MSC rules that a defective notice of intent filed after the statute of limitations had expired does not toll the wrongful-death savings period
In lieu of granting leave to appeal, the Michigan Supreme Court reversed the August 28, 2012 Court of Appeals judgment in Estate of Kerin LaJoice v Northern Michigan Hospitals Inc., et al. In so doing, the Court reaffirmed several prior rulings establishing that a defective notice of intent (“NOI”) filed after the statute of limitations period has run does not toll the wrongful-death saving provision under MCL 600.5852.
LaJoice involves a malpractice claim brought by the decedent’s estate against the hospital and various physicians. Here, the defective NOI was filed after the statute of limitations had expired but before the expiration of the wrongful-death savings statute. The trial court dismissed the plaintiff’s claim with prejudice after finding that the NOI was defective and did not constitute a good-faith attempt to comply with MCL 600.2912(b). The Court of Appeals reversed the trial court’s ruling reasoning. It held that the NOI constituted a good-faith attempt to comply with MCL 600.2912(4) and, further, that any amendment of the NOI would relate back to the time the original NOI was filed, under the rule established in Bush v. Shabahang, 484 Mich. 156 (2009). However, the Supreme Court noted an important difference distinguishing this case from the facts presented in Bush. Here, unlike in Bush, the defective notice of intent was filed after the statute of limitations had expired. The Court has already decided that issue—a late-filed defective notice of intent does not toll the wrongful-death savings period.
Justice Cavanagh dissented and noted that, just as he expressed in his dissenting opinion in Waltz v. Wyse, 469 Mich. 642 (2004), he believes that MCL 600.5856 applies to toll the wrongful-death saving period. He notes that the plain language of the statute establishes that filing a complaint tolls the limitations period. Therefore, despite any defects in the plaintiff’s notice of intent, filing of the complaint tolled the wrongful-death saving period. Accordingly, Justice Cavanagh writes that this plaintiff should be permitted to amend the notice of intent and proceed with the lawsuit.