attacking the affidavit of merit [or timeliness of the complaint], depriving plaintiff of the legitimate opportunity to cure a defect if attacked in an answer or affirmative defense. A defendant would suffer no adverse consequences if a postdefault attack on the affidavit [or complaint] were successful. In the meantime, a plaintiff’s claim is laid to rest as the limitation period expires. [Saffian, 267 Mich App at 307.]
I would overrule Auslander as a wrongly decided, unnecessary incongruity in our law. As far as stare decisis goes, if “not all precedents are built alike,” McCormick v Carrier, 487 Mich 180, 277; 795 NW2d 517 (2010) (MArkman, J., dissenting), then Auslander’s
In this case, I would craft a simple, yet symmetrical, rule of law: Plaintiffs will be strictly held to the statutory waiting-period requirement; so too, defendants will be required to put plaintiffs on notice of the factual basis of their affirmative defenses. In other words, I would hold defendants to the same standard we hold plaintiffs: compliance with their procedural obligations under our rules. Because I do not agree with the majority’s decision to sidestep this issue, I respectfully dissent from Part III(B) of the majority opinion.
References in this opinion to “plaintiff’ are to Lisa Tyra, and references to “defendants” are to the Organ Procurement Agency of Michigan, Steven Cohn, and William Beaumont Hospital.
Even if it were true, as the majority says, that plaintiff’s failure to file a written response has left us ill-equipped to address this issue, there is a simple solution: enter an order granting defendants’ applications and require the parties to file briefs on this question. At least then this case would be analogous to the one relied on by the majority. See Wayne Co Employees Retirement Sys v Wayne Charter Co, 495 Mich 983 (2014) (granting leave to appeal after hearing oral argument on the application), cited ante at 89.
For instance, in the companion case, Furr v McLeod, the Furr defendants alleged, “Plaintiffs failed to wait 182 days after serving their Notice of Intent before filing suit in contravention of MCL 600.2912b.”
In coming to the opposite conclusion and opining that the affirmative defense “pertained to the notice itself, as distinct from the notice period,” Tyra, 302 Mich App at 215, the Court of Appeals overlooked that OPA alleged a separate affirmative defense pertaining to the notice itself.
In fact, when asked at oral argument whether their affirmative defense was sufficient to put plaintiff on notice, counsel for the Beaumont defendants conceded, “no, it was not.”
Defendants also claim that the trial court granted a constructive amendment of their affirmative defenses. However, as the Court of Appeals pointed out, there is no indication that the trial court or the parties believed that any such constructive amendment occurred. Tyra, 302 Mich App at 217. Accepting this argument under these circumstances would improperly usurp the trial court’s discretionary authority to grant leave to amend a pleading “when justice so requires.” MCR 2.118(A)(2).
That determination is not always clear-cut given that plaintiffs may rightfully be able to file suit after 91 days or 154 days depending on the facts of the case. See MCL 600.2912b(3) and (8).
I acknowledge that Saffian, arguably in dicta, distinguished between a defective affidavit of merit and no affidavit of merit. Saffian, 477 Mich at 13-14. I further acknowledge that, in rejecting the defendant’s reliance on our decision in Scarsella, we said, “In Scarsella, we concluded that a medical malpractice complaint not accompanied by an affidavit of merit does not ‘commence’ a medical malpractice cause of action and thus the defendant need not file an answer to preclude a default.” Id. at 13 (citation omitted; emphasis added]. However, this was a misreading of our decision in Scarsella. We did not say in Scarsella that defendants were relieved of their obligation to file an answer. All that Scarsella held was that, as a substantive matter of law, failure to file a complaint along with an affidavit of merit does not “commence” an
Specifically, I join the majority opinion in full as it relates to Furr. I also agree that the trial court correctly granted summary disposition in favor of Organ Procurement Agency. However, as it relates to the Beaumont defendants, I would affirm the Court of Appeals on alternative grounds and remand for further proceedings consistent with this opinion.