*1 v Mecosta Co Gen 57 ROBERTS MECOSTACOUNTYGENERALHOSPITAL 116563, 116570, Argued 10, (Calendar Docket Nos. 116573. October 2001 5). April 24, No. Decided 2002. brought malpractice Lisa Roberts a medical action the Mecosta Cir- against County Hospital cuit Court the Mecosta General and others. court, Root, J., granted summary disposition The trial Lawrence C. inadequate for the defendants on the basis of notice of intent to file pursuant Appeals, P.J., suit to MCR 600.2912b.The Court of Sawyer, JJ., reversed, plaintiff’s finding and Gribbs and McDonald, that a noncompliance §with 2912b is waived a if defendant it raises no objection complaint. App before the of the 175 (2000) (Docket 212675). appeal. No. The defendants seek leave to opinion by Young, joined by an Justice Chief Justice Corrigan, Supreme and Justices and Court Weaver, Taylor, Markman, held: The statute of limitations in a medical action is not 600.5856(d) given compliance tolled under MCL unless notice is provisions places all the of MCL600.2912b.MCL 600.2912b complying burden of with the notice of intent on the implicate reciprocal duty part and does not on the challenge any defendant to deficiencies in the notice before the 600.5856(d) provision is filed. Because MCL is a tolling provisions negate and work to a statute of limitations defendant, defense raised the defendants did not need to plaintiff’s challenge assert the defense or with MCL 600.2912b, required by 600.5856(d), until the filed suit. Reversed and remanded. joined by Cavanagh, dissenting, Justice Kelly, Justice stated that affirmatively responded when defendants notice of they intent, reasonably expected plaintiff should have to under- they objections By stand that doing had no to its form or content. so, affirmatively any objection premised the defendants waived on may agree
that notice. A defendant to waive a statute of limitations negotiations defense to continue settlement and avoid a claim being objection filed. Because the statute of limitations in this case Mich adequacy necessarily inquiry based on an into the of the notice affirmatively intent, waived. was (by Angela Nicita), J. Nicita, & P.C. Granzotto *2 plaintiff-appellee. Gary E. Levitt for the Haughey, Roegge (by Jon D. Vander Smith, Rice & defendant-appellant County Ploeg) Gen- for Mecosta Hospital. eral
Bensinger, (by Aardema, & Cotant, Menkes P.C. defendants-appellants DesNoyers, Moyer), L. for Kerr Gynecology Big Rapids, Davis, and Obstetrics & of P.C. Company, (by & P.C. Mark A.
Bumheimer defendant-appellant Bumheimer), for Atkins. Amici Curiae: (by & P.L.C. D.
Kerr, Weber, Russell Richard Weber Swanson), Michigan and Joanne Geha for State Medi- Society. cal (by Granzotto), Nicita, & P.C. Mark and
Granzotto (by Patek), Patek, Gleicher & P.C. Barbara A. for Lawyers Michigan Trial Association. question again
Young, J. This case calls into authority courts to create terms and at of conditions mandatorily unambiguously variance with those and duty stated in a statute. We reaffirm that the of the apply courts of state is to the actual terms an this unambiguous statute. malpractice case,
In this medical the Court of defendants had concluded that waived their sufficiency ability of the notices of objections failing intent to raise their before the Gen v Mecosta Co complaint. We hold that the statute of of the 600.5856(d) tolled under MCL limitations cannot be pro- given in with all the unless notice is We further hold that MCL visions of MCL 600.2912b. places complying with the 600.2912b the burden on the and does notice of intent reciprocal duty part implicate a on the not challenge deficiencies in the notice defendant to addition, is filed. In because before the tolling provision 600.5856(d) a MCL is a provision negate relies on a a statute of lim- defendant, defense raised a defendant itations challenge does not need to assert the defense or plaintiff’s compliance 600.2912b, with MCL required by 600.5856(d), until the files Court reasons, suit. For these reverse the Appeals opinion and remand this matter for further opinion. proceedings consistent with this *3 I. AND FACTS PROCEEDINGS pregnant sought Plaintiff was and treatment pain experiencing because she was severe in her diagnosed having abdomen. was a She suffered spontaneous performed. abortion and a D & C was alleges Plaintiff it that was later discovered that she actually ectopic suffering preg-
had been from an nancy, spontaneous abortion, not a and that her left fallopian Emergency surgery per- tube had burst. was fallopian formed to remove left tube. Plain- operation, tiff claims that as a result of the second longer right she can no lopian bear children because her fal- previously had tube been removed. pursue malpractice a medical
Plaintiff decided misdiagnosed alleging claim, that defendants her con- subsequently performed unnecessary dition and an operation.
Plaintiff served a notice of intent on defendant County Hospital September Mecosta General on 19, 1996, and on the defendants on remaining September 23, 1996. Serving plaintiffs these notices constituted attempt to (1) requirements meet the notice for medi- prescribed by cal actions MCL 600.2912b toll the statute of (2) pursuant limitations to MCL 600.5856(d).
After waiting period required under MCL 600.2912b had passed, plaintiff complaint.1 filed her Thereafter, summary defendants filed motions for dis- position. Defendants argued, alia, inter claims were barred the statute of limitations because the notices of intent failed to comply with outlined in MCL Spe- 600.2912b(4).2 statute, days serving Under the a must wait 182 after complaint. 600.2912b(l). However, to file a MCL if a defendant fails to respond days, plaintiff may to the notice of intent within 154 a file com plaint immediately expiration days. and need not await the of 182 MCL 600.2912b(7), (8); City Warren, 567, 572-573, Omelenchuk v present respond Defendants in the case did not days, the notices of intent within 154 so filed a February 25, 1997, expiration Mecosta Circuit Court on before the of 182 days. 600.2912b(4) provides: given professional facility The notice to a health or health under
this section shall following: contain statement of at all least (a) The factual basis for the claim. applicable (b) practice alleged by standard of or care claimant. (c) applicable The manner in which it is claimed that the stan- *4 practice professional dard of or care was breached the health or facility.
health (d) alleged action that should have been taken to achieve alleged practice with the standard of or care. Mecosta Co Gen plaintiff’s cifically, asserted that notices defendants sufficiently care, failed to state the standard of the breached, manner in which the standard was taken, action the defendants should have and the injury. proximate cause of the Defendants advanced position that, since the notices were insufficient, period of limitation was not tolled under MCL 600.5856(d) expired. and had therefore The trial court summary granted disposition. for motions Appéals The Court of remanded, reversed and hold- ability ing that defendants had waived their to chal- lenge failure to with the notice they objec- because did not their raise complaint tions before the time the was filed: short, sandbagged, harboring alleged defendants longer error until could no correct it and the remedy prejudice. available would be dismissal with This Court cannot condone such conduct. purpose 2912b(1)
. . . behind subsection is to [T]he encourage litigation. settlement without the need for formal purpose permitted This cannot be if served defendants are alleged to sit on deficiencies the notice of intent until purpose after suit has been filed. If the of the notice requirement encourage legitimate is to settlement of claims litigation commenced, before is then claims of deficien cies in the notice need to be raised before the is filed, not after.
[*] [*] [*] (e) alleged The manner in it which the breach of the standard practice proximate injury or care was the cause of the claimed in the notice. professionals (f) The names of all health and health facilities the notifying claimant is under this section in to the claim. relation *5 62 Opinion of the Court objections any Accordingly, hold that to a notice of 2912b(1) be intent under subsection must raised before the complaint. Summary disposition filing of the based on by alleged in notice of intent not defect raised filing appropri defendant before the of the is not App 175, 184-186; (2000).] ate. Mich NW2d 610 285 [240 application granted We defendants’ for leave to appeal propriety to consider the of the Court of Appeals holding plaintiff’s noncompliance provisions by § 2912b is waived a defendant if no is raised before the of the complaint.
II.
REVIEW
STANDARD OF
statutory interpretation
Questions of
are reviewed
de novo
this Court. In
Telecom,
re MCI
(1999). Similarly,
396, 413;
III. ANALYSIS A. THE TOLLING STATUTE MANDATES WITH COMPLIANCE ALL OF MCL 600.2912b period The limitation for medical years. 600.5805(5). period actions is two This is 600.5856(d) tolled under MCL [i]f, during applicable period notice under section 2912b, a claim would be barred the statute of limitations repose, longer days equal or for not than a number of days applicable period number of in the after the given date notice is with section 2912b. [Emphasis added.] Gen Mecosta Co given “is com- language
Plaintiff
that the
argues
Legisla-
that the
with section 2912b” indicates
pliance
provisions of
2912b
delivery
§
ture intended
words, plain-
applicable
5856(d).
other
§
to be
is satis-
that,
long
2912b(2)3
as
position
§
tiffs
is tolled under
the statute
limitations
fied,
noncompliance with
notwithstanding
5856(d),
§
stat-
plain reading
On the basis of a
2912b(4).
reject this contention.
ute, we
*6
fore-
jurisprudence,
An
rule of
and the
anchoring
statutory
is that courts are
construction,
most rule of
People Wager,
v
Legislature.
to effect the intent of the
To do
118, 123,
7;
(1999).
Mich
n
professional business or residential address can be facility ascertained, may notice be mailed to the health where the care that is the basis for the claim was rendered. clearly provides Section that must 5856(d) compliant 2912b, just be with 2912b(2) not § § plaintiff contrarily Legislature contends. Had the delivery provisions intended the of 2912b to be § applicable, presume Legislature that would expressly compliance only have limited 2912b(2). to § However, Legislature did not do so. it Rather, referred to all of 2912b. §
Since the statute is clear and unambiguous, this required Court to enforce as written. 5856(d) § Stone, supra. result, As a of the statute of limitations is plaintiff only available to a if all the requirements included in 2912b are § met. STATUTE,
B. THE NOTICE OF INTENT MCL 600.2912b The Court did not decide whether trial court erred in determining notices of intent did not 2912b(4). Instead, Court concluded that defendants had waived4 their Appeals clearly colloquial The Court of used the term “waiver” in a legal meaning sense and one at odds with the established of this term. As Court, defined this “waiver” connotes an intentional abandonment of a *7 right. People Carines, 760, 762, 7; known v 460 Mich n Despite conclusory contrary, the dissent’s assertion to the there is concluding no record basis in this case for that defendants here advised anyone they intentionally abandoning right or else that were their adequacy ultimately right to contest the of notice under or 2912b their fact, to assert a statute of limitations defense to her claim. In produces a review of the record a communication between defendants’ adjusters meaning that is in direct contradiction to the of “an right.” County intentional abandonment of a known Defendant Mecosta Hospital’s adjusters expressed writing requesting General claim in a infor request any rights mation that their information “does not waive Mecosta County Hospital Company may General or the MHAInsurance have to dis pute any any validity any defects in Notice of Intent or concede the Thus, contrary such Notice.” to the dissent’s assertion that defendants representations” “voluntary made “affirmative quishment so that there was a relin right,” representations, of a known not were there no such v Co Gen Mecosta Opinion Court sufficiency
ability challenge to of the notices section, failing any under that to to defi- complaint. ciencies before the required The notice of intent for medical mal- practice statutorily actions mandated. MCL provides: 600.2912b(l) person alleging shall not commence an action medi-
[A] malpractice against professional cal a health or health facil- ity person given professional unless the has the health or facility health written notice under this section not less days [Emphasis than 182 before the action is commenced. added.] provides
Subsection 2912b(4) that “[t]he professional to a health given facility or health under this section shall contain a statement of at least” the facts, care, standard of action that should have been taken, breach, proximate cause, and the names of those notified. being phrases “shall” and “shall not” are unambigu-
ous and a mandatory, denote rather than discretion- ary People Grant, action. 535, 542; (1994). Likewise, phrase NW2d 123 “at least” specifically defendants stated one of their communications that the right challenge being Therefore, to the notice of intent was not waived. representations, addition the absence of affirmative this communi provides dissenting colleague’s cation further evidence that our assertion “reasonably that defendants’ communications led to believe that sufficient, thereby waiving any objections her notice was related to the adequacy unsupportable. of the notice” is Rather, referring “waiver,” when both the Court of and dis- appear rely concept sent on related of “forfeiture.” As defined Court, timely this a “forfeiture” is the failure to make a assertion of a right. Carines, supra. any event, explained below, simply inappropriate for the reasons it is forfeiture, to characterize defendants’ inaction as either a waiver or a impose upon duty because the statute at issue did not defendants a to. assert notice was deficient until her was filed. *8 66 Opinion of the Court plainly requirement reflects a minimal and cannot plausibly ambiguous. § be considered Because 2912b unambiguous, plain language. we must enforce its clearly place 2912b(l) (4)
Subsections the bur- complying require- den of with the notice of intent plaintiff. unambiguous ments on the A clear and stat- requires provisions ute full with its as Pipe, written. Northern Concrete Inc v Sinacola Com- panies-Midwest, Inc, 316, 320; 461 Mich 603 NW2d (1999). Accordingly, plaintiff pre- 257 fulfill must 2912b(4) § conditions of in order to maintain a medi- cal action. provide
Further, nowhere does the statute that a object defendant must to deficiencies in a notice complaint of intent before the is filed.5In the absence statutory requirement, of such a we do not have the authority impose extrastatutory to create and an duty affirmative on the defendant. Omne Financial, supra. judiciary engage The role of the is not to legislation. Tyler v Livonia Schs, Public 459 382, Mich Legislature 392-393, 10; n 590 NW2d 560 require did not that an to a notice of intent stage litigation. must be raised before a certain of the 5 suggests analysis The dissent its “waiver” is derived from the argument structure of the statute. That is undercut the fact that the provides explicit remedy respond statute an for a defendant’s failure to to provides the notice of intent. It is well settled that when a statute a rem edy, legislative remedy a court should enforce the rather than one the Savings Bank, prefers. Senters v Ottawa 45, 56; court 503 NW2d (1993). Although requires 600.2912b(7) respond the defendant intent, clearly provides remedy to the notice of subsection 8 for a is, plaintiff may defendant’s failure to do so. That commence an action days given, opposed after after notice has been to the 182 days required However, nothing otherwise under subsection 1. 2912b suggests right sufficiency that defendant waives his by failing respond notice of intent before the is filed. Mecosta Co Gen THE
C. TOLUNG MCL 600.5856 PROVISION, *9 the Court of Although incorrectly held that ability defendants had waived their to challenge the sufficiency of the notice of intent creating and inserting provision waiver into MCL 600.2912b, MCL provides 600.5856 an why additional reason waiver is inapplicable present case. plain
The language of 5856(d) clearly requires § malpractice plaintiff medical to pro- with the visions of 2912b in order to § toll the limitation period. express Absent an waiver of its right to con- test the adequacy plaintiffs notice of intent or to assert the statute of limitations as a defense, defen- dant forfeit, cannot or “waive,” those rights until the provision tolling an becomes issue. This is because a provision tolling effectively works to negate a statute of limitations defense raised a defendant. Thus, unless done expressly, only ways so in which a effectively defendant any could “waive” objections to fulfillment of the 5856(d) § would be to fail to pertinent invoke the statute of lim- itations plaintiff after a files suit or to fail object to to the adequacy of the notice of intent plaintiff after a advances as a response to a statute of limita- tions defense. words, other statute, under this defendant’s fail- respond
ure to plaintiff’s to notice does not result in a waiver of a statute of limitations defense before a suit is even filed. Accordingly, since to sought rely provision on the tolling of 5856(d) § and that sec- plainly tion requires compliance 2912b, with § defen- dants logically cannot be considered to have waived Opinion Court plaintiffs compliance right their before the of the suit. 2912b
D. THE DISSENT lynchpin repeated of the dissent is its assertion repre- that “defendants in this case made affirmative reasonably sentations that led to believe that adequate.” (empha- her of intent was Post at 75 agree affirmatively added). that, sis We if a defendant represents any objection to a that it waives expressly notice or waives its statute of representations defense, limitations binding such could be subsequent litigation under this stat- noteworthy However, ute. theory what is about the dissent’s despite repeated contrary that, is the fact *10 representation single assertions, not a cited, is much representation, by any less an defendant affirmative they acquiesced adequacy that in the of the notices plaintiff oddity filed in this case. The of the dis- analysis repre- sent’s is that it relies on the absence of sentations to a Indeed, establish waiver. the dissent is ultimately admitting reduced to that the so-called upon implied waiver it relies must be from the fact that defendants failed to include a disclaimer each requests they of the several written made of for more information. Post at 75.6 actually that, plain The dissent reasons because defendants contacted following notice, every tiff for information the issuance of her “she had triggered tolling provision reason to believe that the notice the of MCL 600.5856(d).” previously, 4, Post at 75. As noted n a reference in this concerning adequacy plaintiff’s Sep record the notice was made a 6, 1996, surely tember letter to from mha. In what must have been product lawyerly caution, of an abundance of in that letter Mecosta specifically rights and mha disclaimed waiver of to contest defects in similarly notice. The dissent a cites communication from defen adjusters dants’ insurance claim that indicates that the failure to v Co Gen Mecosta agree requires “[w]aiver
We with the dissent that a voluntary relinquishment an ‘intentional and of a ” right.’ supra. Carines, However, known Post at 72. previously discussed, 4, n no such waiver occurred simply contradictory It here. for the dissent to con- preliminary clude that the to raise an issue in failure communications to a waiver, amounts while it simul- taneously requires instructs that waiver an “inten- voluntary relinquishment.” tional and reality, relying the dissent is not on a waiver analysis, analysis. but a forfeiture As we have defined right term, a “forfeiture” is the failure to assert timely supra. in a fashion. Carines, The dissent has again concepts confused these but related, distinct, People e.g., forfeiture and See, waiver. Carter, 206, 216; Mich argument if
Even the dissent’s is viewed as a forfei- argument, unpersuasive. ture it remains This is be- necessarily requires cause a specific point that there be a forfeiture right at which the must be asserted or be considered forfeited. As noted above, 2912b does require response adequacy not Thus, notice. the first occasion that defendant must challenge adequacy required by of the notice as complaint. statute is after filed a has This duty challenge adequacy of the notice arises requests with medical information will force defendants’ insurers to con- sider the notice of intent defective as evidence that defendants made an *11 representation they intentionally abandoning were their affirmative right to contest the notice of intent. Such is the world that the dissent peril any would create that defendants must communicate at their potential plaintiff specifically unless each such communication disclaims any right folly approach waiver of of defense available. If the of this is sufficiently self-evident, below, reject not for the reasons set forth we game theory litigation particular “nonrepresentation dissent’s and in its implied theory. waiver” 466 Mich statute, because of the but because of our court not concerning pleading, 2.111(F)(3), MCR and sum- rules mary disposition, 2.116(D)(2).7
MCR arising in a medical case under sum, In only tolling provision statute, this it is when the becomes an issue that a defendant would be com- pelled adequacy
to contest of the notice. The Court of extrastatutory Appeals argue and the dissent for the object requirement obligation of an earlier to to the adequacy they of the notice because contend that the promote negotia- statute was intended to settlement policy argument, tions. Whatever the merit of this apply obligated unambiguous are terms of the policy preferences. statute, not our We conclude that only require Legislature not failed to an earlier objection, affirmatively provided remedy it a different respond for a defendant’s negating to the notice thus failure arguments the “waiver” offered the Court and the dissent. See n 5. regardless For these reasons, of whether it relies principles, argu- on waiver or forfeiture the dissent’s ment fails.
IV. CONCLUSION light plain language 600.5856(d), of MCL we conclude that the statute of in a limitations medi- because, to the notice must be made under these rules malpractice case, in this if failed to with the notice requirement, arguably controlling her claim was barred statute of limitations, pleaded must be an affirmative defense that defendants’ summary disposition responsive pleading. motion for or first Once the below, statute of limitations is it asserted as defense as was then a argue 5856(d). § is free to that the statute was tolled under It is point obligated adequacy at this that a defendant notice under 2912b. *12 v Mecosta Co Gen Dissenting Opinion by J. Kelly, malpractice action is not tolled
cal unless notice is provisions given compliance with all the of MCL 600.2912b. We conclude that MCL 600.2912b further object require sufficiency did not defendants to of the notices of intent before the of the com- plaint.8 addition, because MCL a 600.5856(d) is toll- provision ing tolling provisions negate and work to a defendant, statute of limitations defense raised defendants did not need to assert the defense or chal- plaintiffs lenge compliance with MCL 600.2912b, required by until 600.5856(d), filed suit.
Accordingly, judgment reverse of the Court Appeals and, recognizing panel that did not reach a regarding determination whether the trial court erred in concluding that notices of intent did not with we remand 2912b(4), Appeals this matter to the Court of pro- for further ceedings opinion. consistent with this
Corrigan, C.J., and Weaver, Taylor, Markman, JJ., concurred with J. Young, J. majority implies (dissenting). that a
Kelly, statute must explicitly permit waiver before the waiver doctrine can operate to excuse noncompli- majority ance. Moreover, seems to confuse the concept representation of an affirmative indicating waiver and an explicit statement of waiver. It seems regard necessary latter as case, pro- this but authority vides no to support assumption. I dis- agree majority’s analysis and would affirm express opinion concerning plaintiffs compliance We no or noncom pliance 600.2912b, with MCL an issue that the Court of declined to answer. Dissenting Opinion by J. Kelly, Appeals application the Court of of the doctrine of waiver in this case.1 not,
I would not, and do infer waiver from mere silence. I Moreover, do not believe that either MCL supports 600.5856(d) requirement
600.2912bor MCL alleged that a defendant deficiencies in a *13 complaint notice of intent before the is filed. There- agree majority’s fore, I with the conclusion that there duty challenge is no to deficiencies before the com- plaint is filed.
Generally, agree begin I that, to of the 600.5856(d) MCL statute of limitations, a fully comply requirements must with the of MCL Compliance delivery provision 600.2912b. with the the notice statute alone is However, insufficient. I prospective would hold that a defendant can waive specific requirements content for the notice of intent an affirmative action. majority neglects important
The
to consider an
fact
Representatives
in this case.
companies corresponded
of defendants’ insurance
plaintiff’s
counsel with-
complaining
inadequacies
out
that there were
in the
Appeals initially
The Court of
holding
couched its
in these terms:
any alleged
waived
intent,”
“[Defendants
in
deficiencies
the notice of
(emphasis added).
emphasize
It went on to
that defendants
“fail[ed]
complain.” Ultimately,
any objections
it held that a defendant must raise
to a notice of
App 175, 181,
intent before a
is filed. 240 Mich
185;
(2000).
itly
possibility
include the
of waiver. Nor does the
majority
authority.3
cite such
majority
only
The
relies
“mandatory”
on the
provision
nature of the notice
and
proposition
that an unambiguous
requires
statute
compliance.4
full
However,
I believe that
the man-
datory nature of the notice statute
dispositive
is not
here,
undisputed
where it
that defendants had
plaintiffs
actual notice of
intent to file suit.
equitable
Waiver is an
doctrine, applied judicially to
injustice.
avoid
28 Am Jur 2d, Estoppel
Waiver,
197. As is true with
equitable
doctrine of
estop
pel,
possibility
of waiver need not be set forth in
the language of a statute.5 Where a defendant makes
representations
affirmative
implying that he has no
3
majority
The
Pipe,
relies on Northern Concrete
Inc v Sinacola Com
panies-Midwest,
Inc,
316;
461
(1999),
Mich
objections may, notice, to the content of a as a equity, objections matter of find his later waived.6 repre- The defendants this case made affirmative reasonably sentations that led to believe that adequate. doing, her notice of intent was In so defen- rely encouraged 182-day dants on the toll- ing period initiated that notice. When filed complaint her well within the extended limitation period,7 permitted defendants cannot be on grounds statute of limitations and the provision. affirmatively the notice The defense was waived defendants’ actions.
Presumably, plaintiff malprac- could have filed her statutory period tice claim within the of limitation but statutory requirement provide for the that she doing notice of intent to file her claim. After so, and particularly receiving after communications from agents defendants’ every because of that notice, she had triggered reason to believe that the notice provision tolling 600.5856(d). require- of MCL vague. ments of MCL 600.2912bare Neither the stat- provides any guidance ute nor related case law about say, abstract, objec This is not to in the that a defendant waives an tion based on notice or the statute of limitations time that the defen participates dant in a lawsuit. When it enacted MCL 600.2912b and MCL 600.5856(d), Legislature unique complex require created a set of requirement ments that intertwine the notice with the statute of limita case, tions. Under the circumstances of this I believe that defendants suf ficiently implied they objection premised inadequate had no on preclude objection. a statute of limitations 7 Proper 182-day period notice under the statute initiates a regardless responds pursuant of whether a defendant to MCL However, plaintiff 600.2912b(7). immediately upon filed her expiration 154-day waiting period, abbreviated as soon as the stat permitted. City Warren, 567, 576-577; ute See Omelenchuk v *16 76
Dissenting Opinion Kelly, J. plaintiff quantity potential must furnish of detail a the malpractice regarding the claim.8 majority implies challenge a on the also that of limitations cannot be waived basis of the statute par- Again, disagree. I Where before the of suit. engaged negotiations, in settlement for exam- ties are ple, potential might agree to a stat- defendant waive negotiations ute of limitations defense to continue Wickings being e.g., See, and avoid a claim filed. v Enterprises, App Inc, 125, 148-150; Arctic (2000).9 negotiations NW2d Should 624 197 settlement representation fail, the affirmative that the defendant waived a statute of limitations defense would bar plaintiff when filed a claim the the outside statutory period. Similarly, defendants’ communica- operate tions to should here to waive statute of limitations defense. today’s
The effect of
decision is to shorten the stat-
utory period
malpractice
of limitation for a medical
year.
potential plaintiff
A
claim more than half a
would be well advised to file a notice of intent at
days
period expires.
least 182
before the
There is now
telling
no
whether a notice will be deemed sufficient
provision.
plain-
trigger
tolling
fact,
to
In
even the
by inquiring
tiff who follows a notice
addi-
whether
suffering
tional information is needed
conse-
risks
quence
technically inadequate.
of a notice found to be
rely
A
should not
even on the formal re-
8
reasonably
expected
I wonder how much detail can
be
from a
yet
discovery.
who has not
of
had the benefit
judiciary
recognized
equitable
Federal
courts have
has
con
statutory periods
limitation,
including tolling
trol over
of
and waiver. See
City
York,
467, 479;
2022;
Bowen v
New
476 US
106 S Ct
sponse 600.2912b(7). complaint If outlined in MCL years were filed than two after the more sufficiently flawed, claim accrued and the notice were Legislature the claim would still be time-barred. The not have when it could intended that result enacted designed promote which 600.2912b, was settlement. conclusion, I would reverse the Court of imposed duty
decision the extent that it to a deficient notice intent before a application However, filed. I affirm the would waiver to the notice and statute combination. *17 These defendants communicated with investigated her claim as the notice statute contem- plates, presumably possibility of the furtherance Appeals recognized a settlement. The Court of allowing unfairness them much later to gave that the notice of intent was it defective because pretrial promote investiga- insufficient information to tion and settlement. affirmatively responded plain-
When defendants they reasonably intent, tiff’s notice of should have expected plaintiff they to understand that had no objections By doing, or to its form content. defen- so affirmatively premised dants waived on objec- that notice. Because the statute limitations necessarily inquiry tion in this case is based on an adequacy objec- into the of intent, affirmatively was tion waived. J., J.
Cavanagh, Kelly, concurred