Lisa Tyra,
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Mark R. Granzotto
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Plaintiff-Appellee,
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v
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(Appeal from Ct of Appeals)
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(Oakland – Grant, N.)
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Organ Procurement Agency of
Michigan, d/b/a Gift of Life Michigan,
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Defendant-Appellant,
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C. Thomas Ludden
Julie McCann O’Connor
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and
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Steven Cohn, M.D., and
William Beaumont Hospital,
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Defendants-Appellees,
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and
Dillip Samara Pungavan, M.D., and
John Doe, Defendants.
______________________________
Lisa Tyra,
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Plaintiff-Appellee,
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v
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(Appeal from Ct of Appeals)
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(Oakland – Grant, N.)
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Organ Procurement Agency of
Michigan, d/b/a Gift of Life Michigan,
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Defendant-Appellee,
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and
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Steven Cohn, M.D., and
William Beaumont Hospital,
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Defendants-Appellants,
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and
Dillip Samara Pungavan, M.D., and
John Doe, Defendants.
______________________________
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.