Lead Opinion
In this medical malpractice action, plaintiff appeals as of right the trial court’s grant of summary disposition in favor of defendants pursuant to MCR 2.116(C)(7). Plaintiffs action arose out of a kidney transplant; she suffered injury because the kidney was not properly checked for a “cross-match” prior to transplantation, and it was subsequently discovered that there was a positive match. Plaintiff sent notices of intent to defendants pursuant to MCL 600.2912b, but filed her complaint 112 days later instead of waiting 182 days or more as required by statute, MCL 600.2912b(l). Although the trial court otherwise reached the only result possible under the currently binding caselaw precedent,
Plaintiff received her kidney transplant on June 9, 2007. On April 23, 2009, she sent defendants notices of intent to file a claim, pursuant to MCL 600.2912b. Plaintiff filed the complaint on August 13, 2009. Consequently, plaintiff filed her complaint 112 days after serving the notices of intent, rather than at the end of the 182-day period called for by MCL 600.2912b(l). Defendants do not, at least for purposes of the instant motion proceedings, dispute the propriety and sufficiency of the notices of intent. Defendants eventually filed a motion for summary disposition on the theory that because plaintiff had failed to wait either the full 182-day period or the shortened 154-day period permitted if a defendant failed to respond to a notice of intent, MCL 600.2912b(l) and (8), plaintiffs complaint was insufficient to commence the action. Because the limitations period had expired by then, defendants argued that dismissal must be with prejudice. Plaintiff contended that because defendants’ responsive pleadings asserting their affirmative defenses failed to set forth sufficient facts to put plaintiff on notice that she had failed to comply with the notice-period requirement, defendants had waived that affirmative defense pursuant to MCR 2.111(F). The trial court, relying on Burton v Reed City Hosp Corp,
A grant or denial of summary disposition is reviewed de novo on the basis of the entire record to determine if the moving party is entitled to judgment as a matter of law. Maiden v Rozwood,
It has essentially always been the rule in Michigan that defendants must “apprise the plaintiff of the nature of the defense relied upon, so that he might be prepared to meet, and to avoid surprise on the trial.” Rosenbury v Angell,
We note, however, that although Electrolines, Inc did not so mention, affirmative defenses are not necessarily-waived by failing to state them in a first responsive pleading at the time that pleading is originally filed. Pursuant to MCR 2.111(F)(3), “[a]ffirmative defenses must be stated in a party’s responsive pleading, either as originally filed or as amended in accordance with MCR 2.118” (emphasis added). Likewise, a defense “not asserted in the responsive pleading or by motion as provided by these rules is waived . . . .” MCR 2.111(F)(2) (emphasis added). Although affirmative defenses are not “pleadings,” McCracken v City of Detroit,
Furthermore, MCR 2.111(F)(3) requires that the party “must state the facts constituting” any affirmative defense so raised (emphasis added). The purpose of this requirement is to provide the opposing party with sufficient notice of the alleged affirmative defenses to permit that party to take a responsive position, and a stated affirmative defense that does so will not be deemed insufficient. Hanon v Barber,
In this case, one group of defendants presented a list • of affirmative defenses that, in relevant part, stated, “Plaintiff failed to comply with the notice provisions of MCL 600.2912b; MSA 27A.2912b and that Plaintiffs action is thus barred; Defendant gives notice that it will move for summary disposition.” The other group of defendants did not even mention MCL 600.2912b at all. The latter group seems to assert that their affirmative defenses were sufficient because another defendant’s affirmative defenses were sufficient. The former group of defendants asserts that their affirmative-defense statement was sufficient because the “notice provisions of MCL 600.2912b” include the waiting period — which is described as a “notice period” in the statute. We disagree with both assertions. The affirmative defenses presented in this case were not sufficient to raise the affirmative defense of failure to comply with the notice period; consequently, that
MCL 600.2912b(4) specifically addresses “the notice given to a health professional or health facility.” An ordinary reading of the affirmative defense alongside the statute could reasonably induce a reader to believe that plaintiffs only alleged violation of MCL 600.2912b— specifically, the “notice provisions” thereof — pertained to the notice itself, as distinct from the notice period. It is true that “the primary function of a pleading in Michigan is to give notice of the nature of the claim or defense sufficient to permit the opposite party to take a responsive position.” Stanke,
A plaintiff may move for a more definite statement if the statement is vague or ambiguous. MCR 2.115(A). Plaintiff did not at that time move to strike any affirmative defenses as insufficient or request more detail. However, a failure to move for a more definite statement is not proof that the filing was adequate to begin with. See Dacon v Transue,
Because defendants failed to provide any, let alone a comprehensible or adequate, statement of facts supporting the relevant affirmative defense, we find the affirmative-defense statement by the defendants insufficient to raise the affirmative defense of plaintiffs failure to comply with the notice-period requirement of MCL 600.2912b. Under a plain application of MCR 2.111(F), the affirmative defense would be waived.
Defendants alternatively argue that the trial court constructively granted leave to amend their affirmative defenses by considering the merits of defendants’ assertions that plaintiff failed to comply with MCL 600.2912b. As discussed, a party may amend filings as long as doing so will not prejudice the opposing party. MCR 2.118; MCL 600.2301; Stanke,
However, defendants also argue that even if their affirmative defenses were insufficient, summary disposition was nevertheless warranted because, ultimately, plaintiffs complaint, which was filed before the 182-day notice period mandated by MCL 600.2912b(l) had elapsed, simply failed to commence the action. Therefore, the trial court had no other alternative to dismissing the action. Under the current state of binding case law, we are compelled to agree.
In Auslander v Chernick, unpublished opinion per curiam of the Court of Appeals, issued May 1, 2007 (Docket No. 274079), the plaintiffs failed to file an affidavit of merit with their medical malpractice complaint. The defendants’ affirmative defenses included statements that the plaintiffs’ claim was “ ‘barred by the statute of limitations as it applies to malpractice actions’ ” and that the plaintiffs’ affidavit of merit “ ‘fail[ed] to meet the requirements of MCL §600.2912a; MCL §600.2912d, and other provisions as set forth in the Tort Reform Acts of 1993 and 1995.’ ” The defendants moved for summary disposition after the expiration of the limitations period, arguing that the plaintiffs had failed to file affidavits of merit with the complaint. The Plaintiffs responded that the defendants
A majority of a panel of this Court affirmed. However, in a dissenting opinion, Judge JANSEN stated,
I fully acknowledge that a defendant must raise certain defenses in its first responsive pleading, and that a failure to do so may result in the waiver of those defenses. See MCR 2.111(F)(2); MCR 2.111(F)(3). However, I conclude that [the] defendants were never required to raise or plead their asserted defenses in the first instance because this medical malpractice action was never properly commenced.
[The] [plaintiffs’ claims arose, at the latest, at the time of the myocardial infarction in March 2003. “[T]he mere tendering of a complaint without the required affidavit of merit is insufficient to commence [a medical malpractice] lawsuit,” and therefore does not toll the two-year period of limitations. Scarsella v Pollak,461 Mich 547 , 549-550;607 NW2d 711 (2000). In this case, plaintiffs wholly omitted to file the requisite affidavits of merit, and their complaint of September 2004 was therefore insufficient to toll the limitations period. Id. Regardless whether [the] defendants properly raised and preserved the statute-of-limitations and affidavit-of-merit defenses in their first responsive pleading, the period of limitations was not tolled by [the] plaintiffs’ complaint, and [the] plaintiffs’ claims were already time-barred at the time of the circuit court’s ruling. Id. at 553. I would reverse and remand for dismissal with prejudice of [the] plaintiffs’ claims. MCR 2.116(C)(7); Scarsella, [461 Mich] at 551-552.
On appeal, our Supreme Court reversed “for the reasons stated in the Court of Appeals dissenting opinion.” Auslander v Chernick,
This conclusion appears to do violence to what otherwise appears to be the plain and unambiguous requirements of the court rule. It is especially concerning because there is no indication that defendants suffered any actual prejudice. Conversely, had defendants actually articulated the fact that plaintiff had filed a premature complaint in their affirmative defenses, plaintiff would have still been able to correct the deficiency by filing a properly timed complaint. Rather, defendants only articulated the prematurity after the limitations period had expired. Consequently, permitting defendants to utilize this affirmative defense despite failing to comply with the clear and mandatory requirement of MCR 2.111(F) that they state the facts constituting that defense, encourages gamesmanship and resolution of cases on the basis of technicalities that harmed no party, rather than on any merits whatsoever. Nevertheless, this Court is bound to
Pursuant to MCL 600.2912b, a medical malpractice action cannot be commenced unless the plaintiff first provides to health professional or health facility defendants a written notice of intent to commence suit and then waits 182 days before filing the complaint. Burton,
Burton relied to some extent on analogous reasoning in Scarsella, wherein the Court had “concluded that the filing of a complaint without the required affidavit of merit was insufficient to commence the lawsuit.” Burton,
As applied to the instant case, because plaintiffs prematurely filed complaint did not toll the running of the limitations period, that period eventually expired. Defendants moved for summary disposition after that expiration. However, because the limitations period had expired, plaintiff could not refile and the dismissal was with prejudice.
Plaintiff argues that the relevant portion of Roberts on which Burton relied was subsequently overruled when our Supreme Court later concluded that, on the basis of subsequent legislative changes, a defective notice of intent would toll the running of the statute of limitations. Bush v Shabahang,
Plaintiff contends that because Burton analogized a prematurely filed complaint
However, regardless of our Supreme Court’s reasoning, Burton has not been overturned. Even if the underpinnings of the relevant holding have been eviscerated, the case itself remains binding. This Court has no power or authority to disregard the plain holding of a decision by our Supreme Court merely because that holding no longer seems valid; only our Supreme Court can do that. Mitchell,
Nevertheless, plaintiff argues that she should be permitted to amend her complaint pursuant to precedent from this Court. In Zwiers v Growney,
In Driver,
Notably, the applicability of Zwiers to the instant case is unclear. Most glaringly, the plaintiff in Zwiers filed an action that was prematurely filed by a single day, whereas here, the prematurity was 70 days. Defendants correctly point out that plaintiffs complaint was too soon even for the shortened 154-day period afforded to medical malpractice defendants to provide a written response to the plaintiff. MCL 600.2912b(7). A plaintiff may commence suit immediately upon the expiration of those 154 days if the defendant has failed to provide that written response. MCL 600.2912b(8). It is not clear from the record whether any of the defendants filed such a response; nevertheless, plaintiffs prematurity in this case is vastly more egregious than that in Zwiers. Again, the present record simply does not provide us with any basis for evaluating whether defendants’ substantial rights were actually affected by the premature filing. See Zwiers,
The record likewise does not show whether plaintiff made a good-faith attempt to comply with MCL 600.2912b. See Bush,
We conclude that if a complaint that is filed one day prematurely may be amended pursuant to MCL 600.2301, then it is not possible to foreclose out of hand the possibility that an action that is filed prematurely by 70 days may also be amended pursuant to MCL 600.2301, Whether such amendment can, and therefore should, be granted in any particular case will, of course, depend on an evaluation of the specific facts and circumstances of each case. In particular, the court must examine whether the party seeking amendment
In interpreting a predecessor statute to MCL 600.2301, our Supreme Court explained that the purpose of the statute was “to abolish technical errors in proceedings and to have cases disposed of as nearly as possible in accordance with the substantial rights of the parties,” that the statute should be construed liberally, and that the “right to permit amendments, in accordance with the statute, is vested in the sound judgment and discretion of the trial court.” M M Gantz Co v Alexander,
The trial court correctly determined that, all other matters being equal, dismissal with prejudice was the only possible outcome of this matter. However, plaintiff should be afforded the opportunity to make an argument in support of amending the filing date of her complaint and affidavit of merit, including the presentation of evidence should the trial court deem doing so appropriate,
Notes
As the dissent notes, and as we discuss later, our Supreme Court in Auslander v Chernick,
As noted, it is apparently standard practice to file borderline-nonsensical boilerplate lists of possible affirmative defenses with little, if any, anticipation that most of them have the slightest factual basis. Deeming them adequate unless challenged would unleash a wasteful avalanche of equally pro forma challenges and, quite possibly, sanctions. Furthermore, it may be impossible for a party to determine which bare assertions of affirmative defenses might have any merit in the absence of meaningful supporting facts offered for any of them.
Driver involved an untimely notice of intent given to a nonparty the plaintiffs sought to add as a party after the limitations period had expired; the plaintiffs sought to amend the notice to date back to the timely notice they had provided to the other defendants. Our Supreme Court held that the plaintiffs could not do so because the claim was already time-barred as to the nonparty the plaintiffs sought to add.
Obviously, defendants are equally entitled to present their own arguments and, as applicable, evidence on this matter.
Dissenting Opinion
(dissenting). I respectfully dissent from the majority opinion, which reverses the trial court’s order granting summary disposition in favor of defendants and remands for further proceedings on the basis of Zwiers v Growney,
i
MCL 600.2912b(l) “unequivocally provides” that a plaintiff “ ‘shall not’ commence an action alleging medical malpractice . . . until the expiration of the statutory notice period.” Burton,
Nothing in Bush altered our holding in Burton. The central issue in Bush involved the effect an NOI had on tolling when the NOI failed to comply with the content requirements of MCL 600.2912b(4). The central issue in Burton involved the effect the plaintiffs failure to comply with the notice-waiting-period requirements had on tolling. Indeed, the Bush Court repeatedly emphasized that the focus of MCL 600.5856(c) is compliance with the notice waiting period set forth in MCL 600.2912b. In contrast to placing doubt on the viability of Burton, this aspect of Bush aligned with Burton’s holding that a plaintiff must comply with the notice waiting period to ensure the complaint tolls the statute of limitations.
Plaintiff filed her complaint and affidavit of merit in this case only 112 days after serving the notices of intent on defendants in contravention of MCL 600.2912b(l), which requires that a plaintiff wait at least 182 days before “commencing]” an action.
Further, I disagree with the majority’s conclusion that defendants waived, or even could have waived, an affirmative defense that plaintiffs complaint was prematurely filed. In its order in Auslander v Chernick,
ii
The majority also reverses and remands on the basis of this Court’s ruling in Zwiers,
The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.
Thus, “MCL 600.2301 only applies to actions or proceedings that are pending.” Driver,
Applying the Supreme Court’s analysis in Driver to the facts in this case, plaintiffs complaint cannot be resurrected under MCL 600.2301. I agree that at the time plaintiff properly served NOIs to defendants, a proceeding was pending to which MCL 600.2301 would have been applicable. However, the limitations period expired without commencement of a medical malpractice action because plaintiffs complaint was filed prematurely. Since “ ‘[a]n action is not “pending” if it cannot be [or was not] “commenced,” ’ ” id., there was no action pending in the trial court to which MCL 600.2301 could be retroactively applied. Moreover, retroactive application of MCL 600.2301 would affect defendant’s substantial rights because defendant would be “denied its right to a statute-of-limitations defense,” which is plainly contrary to, and not in furtherance of, the Legislature’s intent in enacting MCL 600.2912b. Id. at 255.
In this regard, this Court’s holding in Zwiers,
Zwiers was undermined by the Supreme Court’s subsequent decision in Driver for several reasons. First, because the plaintiff in Zwiers prematurely filed her complaint, no action was commenced by the plaintiff before the limitations period expired, and therefore, no action was ever pending such that the trial court would be authorized under MCL 600.2301 to permit an amendment of the complaint by which plaintiff attempted to commence the action. Driver,
For the reasons stated herein, I respectfully dissent and would affirm the trial
Certain conditions can reduce this waiting period. See, e.g., MCL 600.2912b(3) and (7).
Thus, even assuming the expiration of the limitations period did not also extinguish the proceeding which commenced with the filing of the NOI, any amendment of plaintiffs complaint in an attempt to retroactively meet the requisite limitations period would also affect defendant’s substantial rights by depriving it of a valid statute of limitations defense, such that MCL 600.2301 would be inapplicable.
Notably, unlike the Supreme Court in Driver, the Zwiers Court did not address the impact of the defendants’ right to a statute of limitations defense on the trial court’s ability to utilize MCL 600.2301 to resurrect the plaintiffs cause of action; instead, it only focused on the fact that “[t]here was no evidence of interrupted settlement negotiations on the date of filingf] and [that the] defendants had the time and opportunity to investigate plaintiffs allegations as evidenced by defendants’ response to plaintiffs NOI under MCL 600.2912b(7).” Zwiers,