Medical malpractice; Complaint filed before the expiration of the applicable notice period under MCL 600.2912b(1); Tyra v Organ Procurement Agency of MI; Burton v Reed City Hosp Corp; Whether defendants complied with MCR 2.112(L)(2)(a); Applicability of MCL 600.2912b(9) (an exception shortening the 182-day notice period); Applicability of MCL 600.2301; Personal representative (PR); Notice of intent (NOI)

The court held that because plaintiff-PR filed her medical malpractice “complaint one day before the notice period expired, [it] failed to commence an action or toll the statute of limitations.” Further, it concluded that defendants complied with MCR 2.112(L)(2)(a), that MCL 600.2912b(9) did not allow her to file the complaint early, and under Tyra, “MCL 600.2301 cannot be applied to cases such as this one.” Thus, the court affirmed the trial court’s dismissal of all claims against defendants-appellees (a doctor and a PLLC) with prejudice. The statute of limitations for the medical malpractice claims expired on 11/10/22, two years after the decedent’s shoulder surgery. Plaintiff mailed her NOI on 9/27/22, and “filed her complaint 182 days later[.]” The Michigan Supreme Court held in Tyra that “‘a medical malpractice action can only be commenced by filing a timely NOI and then filing a complaint and an affidavit of merit after the applicable notice period has expired, but before the period of limitations has expired.’” As a result, “when a plaintiff files a complaint before the expiration of the applicable notice period, the premature filing does not commence an action or toll the statute of limitations.” Plaintiff argued that the trial court erred here “because defendants did not comply with MCR 2.112(L)(2)(a).” While the court rejected defendants’ contention that the rule did not apply, it found that they complied with it, concluding that their “affidavits of noninvolvement were not an answer or motion.” Rather, they “challenged plaintiff’s compliance with the notice waiting period in the first answer or motion filed, which was their [8/23] motion to dismiss, filed ‘pursuant to MCR 2.119.’” The court also held that their 2/23 “response, merely denying liability, did not constitute written notice of an intent to waive the 182-day notice waiting period under MCL 600.2912b(9).” Finally, Tyra “held that MCL 600.2301 cannot save a plaintiff’s actions when they prematurely file a complaint before the 182-day notice period has expired and the statute of limitations period has run because there was never a pending action in such cases[.]” The court was bound by this ruling given that “Tyra has not been overruled or superseded[.]” And it found plaintiff’s attempt to distinguish this case unpersuasive.