{ Banner Image }

Michigan Supreme Court Overrules Portions of Roberts and Boodt

Click to Share Share  |  Twitter Facebook
Kirsten M. McNelly
Foster Swift Medical Malpractice E-News
August 4, 2009

On July 29, 2009 the Michigan Supreme Court overruled portions of previous rulings in Roberts v Mecosta County General Hospital, 466 Mich 57, 642 NW2d 663 (2002) and Boodt v Borgess Medical Center, 481 Mich 561, 751 NW2d 44 (2008), which had held that a defect in a plaintiff's notice of intent ("NOI") precludes tolling of the statute of limitations applicable to medical malpractice cases during the 182-day waiting period prescribed in MCL 600.5856(d).

In Bush v Shebahang, et al, (Michigan Supreme Court Case No. 136653), the Court held (4-3) that the previous decisions were premised on statutory language which was amended in 2004 and is therefore no longer applicable.  The Court noted that 2004 amendments to MCL 600.5856:

"significantly clarified the proper role of an NOI provided pursuant to MCL 600.2912b.  While the former statute, MCL 600.5856(d), has been interpreted to preclude tolling when defects are found in an NOI, the current statute, ยง 5856(c), makes clear that the question whether tolling applies is determined by the timeliness of the NOI.  Thus, if an NOI is timely, the statute of limitations is tolled despite defects contained therein."

(Bush, Slip Op at 3).1

The legislature did not intend that a defective NOI would mandate that a case be dismissed with prejudice.  (Id. at 16).  Instead, the Court decided, a dismissal is only warranted where a party fails to make a good faith attempt to comply with the content requirements governing NOIs.  (Id. at 24).  Finally, the Court reasoned that the NOI statute is best served by allowing defects in NOIs "to be addressed in light of MCL 600.2301, which allows for amendment and disregard of 'any error or defect' where the substantial rights of the parties are not affected and the cure is in the furtherance of justice."  (Id. at 3).

This case brings case law into closer conformity with legislative intent as reflected in amendments to the applicable statutes.  By overruling prior case authority on which some courts and defendants have relied in dismissing with prejudice cases with defective NOIs, the Supreme Court has probably made it more likely that medical malpractice cases will be resolved on their merits.