Health Care, Human Resources, and Law

Law firm wins medical malpractice case in Michigan Supreme Court

August 11, 2015
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Law firm wins medical malpractice case in Michigan Supreme Court
Stephanie Hoffer. Courtesy Smith Haughey Rice & Roegge

The Michigan Supreme Court has cleared up a decade of confusion with a recent ruling related to medical malpractice lawsuit filings.

In the cases of Tyra v. Organ Procurement Agency of Michigan and Furr v. McLeod, the state Supreme Court said when a medical malpractice plaintiff files a complaint before the expiration of the mandatory notice-waiting period, the filing is ineffective, does not initiate tolling of the statute of limitations and must be dismissed.

Stephanie Hoffer, attorney at Smith Haughey Rice & Roegge in Grand Rapids, who represented the defendant McLeod as appellate counsel, said the decision last month is important, because it shows that the “current Supreme Court is going to follow the language of statutes and not going to willy-nilly overrule prior cases.”

“It gives us a certainty in the law,” Hoffer said.

Mandatory waiting period

The cases dealt with the mandatory 182-day waiting period that is supposed to follow a medical malpractice notice of intent.

Hoffer said there are several procedural requirements that come with filing a medical malpractice claim. These requirements are designed to promote early resolution of meritorious claims and prevent non-meritorious claims.

In medical malpractice lawsuits, the plaintiff is required to notify the hospital worker who is being accused of malpractice that they intend to file a lawsuit, when, in most cases, the plaintiff then has to wait the required 182 days before actually filing a lawsuit.

Hoffer said the 182-day waiting period is essential for retaining legal counsel and gathering the information needed to decide how to proceed.

During that time, medical record authorization must be obtained and medical records then need to be ordered and received. Additionally, potential expert witnesses are contacted to review the medical records to provide an opinion on whether the malpractice case has merit.

Hoffer said those opinions are used to determine whether to pursue a settlement, defend the case or enter into the discovery process to gather more information.

“It’s really tough to not have the 182 days,” Hoffer said. “We use all of it.”


Smith Haughey said that "although the issue was seemingly resolved" by the Supreme Court in the 2005 opinion of Burton v. Reed City Hosp., several cases following the decision have brought up questions about how lawsuits filed prior to the conclusion of the 182-day waiting period must be handled, specifically Zwiers v. Growney and Driver v. Naini.

In Zwiers v. Growney, the Court of Appeals said an early filing error could be ignored or the filing date amended, and the Driver v. Naini case saw the Supreme Court re-affirm its 2005 decision, but Smith Haughey said "some panels of the Court of Appeals did not see it that way."

“After Driver, everything was remanded for reconsideration,” Hoffer said.

At the same time, the Furr and Tyra cases were making their way through the court system.

In the Tyra case, the Court of Appeals panel agreed with the Zwiers decision and published the opinion, which meant the other Court of Appeals panels were beholden to that decision.

That created a problem in the Furr case for the Court of Appeals panel, which did not agree with their colleagues’ decision.

Following precedent

Following a conflict resolution panel decision, the Supreme Court agreed to hear oral arguments on both the Furr and Tyra cases, and it issued the opinion in favor of both defendants.

In a unanimous decision, the Supreme Court judges said when a medical malpractice complaint is prematurely filed, it does not toll the statute of limitations, and therefore, once the limitations period expires, the complaint must be dismissed with prejudice.

“On a larger scale, we have a nice opinion from the Supreme Court that follows the plain language of the statute and also abides by prior Supreme Court precedent,” Hoffer said. “There was a lot of fear that if the amendment statute was going to be able to be used to ignore premature filing, that really it could be used to ignore or amend absolutely any key facts and also nullify the statute of limitations. The effect of this case, if it had gone the other way, would have been really far reaching and drastic.”

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