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149344 - Furr v McLeod, M.D.

Susan Furr and William Furr,
 
Mark R. Granzotto
 
Plaintiffs-Appellees/Cross-Appellants,
 
v
(Appeal from Ct of Appeals)
 
 
(Kalamazoo – Lipsey, A.)
 
Michael McLeod, M.D., Tara B. Mancl, M.M., Michigan State University Kalamazoo Center for Medical Studies, Inc., and Borgess Medical Centers,
 
Stephanie C. Hoffer
 
Defendants-Appellants/Cross- Appellees.
 

Summary

Plaintiff Susan Furr, and her husband, sued defendants for medical malpractice relating to a thyroidectomy procedure that took place on April 4, 2008.  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.  Under the statute, a plaintiff “shall not commence” a medical malpractice action until the mandatory notice period has expired.  In this case, the Furrs’ attorney mailed the notices of intent on April 4, 2010, but then filed the complaint on September 30, 2010 – at least one day before the expiration of the notice period.  The defendants filed a motion for summary disposition, arguing that the Furrs did not properly commence the action, and that it should be dismissed with prejudice because the two-year statute of limitations had expired.  The trial court denied the motion, concluding that the complaint could be amended under MCL 600.2301 and Zwiers v Growney, 286 Mich App 38 (2009).  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 trial court concluded that it could amend the complaint and correct the mistaken filing.
                                                                 
The Court of Appeals granted the defendants leave to appeal, and affirmed the trial court’s ruling.  The panel explained that it was compelled to affirm because it was bound by the analysis in the Tyra v Organ Procurement Agency case.  But it explained that it did not agree with Tyra or its reliance on Zwiers, which the panel concluded had been overruled by the Supreme Court in Driver v Naini, 490 Mich 239 (2011).  The panel called for the convening of a conflict resolution panel to decide whether MCL 600.2301 could be used to amend a prematurely filed medical malpractice complaint.
                                                  
The Court of Appeals voted to convene a seven-judge conflict resolution panel.  The panel concluded, in a split published opinion, that Zwiers had not been overruled and that the trial court correctly held that MCL 600.2301 applied to this case.  The “plain and unambiguous language” of the statute “would appear to mandate a court to disregard a premature filing under MCL 600.2912b if a defendant’s substantial rights are unaffected,” held the four-judge majority.  The three dissenting judges agreed with the reasoning of the initial panel in this case and with the Tyra dissent.
 
The defendants appealed. On November 26, 2014, the Court granted oral argument on the application.  The Court ordered the parties to address whether Zwiers v Growney, 286 Mich App 38 (2009), was overruled by Driver v Naini, 490 Mich 239 (2011).