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Tyra v. Organ Procurement Agency of Michigan

Supreme Court of Michigan

July 22, 2015

LISA TYRA, Plaintiff-Appellee,
v.
ORGAN PROCUREMENT AGENCY OF MICHIGAN, d/b/a GIFT OF LIFE MICHIGAN, Defendant-Appellant, and STEVEN COHN, M.D., and WILLIAM BEAUMONT HOSPITAL, Defendants-Appellees, and DILLIP SAMARA PUNGAVAN, M.D., and JOHN DOE, Defendants. LISA TYRA, Plaintiff-Appellee,
v.
ORGAN PROCUREMENT AGENCY OF MICHIGAN, d/b/a GIFT OF LIFE MICHIGAN, Defendant-Appellee, and STEVEN COHN, M.D., and WILLIAM BEAUMONT HOSPITAL, Defendants-Appellants, and DILLIP SAMARA PUNGAVAN, M.D., and JOHN DOE, Defendants. SUSAN FURR and WILLIAM FURR, Plaintiffs-Appellees/Cross-Appellants,
v.
MICHAEL MCLEOD, M.D., TARA B. MANCL, M.D., MICHIGAN STATE UNIVERSITY KALAMAZOO CENTER FOR MEDICAL STUDIES, INC., and BORGESS MEDICAL CENTER, Defendants-Appellants/Cross-Appellees

Argued May 5, 2015.

Page 214

[Copyrighted Material Omitted]

Page 215

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.

OPINION

[498 Mich. 74] BEFORE THE ENTIRE BENCH

Page 216

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

A. TYRA

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.[1] 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.[2] 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

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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).

B. FURR

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[3] sent defendants a timely NOI to file a medical malpractice action.[4] 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.[5] 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.[6] 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

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(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.

III. ANALYSIS

A. BACKGROUND

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.[7] 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.[8] 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.
* * *
[498 Mich. 80]

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(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.

Finally, MCL 600.2301, a statute of general applicability, 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.]

In Burton, 471 Mich. at 745, this Court held that " [a] complaint filed before the expiration of the notice period violates MCL 600.2912b and is ineffective to toll the limitations period," id. at 747, because " the failure to comply with the statutory requirement renders the complaint insufficient to commence the action," id. at 754, because MCL 600.2912b " unequivocally provides that a person 'shall not' commence an action alleging medical malpractice against a health professional or health facility until the expiration of the statutory notice period," id. at 752. Burton further held that " dismissal is an appropriate remedy for noncompliance with the notice provisions of MCL 600.2912b and that when a case is dismissed, the plaintiff must still comply with the applicable statute of limitations." Id. at 753. Therefore, if the statute of limitations has already expired, the case must be dismissed with prejudice.

[498 Mich. 81] In Boodt v Borgess Med Ctr, 481 Mich. 558, 562-564; 751 N.W.2d 44 (2008), this Court held that " a plaintiff cannot commence an action before he or she files a notice of intent that contains all the information required under [MCL 600.2912b(4)]," and accordingly, " the filing of the complaint and the affidavit of merit that plaintiff was not yet authorized to file [because the NOI did not contain all the required information] could not possibly have tolled the period of limitations." Boodt further held that MCL 600.2301, which allows the court " to amend any process, pleading or proceeding" and to " disregard any error or defect in the proceedings," only applies to " pending" actions and " because the notice of intent was deficient, no action [was] pending . . . ." Id. at 563 n 4.

In Bush v Shabahang, 484 Mich. 156, 161; 772 N.W.2d 272 (2009), this Court held that, under the 2004 amendments of MCL 600.5856, " if an NOI is timely, the statute of limitations is tolled despite defects contained therein." Bush further held that MCL 600.2301 " may be employed to cure defects in an NOI." Id. at 177.[9] Specifically, MCL 600.2301 " allows for amendment and disregard of 'any error or defect' where the substantial rights of the parties are not affected and the cure is in the furtherance of justice." Id. at 161. " A cure is in the furtherance of justice when a party makes a good-faith attempt to comply with

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the content requirements of [MCL 600.2912b]." Id. at 185.

In Zwiers, 286 Mich.App. at 52, the Court of Appeals, relying on Bush and MCL 600.2301, held that " [u]nder [498 Mich. 82] the circumstances of this case in which a complaint was inadvertently filed one day early on a 182-day waiting period and in which no one was harmed or prejudiced by the premature filing, it would simply constitute an injustice to deprive plaintiff of any opportunity to have the merits of her case examined and addressed by a court of law." Therefore, the court reversed the trial court's order granting the defendants' motion for summary disposition, " reinstated" the plaintiff's medical malpractice suit, and " remanded for further proceedings consistent with this opinion." Id. at 52-53.[10]

This Court denied the defendants' subsequent application for leave to appeal. Zwiers v Growney, 486 Mich. 1058; 783 N.W.2d 514 (2010). Three Justices would have reversed the Court of Appeals for the reasons stated in the dissenting statement in Ellout v Detroit Med Ctr, 486 Mich. 1058; 783 N.W.2d 388 (2010). Zwiers, 486 Mich. at 1058 (Markman, J., dissenting). Ellout involved the identical issue and was decided on the same day as Zwiers. The dissent in Ellout stated:

Bush is inapplicable here because it involved the filing of a defective notice of intent, while this case involves the filing of a complaint before the notice period expired. MCL 600.2301 is also inapplicable here because it only applies to " pending" actions, and there was no " pending" action here because a timely complaint had never been filed. As this Court recognized in Burton, MCL 600.2912b(1) unambiguously [498 Mich. 83] states that a person " shall not commence an action" until the notice period has expired. Because plaintiff was not authorized to commence this action when she filed the complaint, no action has been commenced, and, thus, there is no pending action. As this Court explained in Boodt v Borgess Med Ctr, 481 Mich. 558, 564; 751 N.W.2d 44 (2008), if a plaintiff fails to file a notice of intent that complies with the statutory requirements, that plaintiff is not authorized to file a complaint.
Furthermore, allowing plaintiff to file a complaint before the notice period has expired would affect defendants' substantial rights because it would deprive them of the 154 or 182 days of notice that the statute clearly entitles them to.
Burton and Boodt have not been overruled, and, thus, are still good law; and the Court of Appeals clearly did not follow Burton and Boodt. Therefore, I would reverse the Court of Appeals. [ Ellout, 486 Mich. at 1059 (Markman, J., dissenting) (emphasis added).]

In Driver, 490 Mich. at 243, we held that " a plaintiff is not entitled to amend an original NOI to add nonparty defendants so that the amended NOI relates back to the original filing for purposes of tolling the statute of limitations . . . ." Driver explained that " [t]he Bush majority held that when an NOI fails

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to meet all of the content requirements under MCL 600.2912b(4), MCL 600.2301 allows a plaintiff to amend the NOI and preserve tolling unless the plaintiff failed to make a good-faith effort to comply with MCL 600.2912b(4)." Id. at 252-253. Accordingly, Driver held that " the holding in Bush that a defective yet timely NOI could toll the statute of limitations simply does not apply here because CCA [the nonparty defendant] never received a timely, albeit defective, NOI." Id. at 253. Concerning the effect of Bush on Burton, Driver explained:

[498 Mich. 84] 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 plaintiff's 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. [ Id. at 257-258 (citations omitted).]

Driver also held that " MCL 600.2301 is inapplicable because there was no action or proceeding pending against CCA" because the " plaintiff's claim was already time-barred when he sent the NOI" ; and " [a]n action is not pending if it cannot be commenced," and " [b]y its plain language, MCL 600.2301 only applies to actions or proceedings that are pending." Id. at 254 (quotation marks and citation omitted). Finally, Driver noted that " amendment of the original NOI to allow plaintiff to add CCA would not be 'for the furtherance of justice' and would affect CCA's 'substantial rights,'" because it would " deprive CCA of its statutory right to a timely NOI followed by the appropriate notice waiting period" and " CCA would also be denied its right to a statute-of-limitations defense." Id. at 254-255 (quotation marks and citations omitted).

In Tyra, 302 Mich.App. at 220-221, the Court of Appeals reluctantly relied on this Court's decision in Burton, and held that " a medical malpractice complaint filed prior to the expiration of the MCL 600.2912b waiting period does not commence the action and does not toll the running of the limitations period pursuant to MCL 600.5856(a)." The majority [498 Mich. 85] recognized that " Burton has not been overturned" and that " citing to Burton, our Supreme Court recently reaffirmed that 'when a plaintiff fails to strictly comply with the notice waiting period under MCL 600.2912b, his or her prematurely filed complaint fails to commence an action that tolls the statute of limitations.'" Tyra, 302 Mich.App. at 223, quoting Driver, 490 Mich. at 256.

However, relying on the Court of Appeals opinion in Zwiers and distinguishing Driver, the Court ultimately held that the Tyra plaintiff may be permitted to amend her complaint under MCL 600.2301. Specifically, the Court held that Driver is distinguishable because " [i]n Driver, the plaintiffs were barred from the initial step of the proceedings of filing the notice of intent, whereas here, there is no dispute that the notice of intent was proper" and that while " MCL 600.2301 cannot be used to create a filing out of whole cloth, . . . no such bootstrapping would occur here, where all the requisite documents actually

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exist." Tyra, 302 Mich.App. at 224. Relying on Zwiers and MCL 600.2301, the Court of Appeals remanded to the trial court for it to " examine whether the party seeking amendment lacked good faith and whether the party opposing amendment will suffer prejudice that cannot be remedied by a lesser sanction than dismissal." Id. at 226.

The Court of Appeals dissent, relying on Burton and Driver and believing that Zwiers was " significantly undermined by our Supreme Court's later decision in Driver," concluded that " plaintiff's complaint cannot be resurrected under MCL 600.2301." Tyra, 302 Mich.App. at 230 (Wilder, P.J., dissenting). The dissent explained:

[T]he limitations period expired without commencement of a medical malpractice action because plaintiff's complaint [498 Mich. 86] was filed prematurely. Since [a]n action is not " pending" if it cannot be [or was not] " commenced," 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 230 (quotation marks and citations omitted; alterations in original).]

In Furr, 303 Mich.App. 801, the Court of Appeals originally held that although the Furr plaintiffs filed their complaint before the end of the 182-day notice period, they could amend their prematurely filed complaint. In his lead opinion, however, Judge Whitbeck only reached that result because he concluded the Court was bound by Tyra. Judge Whitbeck asserted that Tyra was wrongly decided and called for a conflict-resolution panel. See MCR 7.215(J). Specifically, Judge Whitbeck believed that Driver overruled Zwiers because Driver held that " a plaintiff may only invoke MCL 600.2301 to correct a defective content requirement in the notice of intent." Id. at 809 (opinion by Whitbeck, J.).

In a split decision, the conflict panel held that Driver did not overrule Zwiers. Furr, 304 Mich.App. at 680. It further held that Driver is distinguishable from Zwiers, Tyra, and Furr because in Driver the plaintiff's claim was already time-barred when he sent the NOI, but " [i]n Zwiers, Tyra, and Furr, however, the NOIs were timely served on the defendants, so while actions had not been commenced because of the premature filing of complaints and no actions were therefore pending for purposes of MCL 600.2301, proceedings had been commenced given the timely NOIs and proceedings [498 Mich. 87] were therefore pending," and " MCL 600.2301 speaks of a pending 'action or proceeding.'" Id. at 694. The conflict panel held that Driver cannot be interpreted to mean that only content-based amendments are permitted under MCL 600.2301 because MCL 600.2301 " empowers a court to amend any process, pleading, or proceeding 'either in form or substance[.]'" Id. at 699, quoting MCL 600.2301 (alteration in original). The dissenting judges indicated that they were dissenting for the reasons stated in Judge Whitbeck's vacated opinion in Furr and in the dissenting opinion in Tyra. Id. at 706-707 (O'Connell, J., dissenting). Judge Meter separately indicated that although he was a member of the panel that decided Zwiers, he believed that Driver

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overruled Zwiers.[11] Id. at 707 (Meter, J., dissenting).

B. AFFIRMATIVE DEFENSES

In Tyra, 497 Mich. at 910, we asked the parties to address " whether the defendants' affirmative defenses were defective because they did not specifically state the grounds for the defense." The Court of Appeals held that although the Tyra defendants did not adequately state the grounds for the affirmative defense of plaintiff's failure to comply with the notice period, that did [498 Mich. 88] not matter because this Court held in Auslander v Chernick, 480 Mich. 910; 739 N.W.2d 620 (2007),[12] that a plaintiff's failure to comply with the notice period remains available as a defense irrespective of whether the defendant adequately stated the grounds for the defense. Although the Tyra defendants appealed a different portion of the Court of Appeals' opinion, the Tyra plaintiff did not appeal this portion of the opinion. Indeed, the Tyra plaintiff has not even filed a brief in this Court. Because the Tyra plaintiff has not briefed the issue, it has been abandoned. People v McGraw, 484 Mich. 120, 131 n 36; 771 N.W.2d 655 (2009) ( " Failure to brief an issue on appeal constitutes abandonment." ). Although " the failure of an appellee to file a responsive brief may not properly be considered to be a confession of substantive error," People v Smith, 439 Mich. 948; 439 Mich. 954; 480 N.W.2d 908 (1992), appellees who have not cross-appealed " may not obtain a decision more favorable to them than was rendered by the Court of Appeals," McCardel v Smolen, 404 Mich. 89, 94-95; 273 N.W.2d 3 (1978).[13] See also In re MCI, 460 Mich. 396, 432; [498 Mich. 89] 596 N.W.2d 164 (1999) (" Appellee Ameritech has neither

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applied for leave to cross appeal on this issue, nor offered this argument as an alternative rationale to support the favorable ruling it received below. Accordingly, this issue, itself, is not properly before the Court." ); McGraw, 484 Mich. at 131 n 36 (" [W]e do not contend that an appellee is required to file a cross-appeal to raise a waiver argument. We simply conclude that an appellee should at some point actually raise the waiver argument. And if he or she does not do so, this Court may . . . choose not to raise and address the argument on its own." ). Given that the Tyra plaintiff has not briefed whether the Tyra defendants sufficiently pleaded their affirmative defenses, nor the relevance of this in light of Auslander, we need not address these issues and we will not do so here because plaintiff's abandonment of these issues has left us ill equipped to address the merits of these issues. See Wayne Co Employees Retirement Sys v Wayne Charter County, 497 Mich. 36, 41; 859 N.W.2d 678 (2014) (stating that " [t]he county's abandonment of the issue on appeal . . . has left us ill equipped to address the merits" of the issue).[14]

[498 Mich. 90] C. ZWIERS OVERRULED

In both Tyra, 497 Mich. at 909-910, and Furr, 497 Mich. at 910, this Court directed the parties to address whether Zwiers was overruled by Driver. We hold that Zwiers was so overruled. As discussed earlier in this opinion, Zwiers, 286 Mich.App. at 49, held that Bush and MCL 600.2301 can be used to save a medical malpractice action that was never commenced before the statute of limitations expired when the complaint was filed before the expiration of the NOI waiting period because " Bush makes it abundantly clear that MCL 600.2301 is applicable to the entire NOI process and any compliance failures under the NOI statute." (Emphasis added.) However, Driver, 490 Mich. at 258 n 68, held that " Bush repeatedly recognized that [an]

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NOI must be timely filed," [15] that Bush only held that [498 Mich. 91] MCL 600.2301 can be applied " when an NOI fails to meet all of the content requirements under MCL 600.2912b(4)," id. at 252, and that MCL 600.2301 only applies to pending actions or proceedings, id. at 264. Driver and Zwiers are clearly inconsistent with one another, and Driver controls over Zwiers. See People v Mitchell, 428 Mich. 364, 369; 408 N.W.2d 798 (1987) (" An elemental tenet of our jurisprudence, stare decisis, provides that a decision of the majority of justices of this Court is binding upon lower courts." ).

While Zwiers held that Bush altered our holding in Burton,[16] Driver, 490 Mich. at 257, expressly held that " [n]othing in Bush altered our holding in Burton." [17] As [498 Mich. 92] already discussed, Burton held that the filing of a complaint before the expiration of the NOI waiting period does not commence an action or toll the running of the period of limitations. Therefore, in the instant cases (as well as in Zwiers ), plaintiffs' filing of their complaints before the expiration of the NOI waiting period did not commence their actions or toll the running of the limitations period. And MCL 600.2301 cannot save plaintiffs' actions because MCL 600.2301 only applies to pending actions or proceedings and there never were pending actions in these cases. Plaintiffs' complaints, filed before the NOI waiting period expired, could not commence an action.

In addition, even assuming that a NOI does constitute part of a " proceeding," as Bush held, and, accordingly, that there were pending proceedings at the time plaintiffs filed their NOIs, the proceedings were no longer pending when the trial courts ruled on defendants' motions for summary disposition because the limitations periods had expired by that time.

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" A proceeding cannot be pending if it was time-barred . . . ." Driver, 490 Mich. at 254. As a result, MCL 600.2301 is inapplicable.

Moreover, ignoring the defects in these cases would not be " for the furtherance of justice" and would affect defendants' " substantial rights." MCL 600.2301. That is, just as in Driver, 490 Mich. at 255, " [a]pplying MCL 600.2301 in the present case[s] would deprive [defendants] of [their] statutory right to a timely NOI followed by the appropriate notice waiting period," and they " would also be denied [their] right to a statute-of-limitations defense." Therefore, even if MCL 600.2301 [498 Mich. 93] was applicable here, it should not be viewed as having been satisfied.

Finally, plaintiffs argue that under MCL 600.5856(a), which states that the statute of limitations is tolled " [a]t the time the complaint is filed," the running of the limitations periods in these cases was tolled once the complaints were filed, even though the complaints were filed prematurely. However, this argument has been repeatedly rejected by this Court. First, in Scarsella v Pollak, 461 Mich. 547, 552; 607 N.W.2d 711 (2000), we held that a complaint filed without an affidavit of merit does not toll the running of the limitations period because the contrary interpretation " would undo the Legislature's clear statement that an affidavit of merit 'shall' be filed with the complaint." (Citation omitted.) Later, in Burton, 471 Mich. at 747, we held that a complaint filed before the expiration of the notice period does not toll the running of the limitations period. And in Boodt, 481 Mich. at 562-564, this argument was rejected when we held that a complaint filed after the filing of a defective NOI does not toll the running of the period of limitations. As Boodt, 481 Mich. at 564, explained:

[P]laintiff failed to file a notice of intent that satisfied the requirements of [MCL 600.2912b(4)(e)], and, thus, plaintiff was not yet authorized to file a complaint and an affidavit of merit. Therefore, the filing of the complaint and the affidavit of merit that plaintiff was not yet authorized to file could not possibly have tolled the period of limitations.

Plaintiffs argue that these decisions should be overruled because they are inconsistent with MCL 600.1901, which states that " [a] civil action is commenced by filing a complaint with the court." This specific argument was addressed in a concurring statement [498 Mich. 94] to this Court's order denying the plaintiff's motion for rehearing in Boodt v Borgess Med Ctr, 482 Mich. 1001; 756 N.W.2d 78 (2008). As was stated:

[M]ore specific statutory provisions control over more general statutory provisions, and thus the specific requirements of [MCL 600.2912b(1)] regarding " commenc[ing] an action alleging medical malpractice" prevail over the general requirements of MCL 600.1901 regarding the commencing of civil actions. [ Boodt, 482 Mich. at 1002 (Markman, J., concurring) (third alteration in original).]

Although a civil action is generally commenced by filing a complaint, a medical malpractice action can only be commenced by filing a timely NOI and then filing a complaint and an affidavit of merit after the applicable notice period has expired, but before the period of limitations has expired. Because plaintiffs did not wait until the applicable notice period expired before they filed their complaints and affidavits of merit, they did not commence actions against defendants. Because the statute of limitations has since expired, plaintiffs' complaints must be dismissed with prejudice.

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IV. CONCLUSION

For these reasons, we reverse the Court of Appeals in part in both cases. 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.

CONCUR BY: David F. Viviano (In Part)

DISSENT

Viviano, J. ( concurring in part and dissenting in part ).

Two steps forward, one step back. That is how I [498 Mich. 95] would describe today's decision. Although it satisfactorily resolves the first issue in these appeals, the Court inexplicably leaves unresolved a compelling threshold issue raised by the plaintiff in Tyra v Organ Procurement Agency of Mich : if she is to be held to procedural requirements, so should defendants. More specifically, plaintiff[1] argued in the trial court that defendants waived the MCL 600.2912b notice-waiting-period affirmative defense because they failed to adequately plead it under MCR 2.111(F)(3). The Court of Appeals found merit in this argument, but determined that it was bound by Auslander v Chernick, 480 Mich. 910; 739 N.W.2d 620 (2007), an order from this Court relieving defendants in medical malpractice cases from pleading affirmative defenses in response to complaints that failed to comply with statutory prerequisites. Tyra v Organ Procurement Agency of Mich, 302 Mich.App. 208, 211-220; 850 N.W.2d 667 (2013). After initially requesting oral argument on this issue, the Court now holds in Part III(B) of the majority opinion that plaintiff " abandoned" this argument. I dissent from this part of the Court's opinion. I would address the merits of plaintiff's claim that defendants' affirmative defenses were inadequate under MCR 2.111(F)(3) and, in so doing, would reject defendants' argument that they are exempted from pleading the § 600.2912b affirmative defense under Auslander.

I. ISSUE ABANDONMENT

The majority holds that plaintiff " abandoned" her affirmative defense argument because she failed to appeal this aspect of the Court of Appeals decision and [498 Mich. 96] failed to file an answer to defendants' applications for leave to appeal. Both are true, but irrelevant and certainly no reason for the Court to take a pass on this issue.

First, plaintiff's failure to file a cross-appeal is a red herring. Having obtained a favorable decision in the Court of Appeals, plaintiff is not required--under the threat of " abandonment" --to file a separate application in order to press an alternative ground for affirmance. Middlebrooks v Wayne Co, 446 Mich. 151, 166 n 41; 521 N.W.2d 774 (1994) (" A cross appeal was not necessary to urge an 'alternative ground for affirmance.'" ). Contrary to the majority's implication, any decision holding that defendants waived the notice-waiting-period affirmative defense would not result in an outcome more favorable to plaintiff than that rendered by the Court of Appeals. Both holdings would result in a remand to the trial court for further proceedings.

Second, plaintiff's failure to file a written answer to defendants' applications is irrelevant. Our orders in this case specifically stated, " We direct the Clerk to schedule oral argument on whether to grant the application or take other action. At oral

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argument, the parties shall address. . . whether the [defendants'] affirmative defenses were defective because they did not specifically state the grounds for the defense." Tyra v Organ Procurement Agency of Mich, 497 Mich. 910; 856 N.W.2d 69, 70 (2014) (citation omitted; emphasis added). Plaintiff did exactly what was requested of her by this Court: plaintiff's counsel attended oral argument on defendants' applications and argued that defendants' affirmative defenses were inadequate and that Auslander was incorrectly decided. It is a perversity of the " abandonment" doctrine for this Court to avoid a preserved issue argued at the time and place directed by the [498 Mich. 97] Court. In these circumstances, plaintiff has primed the appellate pump sufficiently for us to address the issue.[2]

II. ADEQUACY OF DEFENDANTS' AFFIRMATIVE DEFENSES

Plaintiff argues that defendants' affirmative defenses were inadequate to put her on notice that she failed to comply with the notice-waiting-period requirement of MCL 600.2912b. Michigan's pleading standard is codified in MCR 2.111. With respect to pleading affirmative defenses, MCR 2.111(F)(3) provides that " a party must state the facts constituting" an affirmative defense. An affirmative defense is adequate under MCR 2.111(F)(3) as long as it reasonably apprises the plaintiff of the nature of the defense such that the plaintiff can take a responsive position. Hanon v Barber, 99 Mich.App. 851, 856; 298 N.W.2d 866 (1980); Ewing v Heathcott, 348 Mich. 250, 255; 83 N.W.2d 210 (1957). Put differently, an affirmative defense must be stated in sufficient factual detail to give the plaintiff fair notice of the defensive issues that the defendant will raise in the litigation.

With this standard in mind, and turning to the affirmative defenses alleged in this case, defendant Organ Procurement Agency of Michigan's (OPA) Affirmative Defense No. 11 stated:

11. Plaintiff failed to comply with the notice provisions of MCL 600.2912b; MSA 27A.2912b and that Plaintiff's [498 Mich. 98] action is thus barred; Defendant gives notice that it will move for summary disposition.

This defense certainly could have been more factually precise.[3] However, I am persuaded that it was specific enough to satisfy the pleading standard of MCR 2.111(F)(3). Affirmative Defense No. 11 alleged that plaintiff failed to comply with the " notice" provisions of § 600.2912b. Generally speaking, there are two ways in which a plaintiff can fail to comply with the notice requirements of § 600.2912b: timing or content. Here, it was clear that OPA was specifically referring to timing because, in the very next affirmative defense, OPA alleged a content deficiency. Affirmative Defense No. 12 alleged, " Plaintiff's claims are barred for failing to provide adequate information in her Notice of Intent as required by MCL 600.2912b." OPA's Affirmative Defense No. 11, when read in the context of the content-deficiency defense

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raised next, was sufficient to apprise plaintiff that the timing requirement of § 2912b was not satisfied and, thus, was sufficient to permit plaintiff to take a responsive position. See Hanon, 99 Mich.App. at 856 (" The primary function of a pleading is to give notice of the nature of the claim or defense sufficient to permit the opposite party to take a responsive position." ) (quotation marks and citations omitted). I would, therefore, hold that OPA's affirmative defense was adequate under MCR 2.111(F)(3).[4]

In contrast to OPA's affirmative defense, the affirmative defense alleged by defendants Steven Cohn, [498 Mich. 99] M.D., and William Beaumont Hospital (collectively, the Beaumont defendants) was plainly inadequate. Their Affirmative Defense No. 4 stated:

4. If necessary, Defendants assert all of the benefits of the provisions set forth in Michigan's tort Reform Acts of 1986, 1993, and 1995 regarding non-economic caps, offsets, reduction to present value, offsets for collateral payments, such as insurance, social security, etc., and any other damage reduction deemed applicable by the Michigan Appellate Courts in interpretation of these statutes.

In alleging everything, the Beaumont defendants alleged nothing at all. See Dacon v Transue, 441 Mich. 315, 330; 490 N.W.2d 369 (1992). Together, the four tort reform acts cited by the Beaumont defendants amended or added 90 statutory sections. See 1995 PA 249; 1995 PA 161; 1993 PA 78; 1986 PA 178. Global allegations like this do not provide reasonable notice to a plaintiff of how, why, or to what extent his or her cause of action is barred. It does not indicate the nature of the defense under MCL 600.2912b--indeed, it fails to mention the statute at all. Given this, it is virtually impossible for a plaintiff to take a responsive position to such a broad allegation as that set forth in Affirmative Defense No. 4.[5] For this reason, the Beaumont defendant's affirmative defense was inadequate under MCR 2.111(F)(3) and should be deemed waived.

The Beaumont defendants argue that this Court should nevertheless affirm the trial court's grant of summary disposition in their favor because, under our decision in Auslander, they were not obligated to raise [498 Mich. 100] the affirmative defense in the first place.[6] Indeed, the Court of Appeals was poised to hold that defendants waived their affirmative defenses, but stopped short of reversing the trial court because it was bound by our order in Auslander. Under no similar obligation to follow incorrectly decided cases from this Court, and seeing no basis in law or logic justifying Auslander, I would reject defendants' argument and overrule Auslander.

III. THE VALIDITY OF AUSLANDER

In Auslander, this Court held that medical malpractice defendants have no obligation

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to plead affirmative defenses in response to a complaint that failed to comply with statutory prerequisites. Our decision consisted of adopting the unpublished Court of Appeals dissenting opinion, which stated in relevant part: " I conclude that defendants were never required to raise or plead their asserted defenses in the first instance because this medical malpractice action was never properly commenced." Auslander v Chernick, unpublished opinion per curiam of the Court of Appeals, issued May 1, 2007 (Docket No. 274079) (Jansen, J., dissenting).

Any discussion of Auslander should begin with a description of what it actually is: an exception to the general rule. In Michigan, the general rule is that affirmative defenses must be raised in the responsive [498 Mich. 101] pleading or they are waived. MCR 2.111(F)(3) (" Affirmative defenses must be stated in a party's responsive pleading . . . ." ); Walters v Nadell, 481 Mich. 377, 389; 751 N.W.2d 431 (2008). An " affirmative defense" is a defense that does not refute the plaintiff's case on the merits, but which otherwise seeks to deny relief to the plaintiff for reasons unrelated to the plaintiff's prima facie case. See Campbell v St John Hosp, 434 Mich. 608, 616; 455 N.W.2d 695 (1990). Asserting noncompliance with § 600.2912b--or any statutory precondition--does just that by alleging that the plaintiff is not entitled to relief based on his or her failure to comply with a procedural prerequisite. Therefore, this defense must be pleaded in a responsive pleading under the plain language of our court rules. MCR 2.111(F)(3).

Auslander stands for the broad proposition that if a complaint is ineffective at commencing the action, the defendant has no obligation to file affirmative defenses, or an answer for that matter. The legal basis for the Auslander exception was our holding in Burton v Reed City Hosp Corp, 471 Mich. 745; 691 N.W.2d 424 (2005), and other cases that a complaint filed in noncompliance with statutory prerequisites does not commence an action. Auslander, J., dissenting), (Jansen, citing Scarsella v Pollak, 461 Mich. 547, 549-550; 607 N.W.2d 711 (2000) (" [T]he mere tendering of a complaint without the required affidavit of merit is insufficient to commence [a medical malpractice] lawsuit." ) (quotation marks and citation omitted). Burton 's holding dealt with a question of substantive law: what is the legal effect of filing a complaint in contravention of a statutory requirement? And as a matter of substantive law, Burton 's answer is not unsound: a complaint that violates the requirement in MCL 600.2912b(1) that " a person [498 Mich. 102] shall not commence an action" without complying with the notice-waiting period cannot, as a matter of law, commence the action.

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

Although an action may be subject to attack because it was not commenced in compliance with a statutory prerequisite, the consequences that might flow from the failure to comply with the prerequisite are not self-executing. Our decision in Saffian v Simmons, 477 Mich. 8; 727 N.W.2d 132 (2007), recognized as much. In that case, the defendant failed to respond to the plaintiff's complaint, which was accompanied

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by a defective affidavit of merit. In moving to set aside a subsequent default judgment, the defendant argued that he could not be defaulted because, since the plaintiff's affidavit of merit was defective, he never had an obligation to respond to the complaint. We rejected this argument and its underlying premise that our statutes and court rules permit defendants to unilaterally determine whether a plaintiff's pleading is adequate. Id. at 13. Instead, we said, " it is the court's province to determine the sufficiency of pleadings, not a defendant's." Id., citing Saffian v Simmons, 267 Mich.App. 297, 312; 704 N.W.2d 722 (2005) (Zahra, P.J., concurring in part and dissenting in part).

[498 Mich. 103] The same reasoning should apply to the notice-waiting-period prerequisite of § 2912b, or any statutory precondition for that matter. A defendant might think a complaint filed before the 182-day mark has been filed prematurely, but that determination is ultimately a legal question that must be resolved by the trial judge.[7] In order to facilitate orderly resolution of these legal issues, our court rules require parties to answer complaints and assert applicable affirmative defenses. As we said in Saffian :

[T]his more orderly process of honoring the presumption of the validity of pleadings, requiring an answer, and then allowing the defendant to challenge the affidavit reduces the chaotic uncertainty that allowing the defendant to decline to answer would introduce. [Also], this rule advances the efficient administration of justice because to allow defendants to nitpick plaintiffs' affidavits and, upon discovering an imperfection, to decline to answer surely leads, as it did here, to challenged default judgments and the hearings those entail. On the other hand, no such hearings are necessitated if the procedure is to require an answer and then a motion by the defendant to challenge the affidavit. This approach will conserve judicial resources and is advisable for that reason. [ Id. at 14.][8]

[498 Mich. 104] Auslander 's uncritical extension of Burton 's legal rule into the procedural realm failed to appreciate the difference between law and procedure. For example,

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the statute of limitations affirmative defense involves the legal determination that a complaint was filed outside a statutorily designated period of time for filing a complaint. MCL 600.5805(1) provides that " [a] person shall not bring or maintain an action . . . unless . . . the action is commenced within the periods of time prescribed by this section." The language of § 600.5805(1) and § 600.2912b(1) (and similar medical malpractice provisions) are materially identical--each prohibits a party from bringing an action unless certain conditions are satisfied. By Auslander 's logic, a complaint filed after the expiration of the statute of limitations is ineffective at " commencing" the action and, therefore, defendants should have no obligation to assert the statute of limitations affirmative defense at all. Yet, by court rule and caselaw, defendants are required to raise the statute of limitations defense in their first responsive pleading or else it is waived. See MCR 2.111(F)(3)(a); Walters, 481 Mich. at 389.

By deviating from the accepted rule of requiring defendants to properly plead and prove legal defects in a plaintiff's filing, Auslander essentially elevates compliance with statutory prerequisites to the echelon of [498 Mich. 105] " lack of jurisdiction," a defense that is not subject to the raise-or-waive rule. And in this respect, Auslander is in tension with our decision 40 years ago that a similar notice-of-intent-to-sue requirement before filing suit was not jurisdictional. See Lisee v Secretary of State, 388 Mich. 32, 41-42; 199 N.W.2d 188 (1972). Indeed, the Court of Appeals has held that " [the] [p]laintiff's failure in this particular case to comply with the notice requirement [of § 600.2912b] before commencing suit did not divest the circuit court of subject-matter jurisdiction." Neal v Oakwood Hosp Corp, 226 Mich.App. 701, 708; 575 N.W.2d 68 (1997).

There is a fundamental tension between Auslander and the established rules that presuit notice requirements are not jurisdictional and that affirmative defenses must be pleaded or they are waived. This tension must be resolved in favor of the established rules, lest we invite the chaos that would ensue if Auslander 's rule were actually followed. As the Court of Appeals in Saffian put it:

[T]o rule as defendant urges would create the opportunity for defendant to knowingly foster the running of the limitations period by ignoring a lawsuit and then simply bypass the default by attacking the affidavit of merit [or timeliness of the complaint], depriving plaintiff of the legitimate opportunity to cure a defect if attacked in an answer or affirmative defense. A defendant would suffer no adverse consequences if a postdefault attack on the affidavit [or complaint] were successful. In the meantime, a plaintiff's claim is laid to rest as the limitation period expires. [ Saffian, 267 Mich.App. at 307.]

I would overrule Auslander as a wrongly decided, unnecessary incongruity in our law. As far as stare decisis goes, if " not all precedents are built alike," McCormick v Carrier, 487 Mich. 180, 277; 795 N.W.2d 517 (2010) (MARKMAN, J., dissenting), then Auslander 's [498 Mich. 106] foundation is weaker than most. It was an order entered without the benefit of briefing and argument; its reasoning consisted of adopting a short, unpublished dissenting opinion of the Court of Appeals; and the proposition it announced was unsupported by any citation of authority. Moreover, Auslander is a jurisprudential fish out of water, incompatible with the legal environment within which it exists, including: MCR 2.111(F)(3); MCR 2.603(A)(1); Neal, 226 Mich.App. at 708; Lisee, 388 Mich. at 41-42; Walters,

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481 Mich. at 389; Saffian, 477 Mich. at 13. It is a testament to its practical unworkability and lack of reliance interests that, despite Auslander 's purported authorization, defendants continue to follow our court rules and statutes by filing answers and affirmative defenses. See Robinson v Detroit, 462 Mich. 439, 464; 613 N.W.2d 307 (2000) (stating that two relevant considerations under the doctrine of stare decisis are: " whether the decision at issue defies 'practical workability,' [and] whether reliance interests would work an undue hardship" ). Furthermore, Auslander has been undermined by a 2010 amendment of MCR 2.112(L)(2)(a), requiring that " all challenges to a notice of intent to sue . . . be made by motion, filed pursuant to MCR 2.119, at the time the defendant files its first response to the complaint, whether by answer or motion[.]" See Robinson, 462 Mich. at 464 (stating that another relevant consideration under the doctrine of stare decisis is " whether changes in the law or facts no longer justify the questioned decision" ). A decision so contrary to the jurisprudential tide as Auslander can only hold on so long before it gives way to the undertow. Today the Court missed an opportunity to formally unmoor Auslander and give it the ceremonial burial at sea that it deserves.

[498 Mich. 107] IV. CONCLUSION

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


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