Lisa Tyra v. Organ Procurement Agency of Michigan

498 Mich 68 TYRA vORGANPROCUREMENT AGENCY OF MICHIGAN

FURR v McLEOD 148079, 148087, Docket Argued application Nos. and 149344. on May 5, appeal July leave to 2015. Decided 2015. Tyra against Organ Lisa filed an Agency action Procurement Michigan (Organ Procurement); Cohn, M.D., Steven and William (the Hospital defendants); Beaumont Dillip Beaumont Samara Pungavan, M.D.; and Court, John Doe in the Oakland Circuit alleging malpractice medical complications after she suffered following kidney transplant. Tyra sent a notice of intent to sue (NOI) to defendants under MCL 600.2912b and filed her com- plaint days later, waiting days rather than required the 182 600.2912b(l). Pungavan and Doe were dismissed from Organ the action. Procurement and the Beaumont defendants summary disposition, moved for claiming that the action should prejudice Tyra be dismissed with prematurely because had filed complaint period her and expired the limitations had so it could Tyra argued not be refiled. that defendants had waived the notice-period affirmative responsive plead- defense because their ings put had failed to her on notice that complied she had not requirement. court, Grant, J., granted The summary Nanci J. disposition Organ in favor of Procurement and the Beaumont defendants, concluding provide that their failure to detailed facts concerning the affirmative defense did not waive the notice- prematurely complaint defense and the filed failed to toll period, of the limitations expired which had since so Tyra notice-period could not cure the refiling error complaint. Tyra appealed. Appeals, The Court of Ronayne Krause (Wilder, P.J., dissenting), reversed, JJ. holding Stephens, that the trial court had discretion under MCL 600.2301 to allow Tyra to amend complaint. date of her (2013). (Docket Organ 148079) Procurement No. and the Beau- (Docket 148087) mont defendants sought No. both leave to appeal. Supreme The argument ordered and heard oral on grant applications whether to peremptory or take other action. 497 Mich brought action Susan and William Furr medical McLeod, M.D., against Kalamazoo Circuit Court Michael Manel, others, M.D., alleging Tara B. that Susan had suffered damage during surgery. The Furrs the healthcare nerve served NOI, providers the end of with an but filed their before applicable forth in The Furr set MCL 600.2912b. summary disposition, contending that the defendants moved for by running statutory of the limitations not been tolled had filing premature complaint the and the action was now Growney, pursuant barred. The contended that to Zwiers v Furrs (2009), App Mich 38 court could 286 the invoke MCL 600.2301 premature long prejudice ignore filing, doing the as as so did not J., court, right party. Lipsey, The a substantial of a Alexander summary disposition. denied the motion The Furr defendants sought application pending, appeal. leave to the was the While Court, Naini, (2011), Supreme clarified in Driver v 490 Mich 239 (2005), City Hosp Corp, Burton Mich 745 the role of v Reed appeal, malpractice disputes. granting In lieu of leave to medical Appeals the the Court of remanded for trial court to reconsider summary disposition light of the Su- defendants’ motion for remand, preme Court’s in Burton and Driver. On decisions distin- trial court that both Driver and Burton were concluded and, Zwiers, again guishable on the basis of denied defendants’ summary disposition. application for motion for Defendants’ by appeal granted Appeals. The leave to was then Supreme opinion Judge that the lead concluded Whitbeck, opinion Appeals’ Court’s in Driver had overruled the Court of Shabahang, interpretation Mich 156 of Bush v the effects (2009), Tyra, App incor- in Zwiers that 302 Mich was and rectly that it that Zwiers contin- decided the extent concluded Judge valid that Zwiers was ued to be law. stated Whitbeck 7.215(J) only required applicable to follow MCR the Court because summary Noting Tyra disposition. and affirm denial of conflict, requested panel special to resolve he that a be convened concurring, agreed Judge was that the case the issue. Owens, by Tyra must the trial decision be controlled and that court’s correctly stated, however, Tyra He that because was affirmed. decided, Judge panel not be M. J. Kelly, a conflict should convened. agreed concurring, Tyra controlling a conflict was and that convened, analysis although disagreed panel he with the should be opinion. lead The Court of then ordered in the Tyra and special panel be to resolve conflict convened (2013). App opinions vacated. that the in Furr be C.J., panel, and and Markey, Borrello, The conflict Murphy, 498 Mich 68 JJ., dissenting), JJ. Beckering, (O’Connell, Talbot, Meter, court, concluding affirmed the decision of the trial that there language overruling McLeod, no clear in Driver Zwiers. Furr v (2014). sought The Furr defendants leave to (Docket 149344). appeal Supreme No. The Court ordered and argument grant application heard oral on whether to or take peremptory other action. 497 Mich 910 opinion by joined by In an Justice Chief Justice Markman, Young Supreme and Justices Kelly Court held: Zahra, clearly inconsistent, Driver and Zwiers are and Driver controls complaints over Zwiers. Plaintiffs’ of their before the expiration of the notice did not commence their actions or period. toll the of the limitations And MCL 600.2301 plaintiffs’ only applies cannot save actions because MCL600.2301 pending proceedings pending actions or and there never were plaintiffs’ complaints, actions in these cases because filed before period expired, the notice could not commence an action. Even assuming pending proceedings there were at the time NOIs, proceedings longer pend- filed their were no ing when the trial courts ruled on defendants’ motions for summary disposition periods expired because the limitations had proceeding pending that time and a cannot be if it is time- barred. 600.2912b(l) requires 1. MCL that the in a medical give action the defendant written notice of the plaintiffs commencing intent to sue before the action. After providing NOI, applicable this the must wait for the period, usually days, pass notice filing to before the action. normally years A claimant has two from the time his or her suit, but, 600.5856(c), claim accrues to file under MCL the running period during of the limitations is tolled the notice period. 600.5856(a), filing malprac- Under MCL the of a medical complaint required tice with the affidavit of merit after the period elapsed running has also tolls the of the limita- period. Supreme tions The Court held in Burton that a com- plaint expiration period filed before the of the notice does not toll running period. Bush, the of Supreme the limitations In the timely Court held that running NOI will toll the of the limitations even if it contains content and defects that may MCL 600.2301 be used to cure content defects in an NOI if rights parties the substantial of the are not affected and the cure justice. Zwiers, is in the furtherance of Appeals In the Court of held, relying Bush, filing day on that the of a one period expired before the notice did not affect the defendants’ rights substantial and that MCL 600.2301 could be used to Organ Tyea Driver, Supreme held the Court reinstate the case. nonparty an NOI to add is not entitled to amend that a original the amended NOI relates back to defendants so that the tolling filing purposes of limitations. Driver for of the statute filed, timely emphasized Bush an NOI must be that under applied only when an NOI held that MCL 600.2301 can be Bush requirements content under MCL fails to meet all the 600.2912b(4), only applies pending that MCL 600.2301 proceedings. altered the While Zwiers held that Bush actions or Burton, nothing holding in Bush Court’s Driver held holding in Zwiers was thus overruled altered the Court’s Burton. Therefore, cases, filing plaintiffs’ of their Driver. these periods complaints expiration not of the notice did before of the limitations commence their actions or toll plaintiffs’ periods. actions And MCL cannot save 600.2301 only applies pending actions or because MCL 600.2301 pending proceedings in these cases and there never were actions periods plaintiffs’ complaints, filed before the notice because expired, Even if the of the could not commence an action. 600.2301, “proceedings” purposes for of MCL NOIs commenced longer proceedings pending the trial courts were no when summary disposition because ruled on defendants’ motions proceed- expired by periods and a limitations had that time pending ing if it is time-barred. cannot be Tyra although defen- of held that 2. The Court grounds adequately notice- state the for their dants did not pleadings, responsive failure first defense in their Chernick, 480 Mich 910 under Auslander v was irrelevant (2007), adopted reasoning Judge Jansen’s dissent which Chernick, per unpublished opinion curiam Auslander 274079). (Docket Tyra 1,May Appeals, No. issued Court of opinion portion did not appeal the Court’s failed Accordingly, Supreme the issue was Court. brief it in the Moreover, cross-appealed appellees who have not abandoned. may favorable to them than a decision that is more not obtain holding Appeals, and under was rendered the Court might Appeals, Tyra still have defendants the Court remand, notice-period defense on prevailed affirmative on their holding Supreme defense that the decision in the but a Tyra defendants could have meant that the was waived would Therefore, notice-period defense. prevail their affirmative on appropriate use its discretion and decline for the Court to it was sufficiency Tyra affirmative defendants’ to address defenses. Appeals judgments Tyra Furr; Court of reversed in both and granting summary dispo- trial court order defendants’ motion for Tyra; sition reinstated in Furr remanded to the trial court for entry granting summary of an order defendants’ motion for disposition. joined by Justice Justices McCormack and Viviano, Bernstein, concurring part dissenting part, joined majority and opinion Furr, agreed in full as it related to that the trial correctly granted summary disposition Organ court in favor of Procurement, regard defendants, but with to the Beaumont Justice Viviano would have affirmed the Court of on grounds proceedings. alternative remanded further With respect majority’s holding, to the abandonment Justice Viviano Tyra, having ruling stated that obtained a favorable in the Court Appeals, required application was not to file an for leave to appeal press ground in order to an alternative for affirmance. Further, any holding decision that the Beaumont defendants notice-period waived the defense would not result an outcome Tyra more favorable to than that rendered the Court of Appeals given holdings that both would result in a remand to proceedings. respect the trial court for further With to the Tyra’s argument, 2.111(F)(3), merits of party under MCR must constituting state the facts an affirmative defense. An affirma- adequately reasonably tive defense apprises stated if it plaintiff of the nature of the defense such that the can responsive position. context, take Organ When read in Pro- adequately notice-period curement stated its defense when it alleged Tyra comply provisions failed to with the notice MCL 600.2912b and that the action was therefore barred. contrast, broadly the Beaumont defendants asserted the ben- Michigan’s acts, efits of tort reform which amended or added 90 statutory global allegations provide sections. Such do not rea- responsive position. sonable notice to allow a to take a alleged by Because affirmative defense the Beaumont defen- inadequate 2.111(F)(3), dants was under MCR it should have been deemed waived. Auslander—which stands for the broad proposition commencing that if a is ineffective at action, obligation the defendant has no to file affirmative analytically flawed, unsupported by defenses—is our caselaw rules, and court and should be overruled. Defendants should be plaintiffs: compliance held to the same standard as with their procedural obligations under the court rules. — — — Malpractice 1. Medical Statutes of Limitations Notice of Actions Filing — Complaint Expiration the Intent to File Claim the Before — of the Notice Period Failure to Commence the Action. 600.2912b(l) requires plaintiff malprac- in a medical MCL the give tice action the defendant written notice of the (NOI) action; commencing providing intent to sue before the after NOI, applicable period, the wait for the must usually days, action; pass filing before the a medical normally years claimant has two from the time his or suit, but, 600.5856(c), her claim accrues to file under MCL running period during of the limitations is tolled the notice 600.5856(a), period, filing and under of a medical malpractice complaint required with the affidavit of merit after elapsed running the notice has also tolls the period; complaint expiration of a limitations before of the notice does not commence the action or toll the period. of the limitations Pleadings—Amendments—Medical Actions—Disregarding 2. Malpractice Filing — — Errors and Defects Notice of Intent to File Claim —Expiration Complaint Expiration Before the of the Notice Period of the Period of Limitations. 600.2301, any proceeding

Under MCL the court in which action or any proceed- pending power process, pleading has to amend substance, proceeding, ing in the action or either form or for any justice, just, are at time furtherance of on such terms as therein, every stage judgment before is rendered and the court proceeding disregard any of the action or shall error or defect proceedings rights of the that does not affect the substantial parties; complaint MCL 600.2301 cannot be used to amend a but timely period expired filed limitations that was because the malpractice action when without the commencement of a medical expiration filed the before the of the MCL period. 600.2912b notice Granzotto, Granzotto), Mc- (by Mark PC Mark Associates, Counsman), for (by Keen & PC Richard T. and William Furr. Susan Cole, Seltzer, Neilson, PC C. (by & Garin

Lipson, Organ A. for Pro- Smyth) Thomas Ludden and Karen Agency Michigan. curement Opinion of the Court DeGrazia, Tamm, O’Connor, O’Connor, & PC (by O’Connor), for Julie McCann O’Connor and Richard M. Cohn, M.D., Beaumont Hospital. Steven and William C. Haughey Roegge (by Stephanie Smith Rice & Oleniczak) McLeod, and Paul M. Michael Hoffer M.D., M.D., Mancl, Michigan University Tara B. State Studies, Inc., Kalamazoo Center for Medical and Bor- Medical Center. gess

Amicus Curiae: Coté, Hillock, (by & PC Kimberlee A.

Willingham Nelson, Michi- Stephenson), David and Michael W. gan Defense Trial Counsel.

MARKMAN, J. At issue here is whether Zwiers v 38; (2009), Growney, App 286 Mich 778 NW2d 81 was Naini, overruled this Court in Driver v 490 Mich (2011). 239; 311 Appeals 802 NW2d The Court of held that Zwiers not overruled in Driver. Because we conclude to the we contrary, judgment reverse of in part Tyra Organ Court of both v Mich, 208; Agency Procurement 302 Mich App (2013), McLeod, NW2d 667 and Furr v 304 Mich App 677; 848 In Tyra, NW2d we reinstate the granting trial court’s order defendants’ motion for Furr, summary disposition, and we remand to the entry trial court for of an order granting defendants’ summary motion for disposition.

I. FACTS AND HISTORY

A. TYRA 9, 2007, On plaintiff, Tyra, June Lisa received a kidney transplant at defendant William Beaumont with a Hospital, kidney made available defendant Procurement Opinion Couet Organ Agency Michigan (Organ Pro- curement). allegedly Plaintiff suffered complications kidney match, because the did not constitute a proper and she now asserts that defendants should have iden- 23, 2009, tified this fact the surgery.1 April before On (NOI) sent defendants a plaintiff timely notice of intent 13, to file a medical On August action. 2009, NOI, after days sending plaintiff filed her .112 complaint against defendants. When filed her complaint, 182-day period notice set forth MCL 600.2912b(l) yet expired, 13, had not and on January 2010, Organ summary Procurement moved for dispo- sition on the basis that filed plaintiffs complaint was i.e., before the of the prematurely, expiration 182-day and the had period, limitations since expired.2 Cohn, The and Dr. Steven the trans- hospital 19, 2010, plant surgeon, joined the motion on March May 20, 2010, and on the trial court granted the that, motion. The trial court reasoned under Burton City 745; Reed Hosp Corp, NW2d (2005), the filed prematurely complaint failed to toll of limitations and by refiling could not cure the error the complaint. August On a divided Court of Appeals the grant summary disposition. Tyra, reversed 208. The Court of concluded Appeals majority had not and Driver overruled Zwiers “on basis 600.2301, purpose of both Zwiers and the behind MCL (a Pungavan nephrologist) Dillip Defendants Samara and John Doe (believed coordinator) transplant to be a were dismissed from the case. opinion the “defendants” in Docket Nos. General references Cohn, Procurement, Organ 148079 and 148087 are to Steven Hospital. William Beaumont 2 Assuming plaintiffs complaint did not toll the expired period, undisputed it is that the on Decem limitations 8, ber 2009. 498 Mich 68 Opinion at least consider the by failing erred

the trial court to amend her com- allowing plaintiff possibility re- accordingly The Court . . Id. at 226. plaint . its [to] “the trial court exercise manded to allow amend- denying by granting discretion either Id. at to MCL 600.2301 and Zwiers.” pursuant ment that “Zwiers dissented on the basis Judge 227. WILDER subsequent Court’s Supreme was undermined (WILDER, P.J., . at 231 decision in Driver . . .” Id. dissenting). (in applications) sought two separate

Defendants Court, that the Court of arguing leave to in this appeal that Zwiers remained by concluding erred argument Driver. directed that oral be valid after We for leave to applications appeal heard on defendants’ to address “whether Zwiers parties and instructed (2009), overruled Growney, 286 Mich Naini, in Driver v 490 Mich 239 this Court’s decision (2011), de- and whether the defendant’s affirmative they specifically fenses were defective because did not Tyra Organ state the for the defense.” grounds Mich, 909, 909-910 B. FURR 4, 2008, Furr April allegedly On Susan nerve at defendant during surgery suffered a severed 4, 2010, Center. On Borgess April Medical timely her William Furr3 defendants a husband sent Septem- NOI to file a medical action.4 On 2010,179 NOI, days sending ber after against plain- filed their defendants. When derivatively Plaintiff William Furr sued for loss of consortium. 1, 2010, April plaintiffs acknowledge but that it The NOI was dated actually April was not mailed until 2010. Organ Tyra 77 Opinion of the Court 182-day notice set period complaint, tiffs filed their 600.2912b(l), Tyra, yet had not as in forth in MCL 24, 2010, defendants moved for On November expired.5 that com- summary plaintiffs’ on the basis disposition i.e., of prematurely, expiration filed before was plaint 182-day and that statute period, On limitations, expired.6 had since Tyra, also as 31, 2011, 22, 2012, on after the again May January in light for reconsideration Court of remanded Appeals motion, Driver, court denied defendants’ the trial MCL 600.2301 for the proposition Zwiers citing with ignore noncompliance trial court permits 600.2912b(l) substantial when defendant’s are not rights prejudiced. 24, 2013, Appeals a divided Court of

On October McLeod, Mich Furr v affirmed trial court. panel Judge opinion, his lead In App 801 WHITBECK he have reversed the Tyra, that but for would asserted Zwiers. that Driver overruled trial court and held convening requested therefore Judge WHITBECK M. concur- Judge J. panel. a conflict-resolution KELLY, analysis, but Judge ring, disagreed WHITBECK’s convened. should be panel that a conflict agreed concurring a separate opinion, OWENS wrote Judge Tyra result, noting his own conclusion but was correctly. panel A conflict-resolution was decided 7.215(J)(5), and, to MCR pursuant convened Furr, vacated. in Furr was judgment Court’s original decision, 4-3 the Court App 801. court. the trial then affirmed panel conflict was “not majority The Furr, Mich 677. 5 Even, 1, 2010, April it is assuming sent on that the NOI had been day prematurely. least undisputed filed at one that the plaintiffs complaint Assuming did toll limitations, undisputed of limitations that the it is expired in October 2010. [July- Opinion of the Court to hold that Driver overruled prepared Zwiers Id. at The implication.” dissenting judges 706. would have reversed the on trial court the basis that Driver did overrule Zwiers. J., Id. 706-707 (O’CONNELL, J., id. dissenting); dissenting). at 707 (METER, sought Defendants appeal, arguing leave to that the panel by ruling conflict erred that Driver did not overrule Zwiers. This Court directed that oral argu- ment be heard on defendants’ application and directed the to parties address “whether Zwiers v Growney, 286 (2009), Mich 38 was overruled this Court’s (2011).” Naini, decision in Driver 239 Furr (2014). v McLeod, 497 Mich 910 Oral arguments Tyra and Furr May 5, were heard on 2015.

II. STANDARD OF REVIEW This Court reviews de novo decisions on motions for summary disposition. IBM v Treasury Dep’t, 496 Mich (2014). 642, 647; 852 NW2d 865 This Court also reviews de novo statutory issues of interpretation. Id.

III. ANALYSIS A. BACKGROUND 600.2912b(l) MCL requires that the plaintiff in a medical malpractice give action the defendant written notice of the intent to file a claim before commencing medical malpractice action against defendant. After NOI, providing the the plaintiff must applicable wait period, notice usually days, before pass can file the medical mal- 600.2912b(l) practice action.7 MCL provides: pertinent period may The days be shortened even 91 under 600.2912b(3) (8). not circumstances relevant here. See MCL It is Tyba Organ Opinion the Court section, person provided in this

Except as otherwise malprac- alleging medical commence an action shall not facility against professional or health unless a health tice person professional or health given has the health less facility than notice under section written [Emphasis days is commenced. before the action added.] normally action, a claimant

“In a medical the time his claim accrues years has two from MCL Driver, 249, citing 490 Mich at a suit.” commence 600.5805(1) 600.5838a(2) However, and MCL running two-year 600.5856(c), the under MCL the notice during period. of limitations is tolled period 600.5856(a), of a addition, under of merit after required affidavit with the also tolls elapsed has provides, per- MCL 600.5856 limitations.8 part: tinent any are in of repose or tolled

The statutes of limitations following the circumstances:

(a) filed, copy complaint if a of the the is At the time complaint served on the defendant and are summons supreme the court rules. time forth in within the set complaints plaintiffs their undisputed in these two cases filed that the pertinent periods. expiration notice the the of before 600.2912d(l) malprac plaintiff in medical provides that the MCL In complaint merit.. ..” the an affidavit of file with tice action “shall (2000), Pollak, 547, 549-550; 607 NW2d Scarsella that an affidavit “[u]se ‘shall’ indicates of the word held that imperative,” mandatory there complaint accompanying is the required of complaint the affidavit tendering without of "the mere fore the com and “because commence the lawsuit” is to merit insufficient to commence plaint was insufficient an affidavit without (Quotation action, period limitation.” not of malpractice it did toll omitted.) marks and citation 498 Mich 68 Opinion of the Court (c) given compliance theAt time notice is with the period applicable 2912b, if during notice under section be claim would barred the statute of repose; case, limitations or but in this the statute is tolled days longer equal than the number to the number of days remaining applicable in the after the given. date notice is 600.2301,

Finally, general a statute of applicabil- ity, provides: any proceeding pending,

The court in which action or power any process, pleading has proceeding amend or proceeding, substance, such or action either in or form for justice, just, any on such terms as are furtherance of judgment time before every rendered therein. The court at stage proceeding or disregard any action shall error proceedings defect which do not affect the rights parties. substantial [Emphasis added.] Burton, 471 Mich at this Court held that “[a] filed before the expiration of the notice period violates MCL 600.2912b and is ineffective to toll the limitations period,” id. at because “the failure comply statutory requirement renders the complaint insufficient action,” commence the id. at 754, because MCL 600.2912b “unequivocally provides that a person ‘shall not’ an commence action alleging medical against a health professional or health facility until expiration statutory notice period,” id. at 752. Burton further held that “dismissal is an appropriate remedy noncompliance with the notice provisions MCL 600.2912b and that dismissed, when a case is must still comply with the applicable statute limitations.” Id. Therefore, at 753. if the statute of limitations has already expired, the case must be dismissed with prejudice. 81 v Opinion the of 562-564; Ctr, 558,

In Mich Borgess Med Boodt (2008), held that “a this Court NW2d he or she files a an action before cannot commence re- intent that contains all the information notice of 600.2912b(4)],” and accordingly, under quired [MCL of and the affidavit merit “the the file the yet [because not authorized to information] not all could required NOI did contain the of limitations.” have tolled possibly 600.2301, allows Boodt further held that MCL which or proceed- “to amend any process, pleading court in the “disregard any to error defect ing” and actions and proceedings,” only applies “pending” deficient, no action the notice of intent was “because n . . .” Id. at 563 4. pending [was] . 156, 161; 772 NW2d Shabahang,

In Bush (2009), that, held under the 2004 this Court 600.5856, timely, MCL “if an NOI is amendments of is defects contained despite statute of limitations tolled “may further held that MCL 600.2301 therein.” Bush at cure an NOI.” Id. 177.9 be defects employed for amendment and MCL 600.2301 “allows Specifically, the substantial error or defect’ where disregard ‘any and the cure is are not affected rights parties “A Id. at 161. cure justice.” the furtherance of good-faith party makes justice furtherance of when requirements content with the attempt comply Id. at 185. 600.2912b].” [MCL Appeals, Court of Zwiers, 600.2301, “[u]nder held that on Bush MCL relying Boodt, Bush did not Although result than reached different Bush explained by addressed the fact that while Bush Boodt. This is overrule 600.5856, by 2004 PA interpretation amended proper as it interpretation as existed proper of the statute Boodt involved by 2004 PA 87. it was amended before Mich 498 68 Opinion Court complaint the circumstances of case in this which inadvertently day early 182-day was filed one on a waiting period and in which no one was harmed or prejudiced by premature filing, simply it would injustice deprive any plaintiff op- constitute an portunity examined to have the merits of her case Therefore, addressed a court of law.” court granting reversed the trial court’s order the defen- summary disposition, dants’ motion for “reinstated” malpractice suit, medical and “remanded proceedings opinion.” for further consistent with this Id. at 52-53.10 subsequent appli-

This Court denied the defendants’ appeal. Growney, cation for leave to Zwiers v 486 Mich justices Three would have reversed the Court for the reasons in stated the dissent- ing statement in Ctr, Ellout v Detroit Med (2010). Zwiers, 486 Mich (MARKMAN, J., at 1058 dissenting). Ellout involved the identical issue and was day on decided the same as Zwiers. The dissent in Ellout stated: inapplicable

Bush is here because it involved the intent, of a notice while this case involves the defective filing of a complaint period expired. before the notice MCL inapplicable only 600.2301 is also here it applies because actions, “pending” “pending” and there was no action timely complaint here because a had never been As filed. 600.2912b(l) Burton, recognized this Court in unam- 10Zwiers, “[a]lthough application 286 Mich stated that require summary Burton alone would us to affirm the dismissal of plaintiffs case, Burton, bar, opposed the Court as case at presented argument 600.2301,” “[g]iven not with an under MCL that Burton did not address MCL 600.2301 and that Bush has shed new light statute,” on MCL 600.2301 and its on the “[w]e effect NOI cannot blindly follow if Burton MCL 600.2301 and Bush demand a different did, outcome.” Zwiers then concluded that MCL 600.2301 and Bush fact, demand a different outcome. Opinion of the Court

biguously person “shall not commence an states expired. plain- the notice has Because action” until she tiff was authorized to commence this action when not and, commenced, complaint, no has filed the action been thus, explained pending action. As there is no (2008), Ctr, Borgess Boodt Med if a complies to file a of intent that fails statutory requirements, autho- complaint. rized to file a

Furthermore, allowing plaintiff to file period expired affect before the notice has would defen- rights deprive it them of dants’ substantial because would days clearly notice that the statute the or 182 of entitles them to. overruled, and, thus, Boodt not been

Burton and have law; clearly of not good are still and the Court did Therefore, I would reverse the follow Burton and Boodt. (Markman, J., [.Ellout, Appeals. Mich at 1059 Court of added).] (emphasis dissenting) 243, we that “a Driver, plaintiff 490 Mich at held an NOI to add original not to amend is entitled the amended NOI relates defendants so that nonparty tolling of original filing purposes to the back “[t]he of . . . .”Driver explained statute limitations all an fails to meet majority Bush held that when NOI 600.2912b(4), under MCL requirements the content of to allows amend NOI plaintiff MCL 600.2301 to failed make tolling unless the preserve 600.2912b(4).” to with MCL comply effort good-faith held that “the Accordingly, at 252-253. Driver Id. timely could yet NOI holding in Bush a defective apply does not simply of limitations toll statute never nonparty [the defendant] CCA here because Id. at 253. defective, NOI.” timely, albeit received a Burton, Driver ex- effect of Bush on Concerning the plained: Opinion of

Nothing holding our Bush altered in Burton. The central issue in Bush involved effect an had on NOI tolling comply when the NOI with content failed 600.2912b(4). requirements of MCL The issue in central comply Burton involved the effect the failure notice-waiting-period requirements with the had on toll- Indeed, ing. repeatedly emphasized the Bush Court 600.5856(c) compliance of is the focus MCL with the notice waiting set forth in MCL 600.2912b. In contrast to viability Burton, placing aspect doubt on the aligned holding Bush that a Burton’s must waiting comply with the notice to ensure the [Id. tolls statute limitations. at 257-258 (citations omitted).] also Driver held that “MCL 600.2301 inapplicable because there proceeding was no action or pending against “plaintiffs CCA” because the claim was al- ready NOI”; time-barred when he sent and “[a]n commenced,” action if pending is not it cannot be “[b]y plain its language, only applies 600.2301 actions proceedings that are Id. at pending.” omitted). (quotation marks and Finally, citation Driver noted that “amendment the original NOI to allow plaintiff to add CCA would be ‘for the furtherance ” justice’ and would affect CCA’s rights,’ ‘substantial because it would CCA of “deprive statutory right its to timely NOI by followed the appropriate notice wait- ing period” and “CCA would also be its right denied a statute-of-limitations defense.” Id. at (quo- 254-255 omitted). tation marks and citations In Tyra, 302 Mich at 220-221, Court App Appeals reluctantly on this relied Court’s decision in Burton, held that “a medical com- plaint filed prior expiration to the of the MCL waiting 600.2912b does not commence the ac- tion and does not toll the of the limitations 600.5856(a).” period pursuant to MCL The majority Opinion of the Court recognized has not been overturned” and that “Burton recently “citing Supreme Burton, Court our strictly comply fails to reaffirmed that ‘when waiting period 600.2912b, under MCL with the notice complaint prematurely filed fails to com- his or her ” mence an action that tolls the statute of limitations.’ Tyra, MichApp quoting Driver, 490 Mich at at 256. relying Appeals opinion

However, on the ultimately distinguishing Driver, the Court Zwiers and may permitted Tyra plaintiff to amend held that the be Specifically, her under MCL 600.2301. “[i]n distinguishable Court held that Driver is because step from the initial Driver, the were barred filing proceedings intent, whereas ofthe the notice dispute of intent was here, there is no that the notice proper” used and that “MCL600.2301 cannot be while cloth,... create a out of whole no such boot- requisite strapping here, all the would occur where actually Tyra, 224. documents exist.” Relying 600.2301, the Court of Zwiers and MCL on Appeals court for it to “examine remanded to the trial good seeking party amendment lacked whether party opposing will amendment faith and whether the prejudice a lesser that cannot be remedied suffer Id. at 226. than dismissal.” sanction relying Burton and dissent, on The Court of “significantly believing that Zwiers was Driver and Supreme later decision Court’s undermined our “plaintiffs complaint cannot be Driver,” concludedthat Mich App Tyra, MCL600.2301.” resurrected under dissenting). The dissent ex (WILDER, P.J., at 230 plained: expired commencement without

[T]he limitations plaintiffs com- malpractice action because a medical 498 Mich 68 Opinion of the Court prematurely. plaint [a]n was filed Since action is not "pending” “commenced,” [or not] if it cannot be was there pending was no action in the trial court to which MCL retroactively applied. Moreover, 600.2301 could be retro- application active of MCL 600.2301 would affect defen- rights dant’s substantial because defendant would be right defense,” "denied its to a statute-of-limitations which contrary to, of, plainly and not in furtherance Legislature’s enacting [Id. intent in at 600.2912b. (quotation omitted; marks and citations alterations in original).] Furr,

In 303 Mich App Court of originally held that although the Furr filed their complaint before the end of the 182-day notice period, they could amend their prematurely filed com- plaint. opinion, however, his lead Judge WHITBECK only reached that result because he concluded the Court was by Tyra. Judge bound WHITBECK asserted Tyra was wrongly decided and called for a conflict- 7.215(J). panel. resolution See MCR Specifically, Judge WHITBECK believed that Driver overruled Zwiers be- cause Driver held that “a plaintiff may only invoke MCL 600.2301 to correct a defective content require- ment the notice of intent.” Id. at 809 (opinion by J.). WHITBECK, decision,

In a split the conflict panel held that Driver did Furr, not overrule Zwiers. 680. It further held that Driver is distinguishable from Zwiers, Tyra, and Furr because in Driver the plaintiffs claim was already time-barred NOI, when he sent the Zwiers, “[i]n but Tyra, 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 purposes 600.2301, of MCL proceedings had been commenced given timely NOIs and pro Opinion the Court “MCL 600.2301 therefore ceedings pending,” were ” ‘action or Id. at 694. pending proceeding.’ of a speaks Driver cannot inter The conflict held that be panel amendments only to mean that content-based preted are under MCL 600.2301 because permitted any amend process, 600.2301 a court to “empowers ” [.]’ in form or substance ‘either pleading, proceeding (alteration origi in 699, Id. at MCL 600.2301 quoting nal). that were judges they The indicated dissenting in WHITBECK’s Judge for the reasons stated dissenting in dissenting opinion vacated in Furr and opinion (O’CONNELL,J., Judge dissenting). Id. at 706-707 Tyra. a although indicated that he was separately METER Zwiers, of the that decided he believed panel member (METER,J., at 707 that Driver overruled Zwiers.11 Id. dissenting).

B. AFFIRMATIVEDEFENSES 910, parties we asked the Tyra, In 497 Mich at defenses defendants’ affirmative address “whether the did not state they specifically defective because were held Appeals The Court of for the defense.” grounds did not adequately defendants although Tyra of plain- affirmative defense for the grounds state did period, with the comply tiffs failure to remand, granted Zwiers, the defendants’ the trial court on holding Supreme Court summary disposition, motion for Appeal’s in Zwiers. The Court the Court of decision overruled engaged analysis this “[t]he held that reversed the trial court and presented in applicable situation to the factual Court in Zwiers is still per Growney,unpublished opinion curiam appeal.” v the instant Zwiers (Docket 312133), p No. 3. Appeals, June the Court of issued stated, concurring opinion “If not for Judge in which he a Riordan wrote granting decision, order the trial court’s I would affirm the Furr J., summary disposition defendants.” Id. in favor of the (Riordan, currently appeal pending application concurring), p for leave to 1. An 149815). (Docket No. in this Court in Zwiers 498 Mich 68 Opinion of the Court

not matter because this Court held Auslander v (2007),12 Chemick, 480 Mich that a fail- comply ure to with the notice remains available irrespective as a defense of whether the defendant adequately grounds stated the for the defense. Al- though appealed Tyra defendants different portion Appeals’ opinion, of the Court of the Tyra plaintiff appeal portion opinion. did not Indeed, the Tyra has not even filed a brief in this Court. Because the not has briefed Tyra issue, it has been abandoned. McGraw, People (2009) 36; 131 n 771 NW2d 655 (“Failure appeal to brief an issue on constitutes aban- donment.”).Although appellee “the failure of an to file responsive may properly brief be considered to be error,” confession of substantive Smith, People (1992), appellees Mich 954 who have not cross- “may appealed not obtain a decision more to favorable by Appeals,” them than was rendered the Court of 89, 94-95; 404 Mich 273 NW2d 3 Smolen, McCardel v (1978).13See also In re MCI Telecom Complaint, 12Adopting Chemick, unpublished opinion per Auslander v curiam of (Docket 274079) Appeals, May 1, the Corut of issued No. (Jansen, J., dissenting). opinion concurring part dissenting part, In his in Justice “any holding Viviano asserts that decision that defendants waived the notice-waiting-period affirmative defense would not result in an out plaintiff by come more favorable than that rendered the Court of Appeals,” holdings “[b]oth because would result in a remand to the trial proceedings.” respectfully disagree. court for further We The Court of plaintiff opportunity remanded to afford “the to make an argument support amending date of her affidavit of merit” and to allow the trial court to “exercise its discretion granting denying pursuant either that amendment to MCL Tyra, However, 600.2301 and Zwiers.” 302 Mich at 227. the Court of Appeals recognized applicability that “the of Zwiers to the instant case unclear,” especially “plaintiffs is prematurity vastly since in this case is egregious Therefore, pursuant more than that in Zwiers.” Id. at 225. Appeals, might the remand of the Court of defendants still have Opinion of the Court (1999) 396, 432; 596 NW2d 164 Amer- (“Appellee appeal itech has neither for leave to cross on applied issue, nor offered this as an alternative argument this the favorable it received support ruling rationale to issue, itself, this is not Accordingly, properly below. Court.”); McGraw, 484 Mich at 131 n 36 before the (“[W]e appellee required do not contend that an is argument. file a to raise a waiver We cross-appeal point conclude that an should at some simply appellee And if he or she actually argument. raise waiver so, . . . choose not to raise may does not do own.”). that the argument and address the on its Given defen- Tyra Tyra has not briefed whether defenses, sufficiently their affirmative pleaded dants Auslander, need light nor the relevance of this in we here these issues and we will not do so address has abandonment of these issues because of these ill-equipped left us to address merits Sys Retirement Wayne Employees issues. See Co 36, 41; Co, Charter 859 NW2d Wayne (2014) (stating county’s “[t]he abandonment ill to address equipped issue on . . has left us appeal. issue).14 the merits” of the notice-waiting-period prevailed affirmative defense. But on their based defense, defen hold that defendants waived this

if this Court were to Therefore, prevail this basis. a decision would not be able to on dants would, fact, holding result in an the defense that defendants waived than that rendered the Court more favorable to outcome Appeals. granting Although oral correct that our orders Justice Viviano parties argument applications to address whether on the directed sufficiently pleaded “[a]t oral their affirmative defenses defendants may supple parties argument,” “[t]he file our orders also stated supple for the filed a . ...” And while counsel mental briefs Furr, supplemental file a brief in the same counsel did not mental brief Tyra except that Tyra. cases are identical The issues in these sufficieney-of-the-pleading-of-the-affirmative- additionally involves is, merit that the substantive issue. That while counsel believed defense 498 MICH Opinion of the Court

C. ZWIERSOVERRULED Furr, 909-910, Mich at and Tyra, both 910, directed the to address parties Mich at this Court whether Zwiers was overruled Driver. We hold in this Zwiers was so overruled. As discussed earlier Zwiers, held that Bush opinion, and MCL 600.2301 can be used to save a medical never commenced malpractice action before the statute limitations when the expired waiting was filed before the of the NOI expiration it abundantly because “Bush makes clear that MCL 600.2301 to the entire NOI applicable process any failures under the NOI compliance statute.” added.) However, Driver, 490 Mich at 258 (Emphasis repeatedly recognized n held that “Bush that [an] filed,”15 timely only NOI must be that Bush held that brief, worthy supplemental of the affirmative defense was an issue of a apparently procedural-pleading did he believe the issue was simi Further, larly worthy. although plaintiffs counsel did raise the latter argument, arguments issue at oral he did not raise the raised in Justice analysis. Finally, thoughtful recognizes, as Justice Viviano’s VIVIANO overrule, Auslander, causing decision he would does not seem to be authorization, “despite purported [its] “chaos”because defendants con by filing tinue to follow our court rules and statutes answers words, recog affirmative defenses.” In other it seems most defendants continuing sufficiently defenses, pleaded nize that to file affirmative so, compelled prudent even if not to do remains the most course of reasons, proper, action. For all these we do not believe this is the or necessary, time to consider whether should Auslander be overruled. To clear, although possess authority issue, make we to address this as appeal, we do most other issues before us on we choose to exercise our by failing discretion not to do so in this case to because file brief response applications appeal, cross-appeal, leave defendants’ for brief, supplemental argument anything even raise oral resem bling arguments Tyra plaintiff, raised Justice in our Viviano, judgment, ill-equipped has left us to address the issue at this time and appears particular urgency there to be no address issue. (“[T]he See, example, Bush, statute, 484 Mich at 161 current 600.5856(c)], question tolling [MCL makes clear that whether 91 Opinion of the Court MCL 600.2301 can be “when an NOI fails to applied meet all of the content under MCL requirements 252, 600.2912b(4),” id. at and that MCL 600.2301 only actions or id. at 264. applies pending proceedings, Driver and Zwiers are inconsistent with one clearly another, and Driver People controls over Zwiers. See (1987) (“An Mitchell, 364, 369; 428 Mich 408 NW2d 798 decisis, elemental tenet of jurisprudence, our stare that a the provides majority justices decision of of of courts.”). this Court is binding upon lower While Zwiers held that Bush altered our in holding Burton,16 Driver, 257, expressly 490 Mich at held that altered our “[n]othing holding Bush Burton.”17 As (“[I]f NOI.”); applies is determined the timeliness of the id. an NOI is (“[T]he timely, .”); the statute of limitations is tolled . .. id. at 169 focus 600.5856(c)] unquestionably compliance [MCL the of new is limited to (“[I]f ”); ‘applicable period.’ complies with the notice id. applicable commencing malpractice notice before a medical (“[A] action, tolled.”); the statute of limitations id. at 170 comply only period.”); applicable NOI must with the notice id. at 172 (“The 600.2912b(l)] plain language [MCL mandates that a filing shall not commence an action for medical without (“If NOI.”); timely ultimately id. at 184 a court determines that the defective, response plaintiffs complaint [defendant’s] [if is not filed 154 days, days may untimely.”). NOI] rather than 182 after the be deemed Zwiers, App 46, (stating, blindly See at “We cannot outcome,” followBurton if MCL 600.2301 and Bush demand a different concluding required); that a different outcome was id. at (“WhileBurton, alone, affirm,” standing compel “[p]ursuant would us to Court, interpretation by re to MCL 600.2301 and its the Bush we (citation omitted). ..”) verse .. addition, Zwiers, held that while affected, rights implicated “defendants’ substantial were not and thus disregarded prema there would be no harm if a court corrected or merit,” Driver, filing complaint affidavit of 490 Mich at ture of the 254-255, present “[a]pplying held that MCL 600.2301 in the case would deprive statutory right timely NOI CCA of its to a followed appropriate waiting period” its and CCA “would also be denied defense,” right applying and thus to a statute-of-limitations justice’ affect 600.2301 “would not be ‘for the furtherance of and would 498 Mich 68 Opinion the Court discussed, held that already Burton waiting of the NOI expiration before the running commence an action or toll the period does not Therefore, of limitations. the instant (as Zwiers), of their plaintiffs’ filing well as in cases expiration waiting before the NOI complaints their actions or toll period did not commence limitations And MCL 600.2301 period. MCL 600.2301 plaintiffs’ cannot save actions because and pending proceedings actions or only applies actions in these cases. Plain- pending there never were the waiting period tiffs’ filed before NOI complaints, an action. could not commence expired, addition, that assuming even a NOI does consti- held, and, tute of a as Bush accord- part “proceeding,” at the time ingly, pending proceedings that there were NOIs, their the no proceedings filed were when the trial courts ruled on defen- longer pending summary disposition dants’ motions for because the had that time. “A periods expired pro- limitations cannot be if it was time-barred . . . .” ceeding pending Driver, result, 490 Mich at 254. As a MCL 600.2301 is inapplicable.

Moreover, ignoring the defects these cases would justice” not be “for the furtherance of and would affect defendants’ MCL 600.2301. That rights.” “substantial is, 255, just Driver, as in 490 Mich at “[a]pplying in the present deprive case[s] [defen- 600.2301 would statutory right timely dants] [their] to a NOI fol- lowed the appropriate waiting period,” a they right [their] “would also be denied to statute-of- Therefore, if limitations defense.” even MCL 600.2301 ” omitted.) (Quotation rights.’ CCA’s‘substantial marks citations yet example This is smother of the inconsistencies between Zwiers and Driver. Tyea Organ Opinion of having applicable as here,

was it should not be viewed been satisfied.

Finally, plaintiffs argue under MCL 600.5856(a), which states that the statute of limita complaint “[a]t filed,” tions tolled the time the is running periods of the limitations in these cases was though complaints filed, tolled once were even complaints prematurely. However, were ar filed this gument repeatedly rejected by this has been Court. 552; First, Pollak, in Scarsella v (2000), complaint filed NW2d 711 we held that running not without an affidavit of merit does toll contrary period inter of the limitations pretation because Legislature’s clear state “would undo ment an filed with the affidavit merit ‘shall’be (Citation omitted.) complaint.” Burton, Later, complaint we held that a filed before the expiration not toll the of the notice does running period. Boodt, limitations And argument rejected 562-564, when we Mich at held filed after the of defec does toll the tive NOI explained: Boodt, limitations. As the [P]laintiff failed file a notice of intent that satisfied 600.2912b(4)(e)], thus, and, plain- requirements [MCL yet complaint a and an not to file tiff was authorized filing complaint Therefore, of merit. affidavit yet not merit was and the affidavit of period possibly not have authorized to file could tolled of limitations. argue be over- that these decisions should

Plaintiffs they are inconsistent with MCL ruled because “[a] is 600.1901, civil action com- which states by filing complaint This a with the court.” menced concurring specificargument in a state- addressed by Opinion Viviano, J. ment order denying plaintiffs Court’s mo- Ctr, rehearing Borgess tion for in Boodt v Med Mich 1001 As was stated: specific statutory provisions [M]ore control over more general statutory provisions, specific thus re- and 600.2912b(l)] quirements regarding [MCL “commenc- ing] malpractice” alleging prevail an action medical over general requirements regarding of MCL 600.1901 commencing [Boodt, of civil actions. 482 Mich at 1002 (third (MARKMAN, J., concurring) original).] alteration in a civil Although generally action commenced filing a complaint, only medical action can be timely commenced and filing NOI then and an affidavit of merit after the applicable expired, has before but expired. limitations has Because did not wait applicable until the notice period expired they before filed their and complaints merit, they affidavits did against commence actions defendants. Because the statute has expired, limitations since com- plaintiffs’ plaints must be dismissed with prejudice.

rv. CONCLUSION reasons, For these we reverse Court of Appeals part both In Tyra, cases. we reinstate the trial granting court’s order defendants’ motion for summary Furr, disposition, and in we remand to the trial court entry for of an order granting defendants’ motion summary disposition. YOUNG, C.J., JJ., Kelly, Zahra, and concurred J. MARKMAN,

VIVIANO, J. (concurring part dissenting in forward, Two part). steps one back. That is I step how Agency Tyra Organ 95 v Procurement by Opinion Viviano, J. today’s Although it satisfacto- would describe decision. appeals, the first in these Court rily resolves issue compelling threshold leaves unresolved inexplicably in v Procure- plaintiff Tyra Organ issue raised Mich: held to Agency procedural ment if she to be of More requirements, specifically, so should defendants. trial court that defendants plaintiff1 argued affir- notice-waiting-period waived the MCL 600.2912b plead failed to they adequately mative defense because 2.111(F)(3). it The of found Appeals under MCR Court it in this that argument, merit but determined Chernick, (2007), 480 Mich 910 bound Auslander defendants in medi- relieving an order from this Court affirmative de- pleading cal cases from that failed to complaints comply fenses response Procure- statutory prerequisites. Mich, 208, 211-220; Agency ment initially requesting argu- oral NW2d After III(B) issue, holds in Part ment on this the Court now “abandoned” this majority opinion I from this of the Court’s argument. part dissent I the merits of claim opinion. would address inadequate defendants’ affirmative defenses were 2.111(F)(3) and, in doing, reject MCR so would under exempted are from argument they defendants’ defense under Aus- 2912b affirmative pleading § lander.

I. ISSUE ABANDONMENT her holds that “abandoned” majority The failed to argument affirmative defense because she decision and this appeal aspect Tyra, opinion “plaintiff’ are Lisa References Organ to the to “defendants” are references Cohn, Hospital. Michigan, and William Beaumont Steven Mich 68 Opinion by Viviano, J. file failed to an answer to defendants’ for applications leave are appeal. true, to Both but irrelevant no to certainly reason for the Court take a on pass this issue.

First, plaintiffs failure to file a is a red cross-appeal herring. Having obtained a favorable in the decision Court Appeals, plaintiff required—under is not threat separate of “abandonment”—to file a application to press order an alternative for affirmance. ground Co, v Wayne 41; Middlebrooks n (1994) (“A NW2d 774 cross appeal necessary was not to ”). urge an ‘alternative for ground Contrary affirmance.’ majority’s to the implication, any decision holding that defendants waived the notice-waiting-period affirma- tive defense would not result in an outcome more plaintiff favorable to by than that rendered the Court of Both Appeals. would in a to holdings result remand trial court for further proceedings.

Second, plaintiffs failure to file written answer to defendants’ applications is irrelevant. Our orders this specifically stated, case “We direct the Clerk to schedule oral on argument whether to grant appli- cation or take other action. At oral argument, parties shall . . . address whether the [defendants’] affirmative defenses were they defective because did not specifically grounds state the for the Tyra defense.” v Organ Agency Mich, Procurement 856 NW2d (2014) (citation added). omitted; emphasis Plaintiff did exactly requested what was her by this Court: argument counsel attended oral on defen- dants’ applications and argued that defendants’ affir- mative defenses inadequate were and that Auslander incorrectly decided. It is a perversity of the “aban- donment” doctrine to avoid a preserved issue argued at the time and place directed Opinion Viviano, J. circumstances, has primed Court. these for us address the issue.2 sufficiently appellate pump ADEQUACY AFFIRMATIVEDEFENSES II. OF DEFENDANTS’ affirmative de- Plaintiff that defendants’ argues her on notice that she inadequate put fenses were re- notice-waiting-period failed to comply Michigan’s pleading of MCL 600.2912b. quirement 2.111. With respect is codified in MCR standard 2.111(F)(3) defenses, pro- affirmative MCR pleading constituting” facts that “a must state the party vides defense is ad- defense. An affirmative an affirmative 2.111(F)(3) reasonably as as it long under MCR equate the defense such of the nature of apprises Hanon responsive position. the can take a plaintiff that (1980); Barber, 851, 856; 866 v 298 NW2d App 255; 83 Heathcott, NW2d Ewing defense must be an affirmative differently, Put the give plaintiff detail to in sufficient factual stated the defendant issues that fair notice of defensive litigation. will raise in the mind, and to turning standard in

With this case, defendant alleged affirmative defenses (OPA) Affir- of Michigan’s Organ No. 11 stated: mative Defense provisions comply with the notice 11. Plaintiff failed to 600.2912b; that Plaintiffs MSA 27A.2912b and of MCL says, plaintiff’s true, majority to failure if as the Even it were issue, ill-equipped response to address this has left us file a written applica granting simple defendants’ a enter an order there is solution: question. parties least then require briefs on this At to file tions majority. analogous See one on to the relied this case would be Co, Wayne Sys Mich 983 Wayne Employees Charter Co Retirement (2014) argument hearing (granting appeal oral on leave to after application), ante 89. cited Mich 68 Opinion by Viviano, J. barred; gives

action is thus Defendant notice that it will summary disposition. move for certainly This defense could have been more factu- ally precise.3 persuaded However, I am was that it specific enough satisfy pleading to standard of 2.111(F)(3). alleged MCR Affirmative No. 11 Defense comply provi- failed to with the “notice” Generally speaking, § sions of 2912b. there are two ways comply in which a can fail to with the timing requirements § notice or 2912b: content. specifically referring Here, it was clear that was OPA timing very because, defense, to in the next affirmative alleged deficiency. OPA a content Affirmative Defense alleged, failing 12No. “Plaintiff’sclaims are barred for provide adequate to information in her Notice ofIntent required by as MCL 600.2912b.” OPA’sAffirmative Defense No. when read in the context of the content-deficiency next, raised defense sufficient apprise plaintiff timing requirement § and, 2912b was not satisfied thus, was sufficient to permit plaintiff responsive position. take See (“The primary Hanon, 99 Mich at 856 function of give pleading the nature of the claim permit party opposite defense sufficient to to take responsive position.”) (quotation marks and citations omitted). would, therefore, I hold that OPA’s affirma- 2.111(F)(3).4 adequate tive defense was under MCR In contrast to OPA’s defense, affirmative the affir- alleged mative defense Cohn, defendants Steven 3 instance, case, companion McLeod, For in the Furr v Furr alleged, days defendants serving “Plaintiffs failed to wait 182 after their of Notice Intent before of suit contravention MCL 600.2912b.” 4 coming opposite opining In to the conclusion and that the affirmative “pertained itself, period,” defense notice as distinct from the notice Tyra, 302 at Mich of Court overlooked OPA alleged separate pertaining affirmative defense to the notice itself. Tyea Organ 99 Opinion Viviano, J. M.D., Hospital (collectively, and Beaumont William defendants) Their inadequate. was plainly Beaumont 4 Affirmative Defense No. stated: necessary, 4. If assert all of the benefits Defendants Michigan’s Reform provisions set forth in tort Acts 1986, 1993, regarding caps, non-economic off- 1995 value, sets, present offsets collateral reduction to etc., any insurance, security, payments, such as social damage applicable by Michi- other reduction deemed gan Appellate interpretation Courts in of these statutes. In the Beaumont defendants alleging everything, Transue, nothing all. See Dacon v 441 alleged at four 315, 330; Together, NW2d tort reform acts cited the Beaumont defendants See PA statutory amended or added 90 sections. 78; PA PA 249; 161; 1995 PA 178. Global like this do not reasonable allegations provide her how, why, to what extent his or It does not indicate cause action is barred. 600.2912b—indeed, under MCL nature of the defense this, it is fails mention the statute all. Given it respon for a to take a virtually impossible as that set allegation to such a broad position sive reason, For in Affirmative Defense No. 4.5 this forth was affirmative defense the Beaumont defendants’ 2.111(F)(3) and be under MCR should inadequate deemed waived. argue

The defendants Beaumont court’s grant affirm the trial should nevertheless because, favor under our disposition their summary to raise Auslander, they obligated decision in were fact, argument their at oral whether affirmative when asked notice, put plaintiff Beau on counsel for the defense was sufficient to conceded, “no, it not.” mont defendants 498 Mich 68 Opinion by Viviano, J. place.6Indeed, the affirmative in the first defense Appeals poised Court of was to hold that defendants stopped defenses, their waived reversing affirmative but short of the trial court it our because was bound obligation order Auslander. Under no similar incorrectly Court, follow decided cases from this seeing logicjustifying no Auslander, basis law or I reject argument would defendants’ and overrule Aus- lander. THE

III. VALIDITYOFAUSLANDER malprac- In Auslander, this Court held that medical obligation plead tice defendants have no affirmative response defenses comply to a that failed to statutory prerequisites. Our decision con- adopting unpublished sisted Court of dissenting opinion, part: which stated in relevant “I required conclude that defendants never were to raise plead or their asserted defenses in the first instance because this medical action never properly unpub- commenced.” Chernick, Auslander v opinion per Appeals, lished curiam of the Court of (Docket 274079) May 1, issued No. (JANSEN, J., dissenting), p 1. Any begin discussion Auslander should with a description actually exception of what it is: an to the general Michigan, general rule. In rule is that responsive affirmative defenses must be raised in the granted claim Defendants also trial court a constructive However, amendment of their affirmative defenses. as the Court of Appeals pointed out, there is no indication that the trial court or parties any Tyra, believed such constructive amendment occurred. Accepting argument 302 Mich at 217. under these circum improperly usurp discretionary authority stances would trial court’s grant pleading justice requires.” leave to amend a “when so MCR 2.118(A)(2). Opinion J. Viviano, (“Affir- 2.111(F)(3) MCR they are waived. pleading party’s be in a responsive mative defenses must stated 377, 389; Nadell, . . .”); Walters pleading. (2008). An defense” is a 751 NW2d 431 “affirmative on the defense that does not refute the case deny to the merits, but which otherwise seeks to relief plaintiffs prima for reasons unrelated to the Hosp, case. v Campbell facie See St John 616; Asserting noncompliance 455 NW2d 695 any statutory precondition—does with 2912b—or § that is entitled to by alleging that not just a or her to with comply relief based on his failure Therefore, must prerequisite. defense procedural plain under the pleaded responsive pleading be in a 2.111(F)(3). rules. MCR language our court that if a proposition Auslander stands for broad action, is at commencing ineffective complaint file affirmative de- obligation defendant has no fenses, or matter. The basis legal an answer that in Bur- exception holding was our for the Auslander 745; Mich NW2d Corp, v Reed City Hosp ton (2005), filed in complaint and other cases that a with does noncompliance statutory prerequisites (JANSEN, J., dissent- an action. Auslander commence Poliak, Scarsella ing), unpub op citing (2000) (“[T]he mere 547, 549-550; 607 NW2d 711 required affida- tendering of without complaint a medical [a merit to commence vit of is insufficient lawsuit.”) marks citation (quotation malpractice] omitted). holding question Burton’s dealt is effect of legal law: what substantive require- statutory of a complaint in contravention law, Burton’s And a matter substantive ment? as violates complaint answer is not unsound: 600.2912b(l) person that “a in MCL requirement 498 MlCH68 Opinion by Viviano, J. complying shall not commence an action” without waiting period with the notice cannot, as a matter of law, commence the action. logic proce-

Auslander extended Burton’s into the assumption dural realm on the that, if an action is defective as a matter of law, substantive that necessar- ily procedural obligations. relieves a defendant from its legal The basic flaw of Auslander is that it conflates procedural substantive rules of law with rules for enforcing legal those substantive standards. Under reasoning, Auslander’s circular a defendant is relieved obligation allege of its and establish that a com- plaint legally is deficient because the legally deficient.

Although may subject an action be to attack because compliance it statutory was not commenced in with a prerequisite, consequences might flow from comply prerequisite the failure to with the are not self-executing. Our decision in Simmons, Saffian (2007), recognized 8;Mich 727 NW2d 132 as much. In respond case, the defendant failed to the plaintiffs complaint, accompanied by which was a moving defective affidavit of merit. In to set aside a subsequent judgment, argued default the defendant that he could not be defaulted because, since the plaintiffs affidavit of merit defective, he never had obligation respond complaint. an rejected to to the We argument underlying premise and its that our permit statutes and court rules defendants to unilat- erally plaintiffs pleading determine whether a is ad- equate. Id. at 13. Instead, we said, “it is the court’s province sufficiency to pleadings, determine the of not citing a Id., defendant’s.” v Simmons, 267 Mich Saffian (2005) App 297, 312; 704 NW2d 722 (ZAHRA, P.J., concurring part dissenting part). in in Tyra Organ by Opinion Viviano, J. the notice- reasoning apply

The same should to 2912b, of statu- waiting-period prerequisite any § might matter. A tory for that defendant precondition mark has complaint 182-day think a filed before is ulti- filed but that determination prematurely, been legal question by a that must be resolved mately orderly trial order to facilitate resolution judge.7 issues, to court rules legal require parties these our applicable and assert affirmative complaints answer As we in defenses. said Saffian'. orderly honoring process presumption

[T]his more answer, validity pleadings, requiring an then challenge allowing the reduces defendant to affidavit uncertainty allowing chaotic that the defendant to [Also], ad decline to answer would introduce. this rule justice to vances the efficient administration because and, plaintiffs’ upon nitpick defendants allow to affidavits surely discovering imperfection, an decline to to answer leads, here, challenged judgments and as it did default to hand, hearings no such those entail. On other procedure require an hearings are if the necessitated challenge and then a motion the defendant answer judicial re approach the affidavit. This will conserve [Id. 14.][8] reason. sources and is advisable for that may given always clear-cut That determination is not days days depending rightfully or 154 on the be able to file suit after 91 600.2912b(3) and facts of the case. See MCL dicta, distinguished acknowledge Saffian, arguably be I Saffian, 477 merit and no affidavit of merit. tween a affidavit of defective that, acknowledge rejecting I further the defendant’s Mich at 13-14. said, Scarsella, Scarsella, we con we “In on our decision in reliance complaint accompanied an medical cluded that a malpractice cause of merit does a medical not ‘commence’ affidavit preclude an need not answer to action and thus defendant file (citation However, omitted; emphasis added]. this was at 13 Id. default.” say misreading in Scarsella. We did not Scarsella of our decision obligation All file an answer. defendants were relieved of their law, that, failure to held was as a substantive matter of that Scarsella along an of merit not “commence” with an affidavit does file 498 Mich 68 Opinion by Viviano, J. legal

Auslander’s uncritical extension of Burton’s procedural appreciate rule into the realm failed to procedure. example, difference between law and For the statute of limitations affirmative defense involves legal complaint determination that a was filed statutorily designated period outside a oftime for 600.5805(1) complaint. provides “[a] per- a bring son shall not or maintain an action . . . unless . . . periods the action is commenced within the of time 5805(1) prescribed by language § this section.” The 2912b(l) (and § malpractice pro- similar medical visions) materially prohibits are identical—each party bringing from an action unless certain conditions By logic, complaint are satisfied. Auslander’s filed expiration after the of the statute of limitations is “commencing” ineffective at and, therefore, action obligation defendants should have no to assert the statute of limitations affirmative Yet, defense at all. required caselaw, court rule and defendants are raise the statute of limitations defense in their first responsive pleading or else it is waived. See MCR 2.111(F)(3)(a);Walters, 481 Mich at 389.

By deviating accepted requiring from the rule of properly plead prove legal defendants to defects in plaintiffs filing, essentially Auslander elevates com- pliance statutory prerequisites to the echelon of action or toll Scarsella, of limitations. See (“We that, Mich at 549 therefore conclude for statute of limitations purposes malpractice case, in a medical tendering the mere of a required without the affidavit of merit is insufficient to lawsuit.”) omitted). (quotation commence the marks and citation Auslander—which itself involved the failure to file an affidavit of merit—reflects an exacerbation of error. See Auslander Saffian’s (Jansen, J., dissenting), unpub op 1, citing Scarsella, 461 Mich at Thus, 549-550. to the misreading extent Auslander is based on the same committed, of Scarsella that the it is based on a misin Saffian terpretation of our caselaw. Tyka Organ by Opinion J. Viviano, jurisdiction,” subject not “lack of a defense that is respect, rule. And in this raise-or-waive Auslander years ago a is in tension with our decision 40 requirement fil similar notice-of-intent-to-sue before ing jurisdictional. suit was not See Lisee v Secretary (1972). 32, 41-42; 388 Mich 199 NW2d 188 State, Appeals “[the] Indeed, held the Court has comply [p]laintiffs particular failure in case to 2912b] requirement [of § with the notice before com mencing subject- suit did not divest the circuit court of jurisdiction.” matter Hosp Neal v Corp, Oakwood Mich App 701, 708; 575 NW2d There is a fundamental between Auslander tension presuit require- and the rules that established jurisdictional ments are and that affirmative de- they pleaded fenses are waived. This must be tension must resolved in favor of established be rules, lest ensue if we invite chaos would actually Auslander’s rule were followed.As the Court put it: Saffian urges the opportunity [T]o rule defendant would create as knowingly foster the of the defendant simply ignoring a lawsuit and then limitations bypass attacking [or the affidavit of merit the default complaint], depriving plaintiff timeliness of the legitimate opportunity to a defect if attacked in an cure suffer answer or affirmative defense. A defendant would consequences postdefault if a attack on no adverse meantime, complaint] [or were affidavit successful. plaintiff’s is laid to rest as the limitation claim expires. [Saffian, 307.] at wrongly decided, I would Auslander as overrule incongruity unnecessary law. As far as stare our precedents goes, alike,” are if “not all built decisis 277; 487 Mich 795 NW2d Carrier, McCormick v (2010) dissenting), J., then Auslander’s (MArkman, 498 Mich Opinion by Viviano, J. foundation is weaker than most. It was an order briefing argument; entered without the benefit of reasoning adopting unpub- its short, consisted of dissenting opinion Appeals; lished of the Court of proposition unsupported by any it announced was authority. juris- Moreover, citation of Auslander is a prudential incompatible water, fish out of with the legal including: exists, environment within which it 2.111(F)(3); 2.603(A)(1); MCR MCR Neal, 226 Mich App 708; Lisee, at 41-42; Walters, 388 Mich at 481 Mich 389; at 13. It is a testament to its Saffian, practical unworkability and lack of reliance interests despite purported that, Auslander’s authorization, de- fendants continue to follow our court rules and stat- by filing utes answers and affirmative defenses. See 464; 613 NW2d 307 Detroit, Robinson v (2000) (stating that two relevant considerations under the doctrine of stare decisis are: “whether the decision ‘practical workability,’ [and] at issue defies whether hardship”). reliance interests would work an undue by Furthermore, Auslander has been undermined 2.112(L)(2)(a), requiring 2010 amendment ofMCR challenges “all to a notice of intent to sue ... be made pursuant motion, filed 2.119, to MCR at the time the response complaint, defendant files its first to the [.]” whether answer or motion See Robinson, (stating Mich at 464 that another relevant consider- ation under the doctrine of stare decisis is “whether changes longer justify in the law or facts no decision”). questioned contrary A decision so to the jurisprudential only tide as Auslander can hold on so long gives way Today before it to the undertow. opportunity formally Court missed an unmoor Aus- give lander it the ceremonial burial at sea that it deserves. Procurement Opinion by Viviano, J.

IV.CONCLUSION simple, yet symmetrical, case, I craft a In this would strictly to the will be held rule of law: Plaintiffs statutory waiting-period requirement; too, defen- so required put plaintiffs on notice dants will be their affirmative defenses. other factual basis of same standard words, I hold defendants to the would procedural plaintiffs: compliance with their we hold agree obligations I do not under our rules. Because sidestep majority’s issue, I decision to with the respectfully III(B) majority dissent from Part opinion.9 Bernstein, JJ., concurred

McCormack Viviano, J. join majority opinion it to Furr. I Specifically,I in full as relates summary disposition correctly granted agree also that the trial court However, Agency. Organ as it relates to the

favor of defendants, Appeals on alterna I would affirm the Court of Beaumont proceedings with this grounds further consistent tive and remand for opinion.

Case Details

Case Name: Lisa Tyra v. Organ Procurement Agency of Michigan

Court Name: Michigan Supreme Court

Date Published: Jul 22, 2015

Citation: 869 N.W.2d 213

Docket Number: Docket 148079, 148087, and 149344

Court Abbreviation: Mich.