Court of Appeals discusses propriety of dismissing malpractice claim brought one day before waiting period was to end

Susan Furr and her husband sued Michael McLeod and Tara Mancl, two physicians, after Susan's vocal cords were paralyzed during thyroid surgery.  Her attorneys served the doctors with a Notice of Intent to Sue that was dated April 1, 2010, but not actually mailed until April 4.  When the Defendants refused to discuss pre-suit settlement, the Furrs went ahead with their lawsuit, filing their Complaint and Affidavits of Merit on September 30.  The Defendants waited two months and then filed a motion for summary disposition, arguing that because the Furrs did not wait the full 182 days before filing suit, their Complaint did not toll the running of the statute of limitations, and therefore the action must be dismissed with prejudice [meaning they could not re-file it]. 

The trial judge concluded that under existing precedent, he could ignore the procedural defect of filing one day prematurely because no party was prejudiced by the Plaintiffs' attorneys' counting error.  The judge held that the Complaint should be amended to the later date and the interests of justice required such an amendment under the circumstances. The healthcare providers appealed.

This week the three judge Court of Appeals panel assigned to the case couldn't agree on just how to handle the appeal.  It noted that two recent Michigan Supreme Court decisions strongly imply that the Furrs' case should be dismissed, regardless of how insignificant their error was and regardless of whether any prejudice resulted to the Defendants. One Republican judge offered the opinion that the Michigan Supreme Court had overturned the decision relied on by the Furrs and the trial judge--the decision that would allow the court to  exercise its discretion to ignore a minor, technical error that prejudiced no one.  He concluded that the Supreme Court requires strict compliance or dismissal of the claim and voted for a "conflict panel" of the Court of Appeals to render a consistent holding that would allow the trial judge to be overturned.

A second judge concluded that the Supreme Court did not overturn the case the trial judge relied upon:  he felt that no further action need be taken.  The third judge disagreed that the Supreme Court had overturned precedent, but concurred in the need for a conflict panel to evaluate the existing Court of Appeals opinions.