Opinion
Docket No. 141793.COA No. 287587.
2012-04-6
Thelma JOHNSON, Personal Representative of the Estate of Carl Johnson, Plaintiff–Appellee, v. HURLEY MEDICAL GROUP, P.C., doing business as Hurley Medical Center, Defendant–Appellee,andDr. Moongilmadugu Inba–Vashvu, M.D., Defendant–Appellant,andKenneth Jordan, M.D., Defendant.
Prior report: Mich.App., 2010 WL 3184394.
Order
On March 8, 2012, the Court heard oral argument on the application for leave to appeal the August 12, 2010, judgment of the Court of Appeals. On order of the Court, the application is again considered. MCR 7.302(H)(1). In lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals and we REINSTATE the Genesee Circuit Court's order granting summary disposition to the defendants. In 2000, the plaintiff filed a notice of intent (NOI) that failed to state the manner in which it was alleged that the breach of the standard of practice or care was the proximate cause of the injury claimed in the notice, as required by MCL 600.2912b(4)(e). Because the NOI failed to contain all the information required under MCL 600.2912b(4), it did not toll the statute of limitations. Boodt v. Borgess Medical Ctr., 481 Mich. 558, 562–563, 751 N.W.2d 44 (2008); Roberts v. Mecosta Co. Gen. Hosp., 466 Mich. 57, 59, 64, 642 N.W.2d 663 (2002). The Court of Appeals erred in concluding that under MCL 600.2301 and Bush v. Shabahang, 484 Mich. 156, 772 N.W.2d 272 (2009), the plaintiff could amend her NOI retroactive to when it was filed. By its own terms, Bush applies only to cases affected by the 2004 amendment of MCL 600.5856. Id. at 170, 185, 772 N.W.2d 272. See also Ligons v. Crittenton Hosp., 490 Mich. 61, 87, 803 N.W.2d 271 (2011) (declining “to apply the rationale of Bush beyond its limited statutory focus,” i.e., the 2004 amendment of MCL 600.5856). The NOI here was filed before the effective date of the 2004 amendment and thus does not fall within the holding of Bush. Further, because the plaintiff failed to file an NOI that complied with all the content requirements of MCL 600.2912b(4), no action could be commenced, Boodt, 481 Mich. at 562–563, 751 N.W.2d 44, and MCL 600.2301 applies only to pending actions. Id. at 563 n. 4, 751 N.W.2d 44; Driver v. Naini, 490 Mich. 239, 254, 264, 802 N.W.2d 311 (2011) (explaining that MCL 600.2301 is inapplicable where no action or proceeding is pending, and that no action is pending if it could not be commenced).
YOUNG, C.J. (concurring).
I fully concur in the Court's order. I conclude that even if Bush v. Shabahang, 484 Mich. 156, 772 N.W.2d 272 (2009), applied in this case, the decision of the panel of the Court of Appeals should be reversed because a statute of limitations defense is a substantial right of a party. DeCosta v. Gossage, 486 Mich. 116, 138, 782 N.W.2d 734 (2010) (MARKMAN, J., dissenting), citing Gladych v. New Family Homes, Inc., 468 Mich. 594, 600, 664 N.W.2d 705 (2003).