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).