Argued May 5, 2015.
[Copyrighted Material Omitted]
For LISA TYRA, Plaintiff-Appellee: MARK GRANZOTTO, BERKLEY, MI; DONALD M. CUTLER, BLOOMFIELD HILLS, MI.
For ORGAN PROCUREMENT AGENCY OF MICHIGAN, Defendant-Appellee: KAREN A. SMYTH, BLOOMFIELD HILLS, MI.
For STEVEN COHN MD, WILLIAM BEAUMONT HOSPITAL, Defendants-Appellees: JULIE MCCANN O'CONNOR, BLOOMFIELD HILLS, MI.
For DILLIP SAMARA PUNGAVAN MD, JOHN DOE, Defendants: JULIE MCCANN O'CONNOR, BLOOMFIELD HILLS, MI.
Chief Justice: Robert P. Young, Jr. Justices: Stephen J. Markman, Mary Beth Kelly, Brian K. Zahra, Bridget M. McCormack, David F. Viviano, Richard H. Bernstein. VIVIANO, J. concurring in part and dissenting in part.
[498 Mich. 74] BEFORE THE ENTIRE BENCH
Stephen J. Markman, J.
At issue here is whether Zwiers v Growney, 286 Mich.App. 38; 778 N.W.2d 81 (2009), was overruled by this Court in Driver v Naini, 490 Mich. 239; 802 N.W.2d 311 (2011). The Court of Appeals held that Zwiers was not overruled in Driver. Because we conclude to the contrary, we reverse the judgment of the Court of Appeals in part in both Tyra v Organ Procurement Agency of Mich., 302 Mich.App. 208; 840 N.W.2d 730 (2013), and Furr v McLeod, 304 Mich.App. 677; 842 N.W.2d 465 (2014). In Tyra, we reinstate the trial court's order granting defendants' motion for summary disposition, and in Furr, we remand to the trial court for entry of an order granting defendants' motion for summary disposition.
I. FACTS AND HISTORY
On June 9, 2007, plaintiff, Lisa Tyra, received a kidney transplant at defendant William Beaumont Hospital, with a kidney made available by defendant [498 Mich. 75] Organ Procurement Agency of Michigan (Organ Procurement). Plaintiff allegedly suffered complications because the kidney did not constitute a proper match, and she now asserts that defendants should have identified this fact before the surgery. On April 23, 2009, plaintiff sent defendants a timely notice of intent (NOI) to file a medical malpractice action. On August 13, 2009, 112 days after sending the NOI, plaintiff filed her complaint against defendants. When plaintiff filed her complaint, the 182-day notice period set forth in MCL 600.2912b(1) had not yet expired, and on January 13, 2010, Organ Procurement moved for summary disposition on the basis that plaintiff's complaint was filed prematurely, i.e., before the expiration of the 182-day notice period, and the period of limitations had since expired. The hospital and Dr. Steven Cohn, the transplant surgeon, joined the motion on March 19, 2010, and on May 20, 2010, the trial court granted the motion. The trial court reasoned that, under Burton v Reed City Hosp Corp, 471 Mich. 745; 691 N.W.2d 424 (2005), the prematurely filed complaint failed to toll the running of the period of limitations and plaintiff could not cure the error by refiling the complaint.
On August 15, 2013, a divided Court of Appeals reversed the grant of summary disposition. Tyra, 302 Mich.App. 208; 840 N.W.2d 730. The Court of Appeals majority concluded that Driver had not overruled Zwiers and " on the basis of both Zwiers and the purpose behind MCL 600.2301, [498 Mich. 76] the trial court erred by failing to at least consider the possibility of allowing plaintiff to amend her complaint . . . ." Id. at 226. The Court accordingly remanded to allow " the trial court [to] exercise its discretion by either granting or denying that amendment pursuant to MCL 600.2301 and Zwiers." Id. at 227. Judge Wilder dissented on the basis that " Zwiers was undermined by the Supreme Court's subsequent
decision in Driver. . . ." Id. at 231 (Wilder, P.J., dissenting).
Defendants (in two separate applications) sought leave to appeal in this Court, arguing that the Court of Appeals erred by concluding that Zwiers remained valid after Driver. We directed that oral argument be heard on defendants' applications for leave to appeal and instructed the parties to address " whether Zwiers v Growney, 286 Mich.App. 38; 778 N.W.2d 81 (2009), was overruled by this Court's decision in Driver v Naini, 490 Mich. 239; 802 N.W.2d 311 (2011), and whether the defendant's affirmative defenses were defective because they did not specifically state the grounds for the defense." Tyra v Organ Procurement Agency, 497 Mich. 909, 909-910, 856 N.W.2d 70 (2014).
On April 4, 2008, plaintiff Susan Furr allegedly suffered a severed nerve during surgery at defendant Borgess Medical Center. On April 4, 2010, plaintiff and her husband William Furr sent defendants a timely NOI to file a medical malpractice action. On September 30, 2010, 179 days after sending the NOI, plaintiffs filed their complaint against defendants. When plaintiffs [498 Mich. 77] filed their complaint, the 182-day notice period set forth in MCL 600.2912b(1), as in Tyra, had not yet expired. On November 24, 2010, defendants moved for summary disposition on the basis that plaintiffs' complaint was filed prematurely, i.e., before expiration of the 182-day notice period, and that the statute of limitations, also as in Tyra, had since expired. On January 31, 2011, and again on May 22, 2012, after the Court of Appeals remanded for reconsideration in light of Driver, the trial court denied defendants' motion, citing Zwiers for the proposition that MCL 600.2301 permits a trial court to ignore noncompliance with MCL 600.2912b(1) when a defendant's substantial rights are not prejudiced.
On October 24, 2013, a divided Court of Appeals panel affirmed the trial court. Furr v McLeod, 303 Mich.App. 801 (2013). In his lead opinion, Judge Whitbeck asserted that but for Tyra, he would have reversed the trial court and held that Driver overruled Zwiers. Judge Whitbeck therefore requested the convening of a conflict-resolution panel. Judge M. J. Kelly, concurring, disagreed with Judge Whitbeck's analysis, but agreed that a conflict panel should be convened. Judge Owens wrote a separate opinion, concurring in the result, but noting his own conclusion that Tyra was decided correctly. A conflict-resolution panel was convened and, pursuant to MCR 7.215(J)(5), the Court's original judgment in Furr was vacated. Furr, 303 Mich.App. 801. In a 4-3 decision, the Court of Appeals conflict panel then affirmed the trial court. Furr, 304 Mich.App. 677; 842 N.W.2d 465. The Court majority was " not [498 Mich. 78] prepared to hold that Driver overruled Zwiers by implication." Id. at 706. The dissenting judges would have reversed the trial court on the basis that Driver did overrule Zwiers. Id. at 706-707
(O'Connell, J., dissenting); id. at 707 (Meter, J., dissenting).
Defendants sought leave to appeal, arguing that the conflict panel erred by ruling that Driver did not overrule Zwiers. This Court directed that oral argument be heard on defendants' application and directed the parties to address " whether Zwiers v Growney, 286 Mich.App. 38; 778 N.W.2d 81 (2009), was overruled by this Court's decision in Driver v Naini, 490 Mich. 239; 802 N.W.2d 311 (2011)." Furr v McLeod, 497 Mich. 910; 856 N.W.2d 74 (2014). Oral arguments in Tyra and Furr were heard on May 5, 2015.
II. STANDARD OF REVIEW
This Court reviews de novo decisions on motions for summary disposition. IBM v Treasury Dep't, 496 Mich. 642, 647; 852 N.W.2d 865 (2014). This Court also reviews de novo issues of statutory interpretation. Id.
MCL 600.2912b(1) requires that the plaintiff in a medical malpractice action give the defendant written notice of the plaintiff's intent to file a claim before commencing a medical malpractice action against the defendant. After providing the NOI, the plaintiff must wait for the applicable notice period, usually 182 days, to pass before the plaintiff can file the medical malpractice action. MCL 600.2912b(1) provides:
[498 Mich. 79] Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced. [Emphasis added.]
" In a medical malpractice action, a claimant normally has two years from the time his claim accrues to commence a suit." Driver, 490 Mich. at 249, citing MCL 600.5838a(2) and MCL 600.5805(1) and (6). However, under MCL 600.5856(c), the running of the two-year period of limitations is tolled during the notice period. In addition, under MCL 600.5856(a), the filing of a complaint with the required affidavit of merit after the notice period has elapsed also tolls the running of the period of limitations. MCL 600.5856 provides, in pertinent part:
The statutes of limitations or repose are tolled in any of the following circumstances:
(a) At the time the complaint is filed, if a copy of the summons and complaint are served on the defendant within the time set forth in the supreme court rules.
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[498 Mich. 80]
(c) At the time notice is given in compliance with the applicable notice period under section 2912b, if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days ...