In a case that should serve as a warning to medical malpractice lawyers that “this is why you should not wait until the last day to file a medical malpractice case,” the Michigan Supreme Court overturned summary judgment that had been granted to the Michigan medical malpractice defendants, in its decision filed on June 27, 2017, finding that the medical malpractice statute of limitations period is tolled when the notice of intent to file a medical malpractice claim (“NOI”) is filed on the last day of the limitations period, leaving no whole days of the limitations period to toll. Therefore, the plaintiff’s medical malpractice complaint filed the day after the notice period ended was timely.
Michigan’s Two-Year Statute Of Limitations For Medical Malpractice Claims
The limitations period for a medical malpractice action in Michigan is two years. MCL 600.5805(6). The Revised Judicature Act (“RJA”), MCL 600.101 et seq., also imposes a notice requirement on prospective medical malpractice plaintiffs: “[A] person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.” [MCL 600.2912b(1).] The RJA also provides that mailing an NOI tolls the statute of limitations: “[a]t the time notice is given in compliance with the applicable notice period under [MCL 600.2912b], if during that period a claim would be barred by the statute of limitations . . . . ” [MCL 600.5856(c).]
If a plaintiff files a NOI to file a claim before the limitations period for the malpractice action expires, but the limitations period for the malpractice action would otherwise expire during the 182-day notice period, the statute of limitations for the malpractice action is tolled for the duration of the notice period.
The end of the limitations period for the plaintiff’s medical malpractice claim in the case the Michigan Supreme Court was deciding was December 26, 2013, which was also the date on which the plaintiff mailed the NOI to the prospective defendants. The plaintiff waited 182 days from December 26, 2013 to file his medical malpractice complaint, on June 27, 2014 (the “183rd day”). The defendants filed a motion for summary disposition, arguing that the suit was time-barred, but the trial court denied the motion.
The defendants appealed to the Michigan Court of Appeals, which reversed, holding that MCR 1.108 (the rule concerning the calculation of time) is best understood to signify that the 182-day notice period began on December 27, 2013, the day after the plaintiff served the NOI on December 26, 2013, and expired on June 26, 2014. Therefore, the Michigan Court of Appeals held that filing the NOI on the last day of the limitations period was not sufficient to toll the statute of limitations, acknowledging that its analysis means that a plaintiff who serves an NOI on the last day of the limitations period is legally incapable of filing a timely complaint and is, in effect, “deadlocked” from timely filing a suit in compliance with both the statutory notice period and the statute of limitations.
Michigan Supreme Court Decision
The Michigan Supreme Court stated that the issue it had to decide is while MCL 600.5856(c) provides that the limitations period is tolled “[a]t the time notice is given,” if the NOI is served on the final day of the limitations period and only a fraction of a day is left, can that fractional day be tolled?
The Law Of Fractional Days
The Michigan Supreme Court stated, “While it is well established that fractional days are to be disregarded, to assert this affords little insight as to how to go about implementing such disregard. We must determine whether this disregard is or is not consistent with recognizing that the instant NOI was filed before the end of the day on December 26, 2013, and if we do take such note, what effect the unexpired portion of the day had on plaintiff’s subsequent filing options … [t]he law of fractional days, however, has two relevant strands of analysis– how time periods are counted and how fractional days are rounded off.”
Michigan’s law regarding how time is counted is currently codified in two overlapping provisions: MCL 8.6 provides that, “[i]n computing a period of days, the first day is excluded and the last day is included.” MCR 1.108(1) provides that, “[i]n computing a period of time prescribed or allowed by these rules, by court order, or by statute . . . [t]he day of the act, [or] event, . . . after which the designated period of time begins to run is not included,” but “[t]he last day of the period is included . . . .”
The Michigan Supreme Court stated that although the method of excluding the first day and including the last was not codified as to statutory time periods until the 1963 court rules, it nonetheless has consistently been applied in all contexts because it “best accords with the common understanding and is least likely to lead to mistakes in the application of statutory provisions.” The rationale for this method of excluding the first day and including the last in calculating a period of time is to ensure that parties receive the entire amount of time to which they are entitled, which principle applies in medical malpractice claims: the plaintiff is required to wait the entire 182-day notice period before filing a complaint.
The Michigan Supreme Court stated that the law of counting time indicates that the first fractional day– i.e., the day that triggers the running of the time period– is excluded, while the last day is included, based on common-law notions of fairness. Thus, in reckoning the end of the 182-day notice period, the day on which the NOI was served is excluded to ensure that defendants receive 182 whole days of notice.
The Michigan Supreme Court stated what the law of counting time does not explain is the legal consequence of the NOI filed on the final day of the limitations period and the effect of the unexpired fraction of the day on plaintiff’s options once the notice period ended. In other words, the law of counting time provides no answer as to whether the NOI, which was filed with less than an entire day remaining in the limitations period, tolled that period, in that it provides no answer as to whether the limitations period should be treated as having any time left to toll if there is only a fraction of a day remaining.
The Law Relating To The Rounding Off Of Fractional Days
Michigan law disregards fractions of a day. The Michigan Supreme Court stated that the touchstone of the common law is that fractional days must be rounded off in a way that accords with common understanding and is consistent with prevailing social customs, practices, and expectations: in disregarding fractions of a day, Michigan does not consider a day to be over until it is entirely over.
The Michigan Supreme Court stated that if Michigan’s rule is that a day is not over until it is entirely over, then Michigan has effectively decided to construe its disregarding of fractional days, at least in this context, as though the day had not yet begun– to, in effect, “round up” rather than down.
In the case the Michigan Supreme Court was deciding, the day was not yet over when the NOI was filed and therefore the NOI filed on that day preserved that entire day for use when the 182-day notice period finally expired.
The Michigan Supreme Court therefore held: “that applying our common-law jurisprudence of fractional days produces a conclusion that a timely NOI preserves the day the NOI is filed as a day to be used once the limitations period begins running after the notice period ends. Notably, this applies to any NOI that triggers tolling under MCL 600.5856(c), whether filed on the final day of the limitations period or on some earlier day. The rule is that once the notice period ends and the time for the plaintiff to bring a claim once again begins to run, it will run for the number of whole days remaining in the limitations period when the NOI was filed, plus one day to reflect the fractional day remaining when the NOI itself was filed … when an NOI is filed on the final day of the limitations period, the next business day after the notice period expires is an eligible day to file suit … this rule applies whether the NOI is filed on the final day of the limitations period or some day before the final day. Either way, if it is filed at a point at which tolling will occur, the remaining period preserved for plaintiff to use once the notice period ends comprises the number of whole days remaining in the period of limitations when the NOI was filed, plus one day to reflect the fractional day remaining when the NOI is filed.” (italics added)
“As applied to the instant case, the rule is simple to implement. Plaintiff filed his NOI on the final day of the limitations period– December 26, 2013. Because it was filed before the end of the day on December 26, 2013, some fraction of that day remained. We take notice of that fraction of the day only to the extent that we recognize that it was not yet over, and not yet having ended … Consequently, the NOI tolled the limitations period, leaving one day for plaintiff to file his complaint after the notice period ended … [the plaintiff] had to wait 182 days as calculated by MCR 1.108(1), meaning that he had to wait until June 26, 2013, was over before using whatever time remained of the period of limitations– in this case, one day, June 27, 2013, on which he filed the complaint. Therefore, his complaint was timely filed and was legally sufficient to commence his suit.”
Source Haksluoto v. Mt. Clemens Regional Medical Center, MSC 153723
What is the lesson to be learned by all lawyers from this Michigan case? Never wait until what you believe to be the last day to file a notice, complaint, or any other court pleading … your calculation of time may be wrong, and you may suffer unnecessary delay in the court reaching the merits of your claim, and you and your client may incur substantial, unnecessary expenses, if your calculation of time is challenged, whether you win the challenge or not.
If you or a loved one suffered serious injury (or worse) as a result of medical negligence in Michigan or in another U.S. state, you should promptly find a Michigan medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical negligence claim for you and represent you in a medical malpractice case, if appropriate.
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