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148079; 148087 - Tyra v Organ Procurement of MI

Lisa Tyra,
 
Mark R. Granzotto
 
Plaintiff-Appellee,
 
v
(Appeal from Ct of Appeals)
 
 
(Oakland – Grant, N.)
 
Organ Procurement Agency of Michigan, d/b/a Gift of Life Michigan,
Defendant-Appellant,
C. Thomas Ludden
Julie McCann O’Connor
 
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
(Appeal from Ct of Appeals)
 
 
(Oakland – Grant, N.)
 
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.
______________________________

Summary

On August 13, 2009, plaintiff Lisa Tyra sued the defendants for medical malpractice relating to a kidney transplant that took place on June 9, 2007.  The statute of limitations for a medical malpractice claim is two years.  Before filing a medical malpractice complaint, a plaintiff must give notice to the proposed defendants of her intent to sue.  MCL 600.2912b(1) requires a plaintiff to mail “notices of intent to sue” to the defendants 182 days before filing a complaint; when done properly, this can toll the limitations period.  In this case, Tyra’s attorney mailed the notices of intent on April 23, 2009, before the statute of limitations expired, but then filed the complaint only 112 later, instead of waiting 182 days as required by the statute.  The defendants filed a motion for summary disposition, arguing that Tyra did not properly commence the action and did not toll the two-year statute of limitations.  As a result, claimed the defendants, the lawsuit had to be dismissed with prejudice.  The trial court agreed, and granted the defendants’ motion for summary disposition. 
 
Tyra appealed. In a split, published opinion, the Court of Appeals reversed.  The majority held the defendants’ affirmative defenses were too vague and did not adequately inform the plaintiff that they intended to argue that the complaint was prematurely filed.  But it concluded that the defendants’ failure to properly assert the affirmative defense did not prevent the defendants from relying on MCL 600.2912b(1) and seeking dismissal of the lawsuit.  Under controlling case law, a prematurely filed complaint does not commence a medical malpractice action or toll the running of the limitations period.  Nevertheless, held the majority, under MCL 600.2301 and Zwiers v Growney, 286 Mich App 38 (2009), Tyra may be able to amend her complaint.  MCL 600.2301 states:  “The court in which any action or proceeding is pending has power to amend any process, pleading 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.”  The Court of Appeals majority held that the trial court erred in granting summary disposition without first considering the possibility of an amendment under MCL 600.2301.  Accordingly, the majority set aside the order granting summary disposition and remanded the case to the trial court for further proceedings.     
 
The dissenting Court of Appeals judge would have affirmed the trial court’s grant of summary disposition because the prematurely filed complaint did not commence an action and, therefore, did not toll the statute of limitations.  Because there was no pending action, reasoned the dissent, MCL 600.2301 could not be applied retroactively to resurrect the plaintiff’s complaint.  
 
The defendants appealed.  On November 26, 2014, the Court granted oral argument on the application.  The parties were ordered to address whether Zwiers v Growney, 286 Mich App 38 (2009), was overruled by Driver v Naini, 490 Mich 239 (2011), and whether the defendants’ affirmative defenses were defective.