Premature medical malpractice complaint does not toll statute of limitations: Michigan Supreme Court

A confusion that has lingered on for years together has finally been cleared by the Michigan Supreme Court. The State Supreme Court, in Tyra v. Organ Procurement Agency of Michigan and Furr v. McLeod stated that when a medical malpractice plaintiff files a complaint before the expiration of the mandatory notice-waiting period, the filing is ineffective, doesn’t initiate tolling of the statute of limitations and must be dismissed.

Defendant McLeod was represented by Stephanie Hoffer of Smith Haughey Rice & Roegge. Hoffer talked about the importance of the decision given by the Supreme Court. She further said that the “current Supreme Court was going to follow the language of statutes and not going to willy-nilly overrule prior cases.”. She also said that several procedural requirements were designed to promote early resolution of meritorious claims and to prevent non-meritorious claims which came along with filing a medical malpractice claim.

In such lawsuits, it is a pre-requisite for the Plaintiff to notify the hospital worker who is being accused of medical malpractice. Thereafter, a waiting period of 182 days post such notification is mandatory before filing the complaint.

According to Hoffer, the 182 days waiting period was essential for retaining legal counsel and for gathering the information required for deciding how to proceed.

The waiting period is used to obtain medical record authorizations and receive the records. The potential expert witnesses are then contacted to review the medical records in order to provide an opinion on whether the case has merit.  These opinions are used to pursue a settlement, defend the case or to enter into the discovery process to gather more information. Several cases have followed the opinion given by the Supreme Court in Burton v. Reed City Hosp. in 2003. However, on a number of occasions it has been questioned how cases that have been filed before the required waiting period been handled.

The Supreme Court judges passed a unanimous decision stating that 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.