A lawyer must be careful with time periods in medical malpracrtice cases

The court held that the defendant-doctor was entitled to summary disposition because the plaintiffs filed their second complaint after the expiration of the tolling period triggered by the mailing of their original NOI. Defendant performed a bunion osteotomy on the injured plaintiff on 11/22/06. She alleged that after the surgery, she developed cellulitis in her foot, which required several ER admissions, and that defendant failed to properly diagnose and treat the bunion. Plaintiffs sent defendant a NOI on 8/20/08. They filed their first complaint on 1/20/09. Defendant successfully moved for summary disposition on the basis the NOI was defective. The trial court dismissed the complaint without prejudice on 6/12/09. Plaintiffs sent defendant an amended NOI on 8/17/09 and filed their second complaint on 1/19/10. Defendant unsuccessfully moved for summary disposition on the basis the second complaint was time-barred. Since the first NOI was filed within 182 days of the statute of limitations expiration and no complaint was filed within 2 years of the injury, it triggered the only tolling period allowed under § 2912b. With the filing of their first complaint, the limitations period continued to be tolled. However, the trial court dismissed that complaint without prejudice on 6/12/09. "At the time of that dismissal, 94 days remained in the tolling period triggered by the mailing of the NOI and continued by the filing of the initial complaint." Thus, plaintiffs had until 9/14/09 to refile their case. They filed their second complaint "well after expiration of the tolling period . . . ." The court noted that under Bush, a defective NOI tolls the statute of limitations and a plaintiff may amend the NOI without affecting or limiting that initial tolling. Thus, plaintiffs could have filed both their amended NOI and their second complaint before 9/14/09. They argued that "at the time they mailed the amended NOI, the law governing such amendments and their effect on the statute of limitations was unclear and presented a ‘catch-22.'" They pointed out that they could not both wait the 182-day notice period from the amended NOI and also file before 9/14/09. However, Bush (decided on 7/29/09) "resolved this issue, holding that the tolling ran from the defective NOI, not the corrective amendment." Plaintiffs also cited Zwiers to argue that MCL 600.2301 allowed the trial court to "‘disregard any error or defect in the proceedings if substantial rights are not affected.'" However, the plaintiff in Zwiers mistakenly filed the complaint a day early (before the running of the notice period). Plaintiffs' complaint was filed more than four months after the statute of limitations expired. "Neither Bush nor Zwiers held that MCL 600.2301 could bring a time barred claim within the statute of limitations." Reversed and remanded for entry of judgment for defendant.