LEGAL NEWS PHOTO BY CYNTHIA PRICE
by Cynthia Price
Legal News
The decision made by the Michigan Supreme Court in Tyra v. Organ Procurement Agency of Michigan and Furr v. McLeod is easy to summarize: a complaint by a medical malpractice plaintiff filed before the end of the required waiting period following delivery of a Notice of Intent (NOI) is ineffective and must be dismissed. The filing also does not toll the statute of limitations.
The path to that definitive ruling, however, was much more complicated, full of contradictory twists and turns, resulting in uncertainty for all, but particularly for the medical providers and institutions Stephanie Hoffer of Smith Haughey Rice and Roegge defends.
In December of 2003, the Michigan Supreme Court issued an opinion in Burton v. Reed City Hospital — very consistent with the current Tyra ruling — that a case must be dismissed with prejudice if it is filed at any time prior to the end of the 182-day waiting period after serving the NOI.
This seemed to settle the matter, but in 2009 the Court of Appeals brought different standards to bear in Zwiers v. Growney. Smith Haughey attorneys represented the defendants in that case.
The plaintiff had filed the complaint just one day early, based on a good-faith error by the attorney, and the COA based its decision on the premise that Burton failed to take into consideration MCL 600.2301.
That section reads:
“Amendment of process or pleadings before judgment.
“The court in which any action or proceeding is pending, has power to amend any process, pleading or proceeding in such action or proceeding, either in form or substance, for the furtherance of justice, on such terms as are just, at any time before judgment rendered therein. The court at every stage of the action or proceeding shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.”
The COA judges reversed the trial court’s dismissal, basing their reasoning on a previous Supreme Court case, Bush v. Shabahang. (This was a West Michigan case, and Rhoades McKee attorneys represented one of the defendants, Spectrum Health Butterworth Campus.)
In Bush v. Shabahang, which had been decided shortly before Zwiers, and which deals more with the tolling of the statute of limitations than with the waiting period issue, the justices held that 2004 amendments to the Judicature Act clarified the law, and that “...the mandates of § 2301 are met when a party makes a good-faith attempt to comply with the content requirements of § 2912b.”
But after Zwiers, in the 2011 decision on Driver v. Naini, the Supreme Court majority specifically stated that Bush was “inapplicable” and that “Nothing in Bush altered our holding in Burton.”
That is the history that led up to the Michigan Supreme Court hearing oral argument on both Tyra and Furr v. McLeod. The high court stated, “At oral argument, the parties shall address whether Zwiers v Growney ... was overruled by this Court’s decision in Driver v Naini... , and whether the defendant’s affirmative defenses were defective because they did not specifically state the grounds for the defense.” (More on the latter follows.)
In Tyra v. Organ Procurement Agency, the COA went back to Supreme Court interpretations of a predecessor to 600.2301 and Zwiers to decide that “...on the basis of both Zwiers and the purpose behind MCL 600.2301, the trial court erred by failing to at least consider the possibility of allowing plaintiff to amend her complaint [date] and afford plaintiff the opportunity to present an argument.”
In the meantime, Furr was working its way through the courts. Stephanie Hoffer was the appellate counsel for the defense as it went to the COA.
An article on the Smith Haughey website says, “... when Furr was decided, Judge Whitbeck indicated that; but for Tyra, he would have followed the rule set forth in Burton.”
Holding that Tyra was wrongly decided, Whitbeck called for “the convening of a conflict resolution panel pursuant to MCR 7.215(3).” That panel split 4 to 3 but the majority affirmed Tyra.
Hoffer, who joined Smith Haughey in 2010, was one of the attorneys who gave oral argument before the Supreme Court, the first time she had done so.
“It was very good,” she comments. “I really enjoyed it. Obviously I was nervous beforehand but then you just kind of get up and start talking and answering their questions and you’re fine,” she adds with her characteristic big grin.
She added that many of the questions prior to her argument and some of those during her argument regarded whether it was necessary to preserve the premature filing argument as an affirmative defense. This was not the issue in Furr, but Hoffer did her best to answer them regardless.
Her best was more than good enough, because in the long run, all seven justices agreed that the complaint must be filed after the 182-day waiting period and not a day before.
At the same time, the justices declined to make a decision on the affirmative defense issue. While four of the seven felt that they did not have enough information as a result of factors including the plaintiff’s attorney failing to file a response briefing, three of them dissented. The three actually held up Furr as an example of proper affirmative defense wording.
Hoffer says that in addition to the specific benefit of the Supreme Court’s decision giving defendants complete certainty about how long they will have to prepare a case, it also provides reassurance that the court will require strict compliance with all of the provisions of the law. “Medical malpractice is very statutory. If you’re going to use the amendment statute to forgive an error in the waiting period, then maybe courts could apply it in other cases, and the reach could be really broad. So this is a really important indicator that’s not going to happen.”
Hoffer adds that, even though these cases apply to medical malpractice law, that stability is beneficial across the spectrum. “Whenever you have a statute, it’s nice to know that this Supreme Court is not going to allow it to be weakened.”
She therefore has nothing but praise for the current justices. “We have a really great court right now – they’re all very smart, and their opinions are very well reasoned. They just get to what the law says.”
In medical malpractice cases, Hoffer points out, the need for the approximately-six-month waiting period is not academic. “In most cases, we need every one of those 182 days to prepare our case. When we get the NOI, we have to first order the medical records, then review them and talk it over with our clients, and then get an expert in the specific standard of care to review them. Just to get the records can sometimes take forever, getting authorizations and all that, so even under the best of circumstances two months is gone.”
Hoffer not only litigates on behalf of physicians, nurses, medical care facilities, and attorneys, she also appears as Amicus Counsel when her clients have an interest in the legal outcomes of other cases. Her appellate experience stands her in good stead when litigating at the trial court level due to her good sense of issue preservation and other steps necessary for an effective appeal.
A magna cum laude graduate of the University of Rhode Island who received her J.D. from Thomas M. Cooley Law School, Hoffer was listed as a Rising Star in Michigan Super Lawyers in 2013-2014, in personal injury defense: medical malpractice.
Between law school and 2011, she served as a law clerk for three judges: Judge George Buth of the 17th Circuit Court; Judge James Robert Redford also then of the 17th Circuit Court and now Counsel to Governor Rick Snyder; and Judge William Baillargeon of the 48th Circuit Court.
Hoffer says she will now be free to pursue existing cases which have been on hold pending the outcome in Tyra and Furr.
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