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No. 126136
| Keith W. Mayberry and Joanna Mayberry, |
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Joseph J. Ceglarek, II |
Plaintiffs-Appellants, |
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vs ( Oakland - McDonald, J.) |
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General Orthopedics, P.C. and |
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James M. Pidgeon |
William H. Kohen, M.D., |
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Defendants-Appellees. |
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Click to view briefs in Adobe format:
Plaintiffs-Appellants' Application for Leave to Appeal>>
Plaintiffs-Appellants' Supplemental Brief>>
Defendants-Appellees' Brief in Response to Application>>
Defendants-Appellees' Supplemental Brief>>
Background
Plaintiffs Keith and Joanna Mayberry claim that defendant Dr. William H. Kohen negligently operated on Keith Mayberry's wrist on November 22, 1999 . The parties agree that the Mayberrys' malpractice claim accrued on that date; accordingly, the two-year statute of limitations normally would have expired on November 22, 2001. MCL 600.2912b requires plaintiffs seeking to file a medical malpractice action to give presuit notice of their intent to sue ("NOI"); if the statute of limitations would expire during the statutory notice period, usually 182 days, then MCL 600.5856 tolls the limitations period. In this case, the plaintiffs mailed a NOI to Dr. Kohen only on June 21, 2000 . The plaintiffs mailed a second NOI on October 12, 2001, which again named Dr. Kohen and added General Orthopedics, P.C. The second NOI was mailed about a month before the two-year limitation period expired. The plaintiffs allowed the notice period to elapse and then filed their complaint against both defendants on March 19, 2002 . The plaintiffs' complaint was timely if their second NOI tolled the statute of limitations for 182 days. But the circuit judge found that the plaintiffs' complaint was not timely, and the lawsuit was dismissed. The plaintiffs appealed to the Court of Appeals, which affirmed the circuit judge's ruling. The plaintiffs now seek leave to appeal to the Supreme Court.
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