Bush v. Shabahang
Bush v. Shabahang
Opinion of the Court
At issue before this Court is the proper interpretation of MCL 600.5856(c), as amended by 2004 PA 87, effective April 22, 2004. We have been asked to consider whether a defect in a timely mailed notice of intent (NOI), provided to a medical malpractice defendant pursuant to MCL 600.2912b, precludes the tolling of the statute of limitations on a plaintiffs medical malpractice claim. We also consider whether, and under what circumstances, a plaintiff may take advantage of the 154-day statutory waiting period provided under MCL 600.2912b(8).
We therefore affirm the Court of Appeals in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
I. FACTS AND PROCEDURAL HISTORY
The underlying facts and procedural history of this case were well set forth by the Court of Appeals. The Court of Appeals summarized:
On August 7, 2003, Gary E. Bush (Bush), who was 33 at the time, had surgery to repair an aortic aneurysm at Spectrum Health’s Butterworth Campus. [Behrooz-Bruce] Shabahang and [John] Heiser, who are surgeons employed by [West*162 Michigan] Cardiovascular [Surgeons], performed the surgery. Plaintiff [Gary L. Bush], Bush’s guardian, claims that when Shabahang cut open Bush’s chest, he lacerated the aneurysm, which made it necessary for Heiser to cannulate Bush’s femoral artery and femoral vein so that Bush could be placed on a heart-bypass machine before the surgery could proceed. Defendants George T. Sugiyama, M.D., and M. Ashraf Man-sour, M.D., who are vascular surgeons with defendant Vascular Associates, EC., repaired Bush’s femoral artery and femoral vein, respectively. According to plaintiff, the injuries Bush suffered during the surgery and during his recovery rendered him unable to lead an independent life.
On August 5, 2005, which was just days before the expiration of the applicable period of limitations, plaintiff served a notice of intent to file a medical-malpractice complaint against Shabahang, Heiser, Sugiyama, Mansour, [West Michigan] Cardiovascular, Vascular Associates, and Spectrum Health. Sugiyama, Mansour, Vascular Associates, and Shabahang responded to plaintiffs notice as required by MCL 600.2912b(7). On January 27, 2006, which was 175 days after plaintiff served notice on defendants, plaintiff filed his complaint against all defendants.
Shortly thereafter, Sugiyama, Mansour, and Vascular Associates moved for summary disposition under MCR 2.116(C)(7), (8), and (10). They argued that dismissal was appropriate on two grounds: (1) plaintiff faded to file a notice that complied with the requirements of MCL 600.2912b, and (2) plaintiff failed to wait the required 182 days before filing his complaint. Shabahang, Heiser, and [West Michigan] Cardiovascular joined the motion. Spectrum Health later filed its own motion for summary disposition based solely on the alleged deficiency of the notice.
In response to these motions, plaintiff argued that the notice met the minimum statutory requirements. Plaintiff responded to the allegations that the complaint was prematurely filed by arguing that the responses to the notice were deficient. Because defendants’ responses to the notice were deficient, plaintiff contended that he could properly file his complaint after 154 days from the date of service of the notice. Hence, plaintiff concluded, his complaint was not prematurely filed.
*163 The trial court determined that the notice was insufficient with regard to Sugiyama, Mansour, and Vascular Associates. On the basis of that conclusion, the trial court granted summary disposition in favor of Sugiyama, Man-sour, and Vascular Associates. The trial court also granted summary disposition in favor of Spectrum Health, but only to the extent that its alleged liability was based on the actions of Sugiyama and Mansour. The trial court also granted summary disposition in favor of Spectrum Health with regard to the claims of negligence on the part of Spectrum Health’s physician assistants because plaintiff failed to file a conforming affidavit of merit. However, “[a]s to the other doctors and defendants ... the Court’s of the opinion that the [notice] is clearly sufficient, so those motions are denied.” The trial court also determined that plaintiffs complaint was not prematurely filed.[1 ]
Defendants appealed the trial court’s orders. The Court of Appeals consolidated defendants’ applications for leave to appeal. On May 1, 2008, the Court of Appeals issued a published opinion affirming in part, reversing in part, and remanding to the trial court for further proceedings.1
Defendants filed three separate applications for leave to appeal in this Court. This Court consolidated the appeals and granted oral argument on the applications.
II. STANDARD OF REVIEW
The issues presented are issues of statutory interpretation. Statutory interpretation is a question of law, which this Court reviews de novo.
III. ANALYSIS
A. MCL 600.5856(c) AND TOLLING
The first issue this Court is asked to address is whether the defects identified in plaintiffs NOI act to bar tolling of the statute of limitations under MCL 600.5856(c), as amended by 2004 PA 87, effective April
The relevant language of § 5856(d), the predecessor to § 5856(c),
This question was seemingly answered in Roberts v Mecosta Co Gen Hosp (Roberts I)
However, this holding was foundationally premised on the pre-amendment language. The Court explained:
*166 Section 5856(d) clearly provides that notice must he compliant with § 2912b, not just § 2912b(2) as plaintiff contrarily contends. Had the Legislature intended only the delivery provisions of § 2912b to be applicable, we presume that the Legislature would have expressly limited compliance only to § 2912b(2). However, the Legislature did not do so. Rather, it referred to all of § 2912b.
Since the statute is clear and unambiguous, this Court is required to enforce § 5856(d) as written. As a result, the tolling of the statute of limitations is available to a plaintiff only if all the requirements included in § 2912b are met.[12 ]
Significantly, Roberts I interpreted the former MCL 600.5856(d), as the amendment was not enacted until after Roberts I was decided. Boodt, while decided in 2008, made no reference to the 2004 amendment. Rather, it relied on the Roberts I interpretation of the former § 5856(d), presumably because the complaint in Boodt was filed prior to the 2004 amendment. Neither Roberts I nor Boodt addressed the question at issue here, namely, whether the current language of § 5856(c) mandates that defects in an NOI act as a bar to tolling of the statute of limitations. Since Roberts I and Boodt relied on language of a statute that is no longer in existence, examining the correct interpretation of § 5856(c) and its interrelationship with § 2912b is an issue of first impression.
The question this Court addresses is one of statutory construction. Assuming that the Legislature has acted within its constitutional authority, the purpose of statutory construction is to discern and give effect to the intent of the Legislature.
To determine the intent of MCL 600.5856(c), we first look at its plain language. The pre-amendment version of § 5856 stated:
The statutes of limitations or repose are tolled:
(a) At the time the complaint is filed and a copy of the summons and complaint are served on the defendant.
(b) At the time jurisdiction over the defendant is otherwise acquired.
(c) At the time the complaint is filed and a copy of the summons and complaint in good faith are placed in the hands of an officer for immediate service, but in this case the statute is not tolled longer than 90 days after the copy of the summons and complaint is received by the officer.
(d) If, during the applicable notice period under section 2912b, a claim would be barred by the statute of limitations or repose, for not longer than a number of days equal to the number of days in the applicable notice period after the date notice is given in compliance with section 2912b. [Emphasis added.]
MCL 600.5856, as amended by the Legislature in 2004, states:
The statutes of limitations or repose are tolled in any of the following circumstances:
(a) At the time the complaint is filed, if a copy of the summons and complaint are served on the defendant within the time set forth in the supreme court rules.
(b) At the time jurisdiction over the defendant is otherwise acquired.
*169 (c) At the time notice is given in compliance with the applicable notice period under section 2912b, if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given. [Emphasis added.]
In comparing the pre- and post-amendment language, it is clear that the focus of the operative language has been clarified. Roberts I opined that the focus of § 5856(d) was on compliance with § 2912b in its entirety. In contrast, the focus of the new § 5856(c) is unquestionably limited to compliance with the “applicable notice period.”
As Roberts I pointed out, if the Legislature had intended to limit the applicability of § 2912b, it would have expressly limited compliance in the statute. The 2004 amendment of § 5856 does precisely that. It limits compliance to the notice period under § 2912b. Thus, pursuant to the clear language of § 2912b and the new § 5856(c), if a plaintiff complies with the applicable notice period before commencing a medical malpractice action, the statute of limitations is tolled.
Defendants ask us to disregard the change to the language of § 5856 and assume that the change was merely inadvertent. They urge us to interpret the amended statute in the same manner that Roberts I and Boodt interpreted the pre-amendment statute. We cannot do so. This Court cannot assume that language chosen by the Legislature is inadvertent.
In sum, neither the Roberts I nor the Boodt analysis applies in the matter before us because both analyses were based on a former version of § 5856 that is no longer in existence. The Legislature, in exercising its authority, has changed the language of the statute and we must abide by that action. Thus, we hold that, pursuant to the clear language of § 2912b and § 5856(c), if a plaintiff files a timely NOI before commencing a medical malpractice action, the statute of Hmitations is tolled despite the presence of defects in the NOI.
B. CONSEQUENCE OF A DEFECTIVE NOI
In light of the fact that a defective NOI does not bar tolling of the statute of limitations under § 5856(c), we must now consider what a court must do when presented with a defective NOI.
(1) Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.
(2) The notice of intent to file a claim required under subsection (1) shall be mailed to the last known professional business address or residential address of the health professional or health facility who is the subject of the claim. Proof of the mailing constitutes prima facie evidence of compliance with this section. If no last known professional business or residential address can reasonably be ascertained, notice may be mailed to the health facility where the care that is the basis for the claim was rendered.
(4) The notice given to a health professional or health facility under this section shall contain a statement of at least all of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the claimant.
(c) The manner in which it is claimed that the applicable standard of practice or care was breached by the health professional or health facility.
(d) The alleged action that should have been taken to achieve compliance with the alleged standard of practice or care.
*172 (e) The manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice.
(f) The names of all health professionals and health facilities the claimant is notifying under this section in relation to the claim.
(7) Within 154 days after receipt of notice under this section, the health professional or health facility against whom the claim is made shall furnish to the claimant or his or her authorized representative a written response that contains a statement of each of the following:
(a) The factual basis for the defense to the claim.
(b) The standard of practice or care that the health professional or health facility claims to be applicable to the action and that the health professional or health facility complied with that standard.
(c) The manner in which it is claimed by the health professional or health facility that there was compliance with the applicable standard of practice or care.
(d) The manner in which the health professional or health facility contends that the alleged negligence of the health professional or health facility was not the proximate cause of the claimant’s alleged injury or alleged damage.
(8) If the claimant does not receive the written response required under subsection (7) within the required 154-day time period, the claimant may commence an action alleging medical malpractice upon the expiration of the 154-day period.
The plain language of § 2912b(l) mandates that a plaintiff shall not commence an action for medical malpractice without filing a timely NOI. Notably, however, the statute is silent regarding the consequences of filing a defective NOI. The statute makes no reference whatsoever to a mandatory dismissal penalty in the
A review of the legislative history reveals that the Legislature did not intend for a defect in an NOI to be grounds for dismissal with prejudice based on § 2912b. The clearest indication for this conclusion was the Legislature’s complete rejection of a mandatory dismissal clause. The statute creating NOIs was originally introduced as Senate Bill 270 on January 28, 1993.
Except as otherwise provided in this subsection, in an action alleging medical malpractice, the court shall dismiss a claim not included in the notice required under section 2912f. [Emphasis added.]
Significantly, this penalty provision did not have sufficient votes to pass. Mandatory dismissal was not the will of the Legislature. This Court has previously recognized that legislative history may be used to determine legislative intent. This Court previously held that “[w]here the Legislature has considered certain language and rejected it in favor of other language, the resulting statutory language should not be held to
The stated purpose of § 2912b was to provide a mechanism for “promoting settlement without the need for formal litigation, reducing the cost of medical malpractice litigation, and providing compensation for meritorious medical malpractice claims that would otherwise be precluded from recovery because of litigation costs. . . ,”
Further, in determining legislative intent, we must look to § 2912b’s context within the broader medical malpractice statutory scheme. To do so, we examine the statute as a whole. Our review of the medical malpractice legislation indicates that it was designed as a balanced scheme, imposing equivalent requirements on both plaintiffs and defendants. Both are required to participate in the NOI process and file comparable documents.
MCL 600.2301 states:
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.
Service of an NOI is clearly part of a medical malpractice “process” or “proceeding” in Michigan.
We recognize that § 2301 allows for amendment of errors or defects, whether the defect is in form or in substance, but only when the amendment would be “for the furtherance of justice.” Additionally, § 2301 mandates that courts disregard errors or defects when those errors or defects do not affect the substantial rights of the parties. Thus, the applicability of § 2301 rests on a two-pronged test: first, whether a substantial right of a party is implicated and, second, whether a cure is in the furtherance of justice. If both of these prongs are satisfied, a cure will be allowed “on such terms as are
We must now turn to the instant NOI to determine the nature of the defect and whether § 2301 may be invoked. The NOI is 13 pages long. Plaintiff made a good-faith attempt to address each of the subsections enumerated in § 2912b(4). The Court of Appeals held, and we agree, that the vast majority of plaintiffs NOI was in compliance with § 2912b(4).
Plaintiffs notice does not adequately address the standard of care applicable to [West Michigan] Cardiovascular under a direct theory of liability for failure to properly train or hire. The notice merely provides that [West Michigan] Cardiovascular should have hired competent staff members and properly trained them. But the notice identifies no relevant standard for determining competency or properly training staff persons. Nor can the standard be gleaned from the other sections of the notice: plaintiff failed to state how [West Michigan] Cardiovascular’s hiring and training practices violated that standard, failed to state which hiring practices or training methods it should have employed, and failed to state how those improper practices proximately caused Bush’s injuries. For this reason, to the extent that plaintiff’s claims rest on these theories, the trial court should have granted summary disposition in favor of [West Michigan] Cardiovascular.
Although plaintiffs notice alleges errors on the part of Spectrum Health’s nursing staff and physician assistants, the notice does not purport to state a separate standard of care for the nurses and physician assistants. This problem is compounded by the fact that the notice does not delineate the specific actions taken by the nursing staff or physician assistants that purportedly breached the standard of care. Rather, plaintiff’s notice generally asserts that the staff should have performed monitoring, charting, assessing, and reporting and engaged in advocacy for the patient and otherwise challenged the actions of physicians. Finally, the notice does not state the manner in which the identified breaches*180 proximately caused Bush’s injuries. Thus, even when the notice is read as a whole, it does not adequately address the standard of care applicable to Spectrum Health’s staff other than Heiser and Shabahang. For that reason, we agree with Spectrum Health that the trial court erred when it concluded that plaintiffs notice met the minimum requirements of MCL 600.2912b(4)(b) with regard to Spectrum Health’s nursing staff and physician assistants. Likewise, to the extent that plaintiff purported to give notice that Spectrum Health could be held directly liable for Bush’s injuries on the basis of the theories that it negligently hired or failed to train its staff, for the same reasons we explained with regard to [West Michigan] Cardiovascular, we conclude that the notice did not meet the requirements of MCL 600.2912b.[42 ]
We agree with the Court of Appeals that these omissions do constitute defects in the NOI. However, we disagree with the Court of Appeals regarding the appropriate remedy. We are not persuaded that the defects described by the Court of Appeals warrant dismissal of a claim. These types of defects fall squarely within the ambit of § 2301 and should be disregarded or cured by amendment. It would not be in the furtherance of justice to dismiss a claim where the plaintiff has made a good-faith attempt to comply with the content requirement of § 2912b. A dismissal would only be warranted if the party fails to make a good-faith attempt to comply with the content requirements.
C. MCL 600.2912b(7) AND DEFECTIVE RESPONSES TO AN NOI
Next, given that the Court of Appeals held that Shabahang’s response to plaintiffs NOI was defective because it did not meet the requirements of MCL 600.2912b(7), the question arises whether plaintiff was required to wait the full 182-day period before filing his medical malpractice action, or whether he could avail himself of the shortened 154-day period. Our analysis again begins by examining the text of MCL 600.2912b(7).
Once again we turn to the standards set forth in § 2301 for guidance. Section 2301 similarly allows for “amendment” or “disregard” of defects in responses to NOIs, as long as the cure is in the furtherance of justice and does not affect the substantial rights of the parties. Significantly, defendants must make a good-faith attempt to comply with the content requirements of the statute to avail themselves of § 2301.
Shabahang’s one-page response to the NOI was utterly lacking in a good-faith attempt to comply. The entire substantive portion of Shabahang’s response stated:
1. FACTUAL BASIS FOR DEFENSE TO CT .ATM
The medical records involved in this case, together with deposition testimony, will form the primary defense to this case. Briefly, Dr. Shabahang contends that he*183 properly evaluated, assessed and treated Gary Bush. The actions of Dr. Shabahang were well within the standard of care.
2. STANDARD OF PARE AND COMPLIANCE
The standard of care required Dr. Shabahang to do things demonstrated in the medical records, which may be further augmented by deposition testimony. At all times, he acted within the standards of care in his care and treatment of Gary Bush.
3. MANNER OF COMPLIANCE
See § 2 above. The manner in which Dr. Shabahang complied with the applicable standard of care is outlined in the medical records, and will be further augmented by sworn deposition testimony.
4. PROXIMATE CAUSE
It is the position of Dr. Shabahang that his actions did not within a reasonable degree of medical probability contribute in any way to the complications alleged by Gary Bush. Additionally, it is the position of Dr. Shabahang that the current medical condition of Gary Bush was not in any way caused or contributed by the activities of Dr. Shabahang.
Shabahang was required to make a general statement of the factors contained in § 2912b(7). He failed to do so. Shabahang’s response is nothing more than a blanket denial of any wrongdoing. Indeed, Shabahang himself does not defend his efforts or the content of the response in his arguments to this Court. Rather, defendant takes the position that the content of the response is irrelevant. We disagree. The purpose of the NOI waiting period is to provide a cost-saving method to
This result is fully consistent with the statutory NOI scheme. It makes little sense to continue a settlement period when one party has indicated that he or she has no interest in settlement. When a defendant has made little or no attempt to comply with the statute, we will not afford the same benefits as if he or she had made an attempt to comply.
Finally, defendant asserts that plaintiff does not have the right to unilaterally make a determination on the validity of a response. We agree with the Court of Appeals that a plaintiff who unilaterally makes such a decision does so at his or her own peril. If a court ultimately determines that the response is not defective, plaintiffs complaint may be deemed untimely. However, given the limited time period involved, it would be virtually impossible for a Court to adjudicate this issue on a timely basis. By the time the parties could schedule a hearing and brief the issue, the shortened time period afforded by § 2912b would be lost. Therefore, we agree with the Court of Appeals that a plaintiff may choose to make his own determination
IV CONCLUSION
We hold that pursuant to MCL 600.5856(c), as amended by 2004 PA 87, effective April 22, 2004, when an NOI is timely, the statute of limitations is tolled despite defects contained therein. Moreover, in light of the legislative clarification of § 5856(c), we hold that the purpose of the NOI statute is better served by allowing for defects in NOIs to be addressed in light of § 2301, which permits “amendment” or “disregard” of “any error or defect” where the substantial rights of the parties are not affected, as long as the cure is in the furtherance of justice and on terms that are just. A cure is in the furtherance of justice when a party makes a good-faith attempt to comply with the content requirements of § 2912b. Finally, we hold that a plaintiff may take advantage of the 154-day waiting period provided in § 2912b (8) where a defendant fails to make a good-faith attempt to reply to the plaintiffs NOI in compliance with the statutory content requirements.
We therefore affirm the Court of Appeals in part, reverse in part, and remand to the trial court for further proceedings consistent with this opinion.
Bush v Shabahang, 278 Mich App 703, 706-708; 753 NW2d 271 (2008).
The Court of Appeals held that the claims for vicarious liability for the physician’s assistants and the nursing staff were inadequately pled, but the claims against Heiser and Shabahang were sufficient.
Bush v Shabahang, 482 Mich 1014 (2008).
Bush v Shabahang, 482 Mich 1105 (2008).
In re Investigation of March 1999 Riots in East Lansing, 463 Mich 378, 383; 617 NW2d 310 (2000).
Herald Co v Bay City, 463 Mich 111, 117; 614 NW2d 873 (2000).
The former § 5856(d) was renumbered by the amendment and now appears as § 5856(c).
Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 642 NW2d 663 (2002).
Boodt v Borgess Med Ctr, 481 Mich 558, 561; 751 NW2d 44 (2008).
Roberts I, 466 Mich at 59.
Sun Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570, 579 (2008), quoting Sun Valley, 460 Mich at 237.
Sun Valley, 460 Mich at 237.
Herman, 481 Mich at 366.
Id., quoting Bailey v United States, 516 US 137, 145; 116 S Ct 501; 133 L Ed 2d 472 (1995).
Wayne Co v Auditor General, 250 Mich 227, 233; 229 NW 911 (1930).
See Lawrence Baking Co v Unemployment Compensation Comm, 308 Mich 198, 205; 13 NW2d 260 (1944).
See In re MCI Telecom Complaint, 460 Mich 396, 415; 596 NW2d 164 (1999).
Lawrence Baking, 308 Mich at 205.
Id. See also Ettinger v City of Lansing, 215 Mich App 451; 546 NW2d 652 (1996), wherein Justice Markman, then sitting at the Court of Appeals and joined by then-Judge CORRIGAN, opined:
We note that plaintiffs correctly state the general proposition that changes in statutory language presumably reflect a change in meaning. Wortelboer v Benzie Co, 212 Mich App 208, 217; 537 NW2d 603 (1995). However, changes in statutory language may reflect an attempt to clarify the meaning of a provision rather than change it. Id.; see also Evans v Hebert, 203 Mich App 392, 403; 513 NW2d 164 (1994).
The Boodt Court opined that because no tolling was afforded in the presence of a defect pursuant to § 5856(d), the plaintiffs action was not commenced under § 2912b(l). Boodt, 481 Mich at 562-563. Our analysis today explains that the Legislature has made it clear that a defective NOI
This bill was introduced in the Senate by Senators DeGrow, Van Regenmorter, Gast, Cisky, Welborn, Wartner, Emmons, Schwarz, Ehlers, Geake, Arthurhultz, DiNello, Koivisto, Bouchard, Dunaskiss, Pridnia, and McManus.
In re MCI Telecom Complaint, 460 Mich at 415. Similarly, Univ Med Affiliates, PC v Wayne Co Executive, 142 Mich App 135, 140; 369 NW2d 277 (1985), held that the legislative history of a statute may be considered and, where it can he shown that certain language was affirmatively rejected, the court should not give the statute a construction that the Legislature plainly refused to give. As the Court explained in In re MCI Telecom Complaint:
[W]e find the meaning of [MCL 484.2312a], standing alone, to be unambiguous on its face. The statutory language clearly requires that, should interLATA prohibitions be removed, Ameritech must provide intraLATA toll dialing parity. There is, however, nothing on the face of this statute, or within the language enacted by the Legislature, that would hold the reverse to be true. Indeed, where the Legislature specifically considered language authorizing such a linkage, and rejected it, the Court of Appeals clearly erred in holding that the statute inextricably linked intraLATA and interLATA toll dialing parity. [In re MCI Telecom Complaint, 460 Mich at 415-416.]
See also Nation v WDE Electric Co, 454 Mich 489, 492-493, 495; 563 NW2d 233 (1997); Miller v State Farm Mut Automobile Ins Co, 410 Mich 538, 566; 302 NW2d 537 (1981); and People v Adamowski, 340 Mich 422, 429; 65 NW2d 753 (1954).
Senate Legislative Analysis, SB 270, August 11, 1993; House Legislative Analysis, HB 4403 to 4406, March 22, 1993.
See MCL 600.2912b.
See MCL 600.2912d and MCL 600.2912e.
MCL 600.2169.
MCL 600.2912b(8).
Given the Legislature’s clear rejection of dismissal as a penalty in § 2912b, and its amendment of § 5856(d), we question whether the Legislature ever intended § 5856(d) to preclude tolling of the statute of limitations in the presence of defects in an NOI. The timing of the amendment, the language chosen, and the legislative history support the conclusion that the change was intended to be a clarification of the original intent of the statute rather than it being representative of a change from the original intent. Accordingly, we question whether Roberts I and Boodt were correctly decided, as they failed to consider the entire legislative scheme and the legislative history involved. However,
See Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679, 691; 684 NW2d 711 (2004) (Roberts II) (“[W]e acknowledge that the notice of intent is provided at the earliest stage of a medical malpractice proceeding.”) (emphasis added); Boodt, 481 Mich at 561.
MCL 600.2912b(l).
We note that the majority in Boodt engaged in some limited discussion of § 2301 in a footnote. Boodt, supra at 567 n 4. However, as we previously indicated, the Boodt majority did not reach this issue in fight of its holding that, because the NOI was deficient, no action was pending, and § 2301 only applies to pending actions. Again, as this analysis is based on the former § 5856(d), it is no longer applicable.
Boodt, 481 Mich at 567-572 (CAVANAGH, J., dissenting); see also Tudryck v Mutch, 320 Mich 99, 107; 30 NW2d 518 (1948) (applying the predecessor statute of MCL 600.2301 to allow amendment of a settlement agreement); Fildew v Stockard, 256 Mich 494, 498-499; 239 NW 868 (1932) (applying the predecessor statute of MCL 600.2301 to allow amendment of an affidavit for a writ of garnishment that was required to be filed before commencement of that action); Hopkins & Son v Green, 93 Mich 394, 395-396; 53 NW 537 (1892) (applying the predecessor statute of MCL 600.2301 to allow amendment of a bond); Bole v Sands & Maxwell Lumber Co, 77 Mich 239, 241-242; 43 NW 873 (1889) (holding that a summons could be amended pursuant to the “process, pleading or proceeding” language of the predecessor statute of MCL 600. 2301).
MCL 600.2301.
MCL 600.2912b(5) provides for the exchange of medical records.
The court found no defects with regard to the claims against the individually named doctors, the vicarious liability claims against West Michigan Cardiovascular Surgeons, and the vicarious liability claims against Spectrum Health for Heiser and Shabahang.
Bush, 278 Mich App at 711, 716-717 (citations omitted).
See defendant’s response to plaintiffs NOI, at pp. 182-183 of this opinion, which provides an example of a failure to demonstrate a good-faith attempt to comply with the content requirements.
MCL 600.2301 provides that any amendment shall be made “on such terms as are just.” We note that in light of this provision, justice would be served by having any amendment relate back to the time that the original NOI was mailed, in accord with the treatment afforded to pleadings when amended under MCR 2.118(D).
See part III(B) of this opinion for the full text.
MCL 600.2912b(8) provides: “If the claimant does not receive the written response required under subsection (7) within the required
We note that our holding today does not conflict with Omelenchuk v City of Warren, 461 Mich 567, 575; 609 NW2d 177 (2000) (holding that the statute of limitations remains tolled for the full 182 days even if the plaintiff takes advantage of the shortened waiting period).
See MCL 600.2912b(9).
Dissenting Opinion
(dissenting). Because I disagree with the majority’s interpretation of the notice-tolling provision in MCL 600.5856, as well as with its interpretation of
I. FACTS AND HISTORY
Plaintiff underwent surgery on August 7, 2003, for an aortic aneurysm and a heart valve replacement. Plaintiff alleges that during the surgery defendant Behrooz-Bruce Shabahang, M.D., “cut into the aortic aneurysm causing a laceration” and defendant John Charles Heiser, M.D., “improperly clamped [a] vessel causing vascular damage.” Defendants George T. Sugiyama, M.D., and M. Ashraf Mansour, M.D., “were called in to repair the vein and artery.” Plaintiff alleges that the injuries caused by the surgery have caused him to become “unable to live without supervision and assistance.”
On August 5, 2005, two days before the two-year period of limitations expired, plaintiff served defendants, including Spectrum Health Butterworth Campus (the facility where the surgery took place), West Michigan Cardiovascular Surgeons (the entity to which Shabahang and Heiser belonged), and Vascular Associates, EC. (the entity to which Sugiyama and Mansour belonged), with notices of intent to file suit. Shabahang responded to plaintiffs notice, as did Sugiyama, Mansour, and Vascular Associates, but Heiser, Spectrum Health, and West Michigan Cardiovascular did not. On January 27, 2006, 175 days after serving notice, plaintiff filed his complaint against all defendants.
The trial court granted summary disposition in favor of Sugiyama, Mansour, and Vascular Associates because plaintiffs notice did not include a standard of care for
The Court of Appeals initially denied leave to appeal but, after remand by this Court, 477 Mich 934 (2006); 477 Mich 935 (2006), issued an opinion affirming in most respects the trial court’s decision regarding the sufficiency of plaintiffs notice. Bush v Shabahang, 278 Mich App 703; 753 NW2d 271 (2008). The Court of Appeals, however, held that the notice was defective for the direct liability claims against Spectrum Health and West Michigan Cardiovascular Surgeons, which were based on their alleged failure to properly hire and train staff. With respect to those claims, the Court remanded for dismissal without prejudice, concluding that the statute of limitations had been tolled by the defective notice and that the “applicable limitations periods remain tolled until entry of the grants of summary disposition.” Id. at 727. With respect to the timing of plaintiffs complaint, the court held that plaintiffs complaint was timely filed, although Judge FITZGERALD would have held that plaintiff was required to wait 182 days after giving notice before commencing the suit. Id. at 727-729 (FITZGERALD, EJ., concurring in part and dissenting in part).
(1) whether the plaintiffs defective notice of intent as to defendants West Michigan Cardiovascular Surgeons and Spectrum Health tolled the period of limitations pursuant to MCL 600.5856(c), as amended by 2004 PA 87, effective April 22, 2004; and (2) whether defendant Shabahang’s defective response to the plaintiffs notice of intent, MCL 600.2912b(7), was presumed valid such that the plaintiff was required to wait the full 182-day period before filing his medical malpractice action. [482 Mich 1105 (2008).]
II. STANDARD OF REVIEW
This Court reviews questions regarding summary disposition “de novo to determine if the moving party is entitled to judgment as a matter of law.” Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). We also review questions of statutory interpretation de novo. Miller v Mercy Mem Hosp, 466 Mich 196, 201; 644 NW2d 730 (2002).
III. TOLLING STATUTE
A. ANALYSIS
A claim for medical malpractice must be brought within two years from the time the alleged malpractice
MCL 600.5856(c) provides:
The statutes of limitations or repose are tolled in any of the following circumstances:
(c) At the time notice is given in compliance with the applicable notice period under section 2912b, if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days*190 remaining in the applicable notice period after the date notice is given.[6 ]
Previously this provision read:
The statutes of limitations or repose are tolled:
(d) If, during the applicable notice period under section 2912b, a claim would be barred by the statute of limitations or repose, for not longer than a number of days equal to the number of days in the applicable notice period after the date notice is given in compliance with section 2912b. [MCL 600.5856(d).[7 ]
In Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 64-66; 642 NW2d 663 (2002) (Roberts I), this Court held that in order to toll pursuant to the pre-amendment provision, plaintiffs notice must comply with MCL 600.2912b(4).
The Court’s obligation in interpreting a statute is to “give effect to the Legislature’s intent as expressed in the words of the statute.” Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d 219 (2002). “[Language does not stand alone, and thus it cannot be read in a vacuum. Instead, ‘it exists and must be read in context with the entire act....”’ G C Timmis & Co v Guardian Alarm Co, 468 Mich 416, 421; 662 NW2d 710 (2003). “Statutes that address the same subject or share a common purpose are in pari materia and must be read together as a whole” to fully reveal the Legislature’s intent. People v Harper, 479 Mich 599, 621; 739 NW2d 523 (2007); see also Turnbull v Prentiss Lumber Co, 55 Mich 387, 394; 21 NW 375 (1884). The notice-tolling provision and the notice statute, § 2912b, are in pari materia because the notice-tolling provision was enacted with § 2912b, see 1993 PA 78, and directly references § 2912b. Accordingly, the notice-tolling provision must be interpreted in light of the overall statutory scheme within which it was placed.
The notice-tolling provision tolls “[a]t the time notice is given in compliance with the applicable notice period under section 2912b.” The applicable notice period
Furthermore, allowing the notice-tolling provision to be triggered by a defective notice makes little sense considering that the provision only applies “if during [the applicable notice period] a claim would be barred by the statute of limitations.” MCL 600.5856(c). One cannot fairly say that a claim would be barred “during” the notice period when the notice period has not begun due to the plaintiffs failure to file a sufficient notice. Further, the tolling period is equal to the “number of days remaining in the applicable notice period after the date notice is given.” MCL 600.5856(c). Because a defective notice does not create an applicable notice period under § 2912b(l), the number of days remaining in that period cannot be determined. Thus, if a defective notice is allowed to toll, the notice-tolling provision
Here, plaintiffs notice was defective because it did not contain any statement regarding the standard of care for claims alleging direct liability against West Michigan Cardiovascular and Spectrum Health. Plaintiffs failure to include any statement regarding the standard of care for Sugiyama’s and Mansour’s alleged malpractice also makes the notice defective for vicarious liability claims against Spectrum Health based upon their malpractice. Because plaintiffs notice was defective in this regard, the statute of limitations for those claims was not tolled by § 5856(c). Moreover, because the statute of limitations was not tolled, and because plaintiffs complaint was filed more than two years after the alleged malpractice, these claims are time-barred and should be dismissed with prejudice.
B. RESPONSE TO THE MAJORITY
The majority’s interpretation is at odds with its own assertion that “[t]he statute must be interpreted in a manner that ensures that it works in harmony with the entire statutory scheme.” Ante at 167. By focusing only on the amended language in the notice-tolling provision’s first clause, the majority disregards the implications of the remaining portion of the provision. Ante at 169-170. Such an analysis is incomplete in light of the direct correlation that the remaining portion of the
This tension arises most clearly in the form of MCL 600.2301, which the majority employs to sustain its conclusion that a defective notice can toll the statute of limitations, because a court can thereby “disregard any error or defect” in the notice. MCL 600.2301 provides:
The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties. [Emphasis added.]
Without reference to any language from the tolling or notice statutes, the majority ascertains that a “good-
As this Court explained in Boodt, 481 Mich at 563 n 4, “§ 2301 only applies to pending actions.” As discussed above, § 2912b(1) provides that a person “shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.” Section 2912b (4) states that the “notice given to a health professional or health facility under this section shall contain a statement of at least all of the following.. ..” Therefore, “a plaintiff cannot commence an action before he or she files a notice of intent that contains all the information required under § 2912b(4).” Boodt, 481 Mich at 562-563. An action is not “pending” if it cannot be “commenced,” and § 2912b(l) clearly prohibits a plaintiff from commencing an action before giving sufficient notice. I would not allow a plaintiff who is out of compliance with § 2912b, and thus not in compliance with the medical malpractice reforms enacted by our Legislature, to take advantage of the amendment provision. Accordingly, § 2301 is inapplicable, and a plaintiff cannot retroactively “amend” the notice of intent, and the courts cannot “disregard any error or defect” in the notice of intent.
Although I disagree in almost all respects with the majority’s analysis regarding the amended notice-tolling provision, I note in particular the following difficulties with this analysis:
(1) The majority states that it “cannot assume that language chosen by the Legislature is inadvertent” or
While in many and perhaps most instances it undoubtedly is the legislative intent, in enacting an amendment, to change existing law, there are, as undoubtedly, other instances, particularly if uncertainty exists as to the meaning of a statute, when amendments are adopted for the purpose of making plain what the legislative intent had been all*197 along from the time of the statute’s original enactment. [Detroit Edison Co v Janosz, 350 Mich 606, 614; 87 NW2d 126 (1957).]
Indeed, it seems most reasonable that the Legislature’s minimal changes to the notice-tolling provision were intended only to clarify the precise moment at which the statute of limitations would be tolled. The preamendment version, by stating that the “statutes of limitations or repose are tolled. . . [i]f, during the applicable notice period under section 2912b, a claim would be barred by the statute of limitations or repose,” MCL 600.5856(d); clearly described the circumstances by which the statute of limitations could be tolled, but was less clear regarding at what point in time the tolling actually began. Conversely, the other tolling provisions did not suffer from this same infirmity by stating that the “statutes of limitations or repose are tolled . . . [a]t the time” a specific action occurred. See pre-amendment MCL 600.5856(a) through (c). With this amendment, the Legislature changed the notice-tolling provision so that it too now states that the tolling starts “[a]t the time” the specified action occurs. In light of the identity to the other tolling provisions created by the amendment, I believe the amendment is best interpreted as effecting the same meaning that the identical language carries. Adding the phrase “[a]t the time” clearly denotes that the tolling begins upon the occurrence of the specified act. Interpreting the amendment as such clarification does not render it “inadvertent.” Ante at 169. Instead, this recognizes that the Legislature sought to enhance the clarity of the notice-tolling provision to the level of the other provisions and did so through a minor alteration.
(2) The majority creates a new standard for determining whether a notice complies with § 2912b(4) by
(3) The majority’s amendment process allows a plaintiff to commence his action 182 days after giving defective notice despite the fact that § 2912b(l) disallows a plaintiff from commencing suit unless he has given “written notice under this section.” In other words, the majority has rewritten § 2912b(l) to enable a plaintiff to commence his suit 182 days after giving defective notice if it manifests the plaintiffs “good-faith attempt to comply with § 2912b(4).” Ante at 178. Cf. Roberts I, 466 Mich at 66 (holding that a “plaintiff must fulfill the preconditions of § 2912b(4) in order to maintain a medical malpractice action”). By this revision, the ma
(4) The majority questions in dictum “whether Roberts I and Boodt were correctly decided” based on its interpretation of the amended notice-tolling provision, ante at 175 n 34, even after acknowledging that those cases “relied on language of a statute that is no longer in existence,” ante at 166. The majority’s disagreement with Boodt seems to be based largely on its misunderstanding of that decision. Boodt held that a plaintiffs complaint does not toll the statute of limitations pursuant to § 5856(a) after defective notice has been given, because § 2912b(l) disallows a plaintiff from commencing an action unless the plaintiff has given “written notice under this section.” Boodt, 481 Mich at 564. The majority, however, interprets Boodt as holding that “no
(5) By finding that § 2912b “is silent regarding the consequences of filing a defective NOI” and “makes no reference whatsoever to a mandatory dismissal penalty in the event of a defect,” the majority raises an irrelevant issue concerning “whether a mandatory dismissal with prejudice under § 2912b was the intent of the Legislature.” Ante at 172-173. However, this Court has never held that a defective notice alone requires “mandatory dismissal with prejudice.” By phrasing its in
First, the majority overlooks the interplay between the statute of limitations and the notice-tolling provision. The Legislature clearly created a two-year limitations period for medical malpractice actions, and then clearly stated that an action cannot be commenced after that period has expired. It also clearly created a tolling provision that allows the limitations period to be suspended if a claimant gives notice pursuant to § 2912b. If notice is not given, then tolling is not triggered. If tolling is not triggered and the statute of limitations expires, the latter operates in the same manner that it does in every other action: it bars claims from being commenced after its expiration.
Second, even if a defective notice does not toll the statute of limitations, this Court has never held that the defect requires “mandatory dismissal with prejudice.” Ante at 173 (emphasis added).
Here, rather than not tolling because there were more than 182 days remaining in the limitations period, plaintiffs notice, filed within the last 182 days of the limitations period, did not toll because it was defective. Although plaintiff only had two days in which to correct the defects, had he done so within that time, the statute of limitations would have been tolled and he could have timely commenced his action after the 182-day waiting period. Thus, any time a defective notice is filed, the plaintiff always has the opportunity to revise the notice to comply with § 2912b (4), at least until the expiration of the statute of limitations, and the defect alone does not mandate dismissal with prejudice.
(6) Without regard to the fact that a provision for “mandatory dismissal with prejudice” is unnecessary in § 2912b due to the dismissal necessitated by the statute of limitations, the majority proceeds with its misguided, and fruitless, search for direction from the Legislature that a defective notice requires “mandatory dismissal with prejudice.” Unsurprisingly, the majority finds no such mandate, but rather concludes that the Legislature rejected a “mandatory dismissal” based on its interpretation of a provision of the initial notice legislation that the Legislature never adopted. Ante at 173.
Although “actions of the Legislature in considering various alternatives in language in statutory provisions before settling on the language actually enacted” may constitute a legitimate form of legislative history, In re Certified Question, 468 Mich 109, 115 n 5; 659 NW2d 597 (2003), the majority’s use of it here exemplifies well the shortcomings inherent in such approach. To reasonably discern legislative intent from rejected language,
Except as otherwise provided in this subsection, in an action alleging medical malpractice, the court shall dismiss a claim not included in the notice required under section 2912f. This subsection does not apply to a claim that results from previously unknown information gathered during discovery.
As an initial matter, this seems entirely unrelated to the statute of limitations under which dismissal is granted. The Legislature’s rejection of an unrelated provision can hardly be used to alter the clear meaning of a statute. It seems far more reasonable to conclude that the Legislature rejected this provision in favor of § 2912b(3), which provides for similar treatment of the same subject matter: undiscovered claims.
(7) The majority concludes that “[t]o hold that § 2912b in and of itself mandates dismissal with prejudice . . . would be inconsistent with” § 2912b’s “stated purpose of. . . ‘promoting settlementAnte at 174-175 (citation omitted). However, the majority does not explain how allowing a defective notice to substitute for the notice required by § 2912b(4) in any way “ ‘promotes] settlement.’ ” Ante at 174. The likelihood of settlement almost certainly increases with the amount of information that the parties have regarding the subject of settlement. How can the majority’s interpretation conceivably encourage settlement when it compels defendants to proceed on the basis of incomplete information?
IV WAITING PERIOD
The second major issue concerns how long a plaintiff must wait after giving notice before filing his complaint. The relevant statutory provisions state:
(1) Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.
(7) Within 154 days after receipt of notice under this section, the health professional or health facility against whom the claim is made shall furnish to the claimant or his or her authorized representative a written response that contains a statement of each of the following:
(a) The factual basis for the defense to the claim.
*205 (b) The standard of practice or care that the health professional or health facility claims to be applicable to the action and that the health professional or health facility complied with that standard.
(c) The manner in which it is claimed by the health professional or health facility that there was compliance with the applicable standard of practice or care.
(d) The manner in which the health professional or health facility contends that the alleged negligence of the health professional or health facility was not the proximate cause of the claimant’s alleged injury or alleged damage.
(8) If the claimant does not receive the written response required under subsection (7) within the required 154-day time period, the claimant may commence an action alleging medical malpractice upon the expiration of the 154-day period. [MCL 600.2912b.]
After receiving plaintiffs notice, Shabahang responded, but his response did not satisfy the requirements of § 2912b(7).
A plaintiff can file his suit after 154 days if he “does not receive the written response required under subsection (7)” within 154 days after giving notice. MCL 600.2912b(8). Importantly, the response a plaintiff must receive is that “required under subsection (7),” which clearly states that the defendant “shall furnish” a
However, to require a plaintiff to wait for a judicial determination regarding the sufficiency of defendant’s response would effectively nullify the requirements of § 2912b(7). That is, a defendant could give a response that failed to comply with § 2912b(7) and suffer no consequences, because the only possible statutory consequence, plaintiffs early filing, would be unavailable until the court determined that the defendant’s response was defective, and by that time, the 28 days between the 154-day period and the 182-day period would almost certainly have elapsed. Accordingly, plaintiff here properly filed his complaint against Shabahang based on his own determination that he never received the response required by § 2912b(7).
Rather than adopting this straightforward understanding of § 2912b(8), the majority feels the need to additionally read into the law an entirely concocted and gratuitous “good faith” standard in determining whether the defendant’s response is sufficient. That is, rather than assessing the defendant’s response, and comparing it to the requirements of the statute, a plaintiff must now consider whether defendant’s re
V CONCLUSION
In summary, my concerns with the majority opinion are: (1) it ignores the great bulk of the language of the notice-tolling provision in interpreting that provision; (2) it ignores the larger statutory scheme within which the notice-tolling provision is located; (3) it creates a new “rule” whereby legislative amendments must be interpreted to alter the meaning of the amended statute even if the statute’s clear language suggests otherwise; (4) it creates a new standard for determining a notice’s
I dissent and would hold that tolling can only be effected pursuant to § 5856(c) by a plaintiffs notice of intent that complies with the requirements of § 2912b(4). Accordingly, dismissal should be with prejudice with regard to West Michigan Cardiovascular and Spectrum Health, because plaintiffs notice did not toll the statute of limitations for those claims and his complaint was filed after the limitations period had expired. Further, I would hold that a plaintiff may commence an action 154 days after giving notice if the defendant’s response does not comply with the requirements of § 2912b (7), rather than introducing a new “good faith” requirement in assessing such response. Because Shabahang’s response did not comply with the requirements of § 2912b(7), plaintiff properly commenced his action 175 days after giving notice.
Plaintiff did not appeal this decision and thus it is not before the Court.
The court also granted summary disposition in favor of Spectrum Health on the negligence claims based on Spectrum Health’s physician’s assistants because plaintiff failed to file a conforming affidavit of merit with those claims.
The statute of limitations for medical malpractice claims provides that a person “shall not bring or maintain an action to recover damages for injuries to persons or property unless... the action is commenced within [2 years].” MCL 600.5805(1) and (6).
Tolling extends the time during which a claim can be brought by temporarily suspending the statute of limitations.
MCL 600.2912b(l) states:
Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.
Generally, this is known as the notice-tolling provision.
2004 PA 87 amended MCL 600.5856. The amendment deleted previous subsection (c).
MCL 600.2912b(4) states:
The notice given to a health professional or health facility under this section shall contain a statement of at least all of the following:
(a) The factual basis for the claim.
(b) The applicable standard of practice or care alleged by the claimant.
(c) The manner in which it is claimed that the applicable standard of practice or care was breached by the health professional or health facility.
(d) The alleged action that should have been taken to achieve compliance with the alleged standard of practice or care.
*191 (e) The manner in which it is alleged the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice.
(f) The names of all health professionals and health facilities the claimant is notifying under this section in relation to the claim.
The major change made to MCL 600.5856 was the amendment to the provision that begins tolling when a complaint is filed. That provision now states that “[t]he statutes of limitation or repose are tolled . . . [a]t the time the complaint is filed, if a copy of the summons and complaint are served on the defendant within the time set forth in the supreme court rules.” MCL 600.5856(a). Previously, the statute of limitations was tolled “ [a]t the time the complaint is filed and a copy of the summons and complaint are served on the defendant.” The amendment also completely deleted previous subsection (c), which allowed tolling when the complaint was filed and “placed in the hands of an officer for immediate service.” This reflects the Legislature’s focus on returning complaint tolling to the way it previously operated, which Gladych v New Family Homes, Inc, 468 Mich 594; 664 NW2d 705 (2003), found inconsistent with the preamendment version of § 5856(a).
The majority provides no guidance regarding how lower courts should evaluate “good faith,” beyond the dubious guidance afforded by its conclusion in this case that plaintiffs notice meets this threshold even though the majority agrees that plaintiff wholly omitted the statements required by § 2912b(4)(b) through (e) for direct liability claims against Spectrum Health and West Michigan Cardiovascular and those required by § 2912b(4)(b), (c), and (e) for vicarious liability claims against Spectrum Health. Ante at 178-180, citing 278 Mich App at 711, 716-717. The only real guidance that can be gleaned from this conclusion is that the Legislature’s words are no longer much relevant to understanding the law of this state.
The Court’s decision in Roberts I that the pre-amendment notice-tolling provision required notice compliant with § 2912b to toll was supported by all seven justices, including three currently in the majority who now question it. See Roberts I, 466 Mich at 67; id. at 72 (Kelly, J., dissenting) (“[T]o begin the tolling of the MCL 600.5856(d) statute of limitations, a plaintiff must fully comply with the requirements of MCL 600.2912b.”).
This Court has held that “dismissal is an appropriate remedy for noncompliance with the notice provisions.” Burton v Reed City Hosp Corp, 471 Mich 745, 753; 691 NW2d 424 (2005). Whether the dismissal is with prejudice depends on whether the plaintiff can “still comply with the applicable statute of limitations.” Id.
MCL 600.2912b(3) provides a shortened notice period for a claim not in the initial notice only if the plaintiff “did not identify, and could not reasonably have identified a health professional or health facility to which notice must be sent” before filing the complaint against the other parties.
Shabahang’s response clearly did not satisfy the substantive requirements of § 2912b(7), because it was completely unresponsive to those requirements. See ante at 182-183.
A plaintiff makes such determination at his own peril. If a court later determines that the response was not defective, then the plaintiffs complaint is subject to dismissal because he did not wait the full 182 days.
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