Driver v. Naini

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Robert P. Young, Jr. Michael F. Cavanagh
Marilyn Kelly
Stephen J. Markman
Diane M. Hathaway
Mary Beth Kelly
Brian K. Zahra

FILED AUGUST 1, 2011

STATE OF MICHIGAN

SUPREME COURT

WILLIE DRIVER and BEVERLY DRIVER,

Plaintiffs-Appellants,

v No. 140922

MANSOOR G. NAINI, M.D., and
MICHIGAN CARDIOLOGY
ASSOCIATES, P.C.,

Defendants,

and

CARDIOVASCULAR CLINICAL
ASSOCIATES, P.C.,

Defendant-Appellee.

BEFORE THE ENTIRE BENCH

MARY BETH KELLY, J.

In this medical malpractice action, we must decide whether a plaintiff is entitled to

amend an original notice of intent (NOI) when adding a nonparty defendant to a pending
action pursuant to this Court’s holding in Bush v Shabahang1 and MCL 600.2301 so that

the amended NOI relates back to the original filing for purposes of tolling the statute of

limitations. We hold that a plaintiff is not entitled to amend an original NOI to add

nonparty defendants so that the amended NOI relates back to the original filing for

purposes of tolling the statute of limitations, and we affirm the result reached by the

Court of Appeals only and reverse the Court of Appeals’ judgment in all other respects.

I. FACTS AND PROCEDURAL HISTORY
In 2003, plaintiff Willie Driver2 visited defendant Mansoor Naini, M.D., who

administered a carcinoembryonic antigen (CEA)3 test to plaintiff. The results indicated

that plaintiff had a slightly elevated CEA level. Dr. Naini did not order a colonoscopy or

take any further action even though plaintiff was over the age of 50 and had a family

history of colon cancer. Shortly thereafter, plaintiff began experiencing unexplained

1
Bush v Shabahang, 484 Mich 156; 772 NW2d 272 (2009).
2
There are two plaintiffs in this case, but because plaintiff Beverly Driver’s claims are
derivative of Willie Driver’s claims, we use the singular term “plaintiff” to refer to the
latter throughout the opinion.
3
“Carcinoembryonic antigen” is defined as

[a] glycoprotein (carbohydrate plus protein) occurring in the feces (stool),
secretions of the liver and pancreas, and the blood plasma of patients with
neoplastic (tumors, cancers) diseases and non-neoplastic conditions, as
cancers of the colon, pancreas, breast, and lung, alcoholic cirrhosis of the
liver, inflammatory bowel disease, rectal polyps, etc. [1 Schmidt,
Attorneys’ Dictionary of Medicine (Matthew Bender & Co, Inc 2000), p C-
66.]

2
weight loss, and in 2005 a gastroenterologist diagnosed him with stage IV colon cancer

with metastasis to the liver.

On April 25, 2006, plaintiff’s counsel sent a notice of intent (NOI) to file a

medical malpractice action to Dr. Naini and Michigan Cardiology Associates, P.C.,

(MCA) as required by MCL 600.2912b(1).4 Plaintiff complied with the notice waiting

period under MCL 600.2912b(1) and timely filed a complaint against Dr. Naini and

MCA on October 23, 2006.5 Plaintiff alleged that Dr. Naini had failed to properly screen

for colon cancer and alleged that MCA was vicariously liable for the malpractice.

In January 2007, Dr. Naini and MCA sent a notice of nonparty at fault to

plaintiff’s counsel pursuant to MCR 2.112(K). Defendants named Cardiovascular

Clinical Associates, P.C. (CCA) as a potential defendant. Defendants indicated that CCA

might be vicariously liable because Dr. Naini worked for CCA at some point during his

treatment of plaintiff.

On February 1, 2007, plaintiff sent an NOI to CCA and moved to file an amended

complaint to add CCA as a defendant pursuant to MCL 600.2957(2), the nonparty fault

statute.6 The circuit court granted the motion, and, 49 days later, on March 22, 2007,

4
MCL 600.2912b(1) provides:

Except as otherwise provided in this section, 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.
5
There is no dispute that the complaint was timely and valid as to these defendants.
6
MCL 600.2957(2) provides:

3
plaintiff filed an amended complaint and added CCA as a defendant to the action. In

doing so, plaintiff failed to comply with the 91-day notice waiting period for adding a

defendant to an existing medical malpractice action under MCL 600.2912b(3).7

Subsequently, CCA moved for summary disposition, arguing that plaintiff’s claim

against it was time-barred because the statute of limitations had expired. According to

CCA, plaintiff failed to toll the statute of limitations when he did not comply with the

notice waiting period. Plaintiff responded that he had timely filed the amended complaint

in accord with the nonparty fault statute, MCL 600.2957(2). The circuit court agreed and

denied CCA’s motion.

The Court of Appeals granted CCA leave to appeal and reversed the circuit court

and remanded for entry of summary disposition in CCA’s favor.8 The Court of Appeals

held that plaintiff’s claim accrued “at the latest” when he was diagnosed with colon

cancer in November 2005 and that plaintiff had two years from that point forward to

commence an action against CCA.9 The Court of Appeals reasoned that because plaintiff

filed the amended complaint without first complying with the notice waiting period, the

Upon motion of a party within 91 days after identification of a
nonparty, the court shall grant leave to the moving party to file and serve an
amended pleading alleging 1 or more causes of action against that nonparty.
A cause of action added under this subsection is not barred by a period of
limitation unless the cause of action would have been barred by a period of
limitation at the time of the filing of the original action.
7
For purposes of this opinion, we assume, without deciding, that the 91-day notice period
under MCL 600.2912b(3) applies.
8
Driver v Naini, 287 Mich App 339; 788 NW2d 848 (2010).
9
Id. at 345.

4
complaint failed to commence an action that tolled the statute of limitations.10 The Court

of Appeals cited Burton v Reed City Hosp Corp,11 in which this Court held that a

premature complaint does not commence an action that tolls the statute of limitations in a

malpractice suit.12 Here, plaintiff filed his amended complaint 49 days13 after he sent

CCA an NOI; therefore, the Court of Appeals concluded, the premature complaint did not

toll the statute of limitations and plaintiff’s claim had become time-barred.14

However, the Court of Appeals concluded that plaintiff’s claim was saved in part

by MCL 600.2957(2).15 The Court of Appeals reasoned that because plaintiff’s claim

was partially valid under MCL 600.2957(2), yet totally barred by MCL 600.2912b, the

statutes irreconcilably conflicted.16 The Court of Appeals concluded that MCL

600.2912b was more specific and governed because it applies only in medical

malpractice actions, whereas MCL 600.2957(2) applies to actions in general.17

Accordingly, the Court of Appeals reversed the circuit court’s order denying CCA’s

motion for summary disposition and remanded for entry of summary disposition in

10
Id. at 348.
11
Burton v Reed City Hosp Corp, 471 Mich 745; 691 NW2d 424 (2005).
12
Driver, 287 Mich App at 347-348, citing Burton, 471 Mich at 753-754.
13
The Court of Appeals erroneously stated that plaintiff filed his amended complaint 39
days after he sent CCA the NOI. Id. at 348.
14
Id. at 348-349.
15
Id. at 350-351.
16
Id.
17
Id. at 352.

5
CCA’s favor.18 Plaintiff applied for leave to appeal in this Court, and we ordered and

heard oral argument on whether to grant the application.19

II. STANDARD OF REVIEW

We review de novo a circuit court’s decision on a motion for summary

disposition.20 This case requires interpretation of the several statutory provisions

involved. We also review de novo issues of statutory interpretation.21 When interpreting

the meaning of a statute, our primary goal is to discern the intent of the Legislature by

first examining the plain language of the statute.22 Statutory provisions must be read in

the context of the entire act, giving every word its plain and ordinary meaning.23 When

the language is clear and unambiguous, we will apply the statute as written and judicial

construction is not permitted.24

18
Id. at 353-355.
19
Driver v Cardiovascular Clinical Assoc, 488 Mich 957 (2010). In our order, we
directed the parties to address “whether this Court’s decision in [Bush, 484 Mich 156],
allows for the application of MCL 600.2301 in cases involving prematurely filed
complaints under MCL 600.2912b(1), and whether [Burton, 471 Mich 745], retains any
viability in light of Bush.”
20
Allison v AEW Capital Mgt, LLP, 481 Mich 419, 424; 751 NW2d 8 (2008).
21
Detroit v Ambassador Bridge Co, 481 Mich 29, 35; 748 NW2d 221 (2008).
22
In re MCI Telecom Complaint, 460 Mich 396, 411; 596 NW2d 164 (1999); Sun Valley
Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999).
23
Herman v Berrien Co, 481 Mich 352, 366; 750 NW2d 570 (2008); Macomb Co
Prosecutor v Murphy, 464 Mich 149, 158; 627 NW2d 247 (2001).
24
Danse Corp v Madison Hts, 466 Mich 175, 182; 644 NW2d 721 (2002).

6
 III. APPLICABLE LAW

MCL 600.2912b(1) requires a claimant to submit an NOI to a potential defendant

before commencing a medical malpractice suit. This requirement is mandatory25 and

applies equally to individuals and professional entities, including professional

corporations.26 Ordinarily, the claimant must then wait 182 days before filing a

complaint.27

The Legislature set forth a different set of requirements in MCL 600.2912b(3) for

adding a defendant to an existing medical malpractice action. MCL 600.2912b(3)

provides for service of additional NOIs on health professionals and health facilities that

will be added to an existing medical malpractice action as follows:

The 182-day notice period required in subsection (1) is shortened to
91 days if all of the following conditions exist:

(a) The claimant has previously filed the 182-day notice required in
subsection (1) against other health professionals or health facilities
involved in the claim.

(b) The 182-day notice period has expired as to the health
professionals or health facilities described in subdivision (a).

(c) The claimant has filed a complaint and commenced an action
alleging medical malpractice against 1 or more of the health professionals
or health facilities described in subdivision (a).

25
Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 65; 642 NW2d 663 (2002); Burton,
471 Mich at 752-753, citing Omelenchuk v City of Warren, 461 Mich 567, 572; 609
NW2d 177 (2000).
26
Potter v McLeary, 484 Mich 397, 402-403; 774 NW2d 1 (2009).
27
MCL 600.2912b(1). A claimant need only wait 154 days if the potential defendant
fails to submit a timely response. MCL 600.2912b(8).

7
 (d) The claimant did not identify, and could not reasonably have
identified a health professional or health facility to which notice must be
sent under subsection (1) as a potential party to the action before filing the
complaint. [Emphasis added.]

The 91-day waiting period required by MCL 600.2912b(3) is consistent with MCL

600.2957(2), which applies to lawsuits generally.28 MCL 600.2957(2) provides:

Upon motion of a party within 91 days after identification of a
nonparty, the court shall grant leave to the moving party to file and serve an
amended pleading alleging 1 or more causes of action against that nonparty.
A cause of action added under this subsection is not barred by a period of
limitation unless the cause of action would have been barred by a period of
limitation at the time of the filing of the original action. [Emphasis added.]

28
The Court of Appeals clearly erred by holding that MCL 600.2912b irreconcilably
conflicts with MCL 600.2957(2). The conflict analysis was unnecessary because the
Court incorrectly determined that plaintiff’s claim was partially saved by MCL
600.2957(2), but completely barred by MCL 600.2912b. As explained later in this
opinion, plaintiff’s entire claim was time-barred, and neither statute saved the claim.
Moreover, the Court of Appeals failed to consider how the 91-day period in MCL
600.2957(2) is consistent with the 91-day notice waiting period in MCL 600.2912b(3).
Specifically, nothing in MCL 600.2957(2) excuses a plaintiff from having to wait until
the notice period expires before commencing an action against a defendant as is required
by MCL 600.2912b(3). MCL 600.2957(2) only requires a plaintiff to file a motion to add
a defendant within 91 days of receiving notice of the nonparty at fault; it does not require
the plaintiff to file the amended complaint within 91 days. Therefore, a plaintiff can file
a motion to add a defendant within 91 days after receiving notice of the nonparty, file an
amended NOI, and wait until the notice period expires before filing an amended
complaint. And while MCR 2.112(K)(4) (the court rule governing the addition of
nonparties to a pending action) does seem to require that a plaintiff file an amended
complaint within 91 days, it also states that “[t]he court may permit later amendment as
provided in MCR 2.118,” and under MCR 2.118(A)(2) “[l]eave shall be freely given
when justice so requires.” Given the foregoing, the dissent’s assertion that MCL
600.2912b and MCL 600.2957(2) are only reconcilable if read in concert with MCL
600.2301 is plainly wrong. To summarize, in order to add a nonparty at fault to a
medical malpractice case, a plaintiff should move to add the nonparty within 91 days of
receiving notice of that nonparty. Then, in a motion to amend a claim, the plaintiff
should indicate that he or she intends to file the amended claim at the conclusion of the
NOI waiting period.

8
 When a claimant files an NOI with time remaining on the applicable statute of

limitations, that NOI tolls the statute of limitations for up to 182 days with regard to the

recipients of the NOI.29 In a medical malpractice action, a claimant normally has two

years from the time his claim accrues to commence a suit.30 A medical malpractice claim

accrues “at the time of the act or omission that is the basis for the claim . . . , regardless of

the time the plaintiff discovers or otherwise has knowledge of the claim.”31 However,

when a plaintiff discovers a claim two or more years after the alleged negligent act

occurred, then the plaintiff must commence an action “within 6 months after the plaintiff

discovers or should have discovered the existence of the claim, whichever is later.”32

29
MCL 600.5856(c) provides:

The statutes of limitations or repose are tolled in any of the
following circumstances:

* * *

(c) At the time notice is given in compliance with the applicable
notice period under section [MCL 600.2912b], if during that period a claim
would be barred by the statute of limitations or repose; but in this case, the
statute is tolled not longer than the number of days equal to the number of
days remaining in the applicable notice period after the date notice is given.

See, also, Waltz v Wyse, 469 Mich 642, 646 n 6; 677 NW2d 813 (2004).
30
MCL 600.5838a(2); MCL 600.5805(1) and (6).
31
MCL 600.5838a(1).
32
MCL 600.5838a(2) (emphasis added). This provision is generally referred to as the
discovery rule.

9
 IV. ANALYSIS

A. PLAINTIFF DID NOT TOLL THE STATUTE OF LIMITATIONS APPLICABLE
TO CCA AND HIS SUIT IS TIME-BARRED

In this case, the six–month discovery rule provides the applicable limitations

period.33 Plaintiff alleged in his complaint that Dr. Naini failed to screen for cancer in

2003 after a test showed that he had an elevated CEA level. This was the negligent act

that formed the basis for his claim. Because the claim accrued in 2003 and plaintiff

discovered the claim more than two years later, the six-month discovery rule applied.

Contrary to the Court of Appeals’ erroneous conclusion, the November 2005 diagnosis of

cancer was not the negligent act that gave rise to plaintiff’s claim.34 Accordingly,

plaintiff had six months from November 2005 (i.e., until May 2006) to commence a

medical malpractice action against all defendants.35

33
The dissent makes inconsistent statements regarding application of the discovery rule
in this case, and states that “at least portions” of plaintiff’s claims against CCA are
governed by the standard two-year statute of limitations because plaintiff alleged that Dr.
Naini negligently treated him until November 2005. Post at 7. However, the dissent
overlooks the fact that plaintiff conceded in his brief on appeal and during oral argument
that the six-month discovery rule governs his negligence claim with regard to CCA.
Nevertheless, as discussed later in this opinion, even if a portion of plaintiff’s claims
were governed by the two-year statute of limitations, plaintiff failed to commence an
action against CCA that tolled the statute of limitations because his complaint against
CCA was premature. See Burton, 471 Mich at 753-754. Thus, plaintiff’s claims would
be time-barred even if the two-year limitations period were applicable. See id.
34
See MCL 600.5838a(1) (stating that a medical malpractice claim “accrues at the time
of the act or omission that is the basis for the claim . . . regardless of the time the plaintiff
discovers or otherwise has knowledge of the claim”) (emphasis added).
35
MCL 600.5838(2).

10
 There is no dispute that plaintiff timely filed suit within this six-month period with

respect to Dr. Naini and MCA. Plaintiff provided those defendants an NOI in April 2006

and then waited 182 days before filing his complaint in October 2006. Plaintiff,

however, first provided CCA an NOI in February 2007 and filed a complaint against

CCA in March 2007, long after the six-month discovery period expired in May 2006.

Because a medical malpractice plaintiff must provide every defendant a timely NOI in

order to toll the limitations period applicable to the recipient of the NOI, plaintiff failed to

toll the limitations period applicable to CCA.36 Hence, plaintiff’s complaint was time-

barred with regard to CCA, and the Court of Appeals properly remanded the case for

entry of summary disposition in CCA’s favor.37

B. BUSH v SHABAHANG IS INAPPLICABLE

Plaintiff, however, argues that he should be permitted to amend his original NOI

pursuant to this Court’s holding in Bush38 and MCL 600.230139 so that the NOI he sent to

36
MCL 600.5856(c); MCL 600.2912b(1); Potter, 484 Mich at 402-403.
37
MCL 600.5838a(2) (“A medical malpractice action that is not commenced within the
time prescribed by this subsection is barred.”).
38
Bush v Shabahang, 484 Mich 156.
39
MCL 600.2301 provides:

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.

11
CCA relates back in time to his original NOI. According to plaintiff, allowing

amendment and relation back would preserve tolling with respect to all three defendants.

In Bush, the plaintiff sent an NOI to multiple defendants two days before the

statute of limitations was set to expire.40 The defendants moved for summary disposition

and argued in part that the plaintiff’s NOI was defective because it failed to state a

particularized standard of care.41 The circuit court granted summary disposition with

regard to three of the defendants, but denied summary disposition with respect to certain

claims against defendants Spectrum Health and West Michigan Cardiovascular Surgeons

(WMCS).42 On appeal, the Court of Appeals held that the plaintiff’s NOI did not comply

with the requirements of MCL 600.2912b(4) with respect to certain claims of liability

against WMCS and Spectrum Health.43 The Court affirmed in part, reversed in part, and

remanded to the circuit court for entry of partial summary disposition without prejudice

of these claims, but held that the statute of limitations remained tolled until entry of the

judgment of summary disposition.44 This Court granted leave to appeal and addressed

whether a defective NOI tolls the statute of limitations under MCL 600.5856(c).45 The

Bush majority held that when an NOI fails to meet all of the content requirements under

40
Bush v Shabahang, 278 Mich App 703, 707; 753 NW2d 271 (2008).
41
Id.
42
Id. at 706-708, 716-719.
43
Id. at 718-719, 726-727.
44
Id. at 727.
45
Bush, 484 Mich at 164.

12
MCL 600.2912b(4),46 MCL 600.2301 allows a plaintiff to amend the NOI and preserve

tolling unless the plaintiff failed to make a good-faith effort to comply with MCL

600.2912b(4).47

Bush is inapplicable to the present circumstances. At the outset we note that the

holding in Bush that a defective yet timely NOI could toll the statute of limitations simply

does not apply here because CCA never received a timely, albeit defective, NOI. More

importantly, and contrary to the dissent’s analysis, the facts at issue do not trigger

application of MCL 600.2301. That statute states:

46
MCL 600.2912b(4) provides:
The notice given to a health professional or health facility under this
section shall contain a statement of at least all of the following:

(a) The factual basis for the claim.

(b) The applicable standard of practice or care alleged by the
claimant.

(c) The manner in which it is claimed that the applicable standard of
practice or care was breached by the health professional or health facility.

(d) The alleged action that should have been taken to achieve
compliance with the alleged standard of practice or care

(e) The manner in which it is alleged the breach of the standard of
practice or care was the proximate cause of the injury claimed in the notice.

(f) The names of all health professionals and health facilities the
claimant is notifying under this section in relation to the claim.
47
Bush, 484 Mich at 176-178. In doing so, the Bush majority questioned precedent set
forth in Roberts, 466 Mich at 57, and Boodt v Borgess Med Ctr, 481 Mich 558; 751
NW2d 44 (2008). See Bush, 484 Mich at 165-170, 175 n 34; id. at 190-192, 199-200
(MARKMAN, J., dissenting).

13
 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.
[Emphasis added.]

By its plain language, MCL 600.2301 only applies to actions or proceedings that are

pending.48 Here, plaintiff failed to commence an action against CCA before the six-

month discovery period expired, and his claim was therefore barred by the statute of

limitations. “An action is not ‘pending’ if it cannot be ‘commenced’ . . . .”49 In Bush,

however, this Court explained that an NOI is part of a medical malpractice

“proceeding.”50 The Court explained that, “[s]ince an NOI must be given before a

medical malpractice claim can be filed, the service of an NOI is a part of a medical

malpractice ‘proceeding.’ As a result, [MCL 600.2301] applies to the NOI ‘process.’”51

Although plaintiff gave CCA an NOI, he could not file a medical malpractice claim

against CCA because the six-month discovery period had already expired. Service of the

NOI on CCA could not, then, have been part of any “proceeding” against CCA because

plaintiff’s claim was already time-barred when he sent the NOI. A proceeding cannot be

pending if it was time-barred at the outset. Therefore, MCL 600.2301 is inapplicable

because there was no action or proceeding pending against CCA in this case.

48
Boodt, 481 Mich at 563 n 4.
49
Bush, 484 Mich at 195 (MARKMAN, J., dissenting).
50
Id. at 176.
51
Id. at 176-177 (emphasis added).

14
 Moreover, amendment of the original NOI to allow plaintiff to add CCA would

not be “‘for the furtherance of justice’” and would affect CCA’s “substantial rights.”52

Every defendant in a medical malpractice suit is entitled to a timely NOI. The legislative

purpose behind the notice requirement “was to provide a mechanism for ‘promoting

settlement without the need for formal litigation, reducing the cost of medical malpractice

litigation, and providing compensation for meritorious medical malpractice claims that

would otherwise be precluded from recovery because of litigation costs . . . .’”53

Applying MCL 600.2301 in the present case would deprive CCA of its statutory right to a

timely NOI followed by the appropriate notice waiting period, and CCA would be denied

an opportunity to consider settlement. CCA would also be denied its right to a statute-of-

limitations defense. These outcomes are plainly contrary to, and would not be in

furtherance of, the Legislature’s intent in enacting MCL 600.2912b.

In addition, allowing a claimant to amend an original NOI to add nonparty

defendants conflicts with the statutory requirements that govern the commencement of a

medical malpractice action and tolling of the statute of limitations. MCL 600.2912b(1)

states that

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. [Emphasis added.]

52
Id. at 177, quoting MCL 600.2301.
53
Id. at 174, quoting Senate Legislative Analysis, SB 270, August 11, 1993; House
Legislative Analysis, HB 4403 to 4406, March 22, 1993.

15
We have construed this provision as containing a dual requirement: A plaintiff must (1)

submit an NOI to every health professional or health facility before filing a complaint54

and (2) wait the applicable notice waiting period with respect to each defendant before he

or she can commence an action.55 A plaintiff has the burden of ensuring compliance with

these mandates.56 With regard to the requirement that a plaintiff provide every defendant

an NOI during the applicable limitations period before filing a complaint, nothing in Bush

eliminates this requirement. Permitting amendment to add time-barred nonparty

defendants to an original NOI on the basis of Bush would render the NOI requirement

meaningless and the provision pertaining to nonparty defendants, MCL 600.2912b(3),

nugatory.57

Nor does Bush compel the conclusion that a plaintiff can add a nonparty defendant

and avoid compliance with the notice waiting period by simply amending the original

NOI. As we explained in Burton, when a plaintiff fails to strictly comply with the notice

waiting period under MCL 600.2912b, his or her prematurely filed complaint fails to

commence an action that tolls the statute of limitations.58 The plaintiff in Burton

54
See Omelenchuk v City of Warren, 461 Mich 567, 572; 609 NW2d 177 (2000); Potter,
484 Mich at 402-403.
55
Burton, 471 Mich at 752-754.
56
Id. at 753, citing Roberts, 466 Mich at 66.
57
See State Farm Fire & Cas Co v Old Republic Ins Co, 466 Mich 142, 146; 644 NW2d
715 (2002) (“Courts must give effect to every word, phrase, and clause in a statute and
avoid an interpretation that would render any part of the statute surplusage or nugatory.”).
58
Burton, 471 Mich at 753.

16
underwent abdominal surgery at the defendant hospital and suffered complications

allegedly caused by the defendants’ negligence.59 The plaintiff sent the defendants an

NOI and, 115 days later, filed a complaint.60 After the statute of limitations expired, the

defendants moved for summary disposition and argued that the plaintiff had failed to

comply with the notice waiting period under MCL 600.2912b.61 The defendants argued

that the premature complaint failed to toll the statute of limitations, and we agreed.62 We

parsed the language of MCL 600.2912b and explained that it “unequivocally provides

that a person ‘shall not’ commence an action alleging medical malpractice against a

health professional or health facility until the expiration of the statutory notice period.”63

We stated:

The directive in [MCL 600.2912b(1)] that a person “shall not”
commence a medical malpractice action until the expiration of the notice
period is similar to the directive in [MCL 600.2912d(1)] that a plaintiff’s
attorney “shall file with the complaint an affidavit of merit . . . .” Each
statute sets forth a prerequisite condition to the commencement of a
medical malpractice lawsuit. The filing of a complaint before the
expiration of the statutorily mandated notice period is no more effective to
commence a lawsuit than the filing of a complaint without the required

59
Id. at 747.
60
Id. at 748.
61
Id. at 749.
62
Id.
63
Id. at 752. The Court’s holding in Burton that a plaintiff cannot commence his or her
action until the notice period has expired was unanimous. See id. at 758, 762-764, 766-
767 (KELLY, J., dissenting).

17
 affidavit of merit. In each instance, the failure to comply with the statutory
requirement renders the complaint insufficient to commence the action.[64]

In sum, the significance of Burton is that a plaintiff cannot commence an action that tolls

the statute of limitations against a particular defendant until the plaintiff complies with

the notice-waiting-period requirements of MCL 600.2912b.

Nothing in Bush altered our holding in Burton.65 The central issue in Bush

involved the effect an NOI had on tolling when the NOI failed to comply with the content

requirements of MCL 600.2912b(4).66 The central issue in Burton involved the effect the

plaintiff’s failure to comply with the notice-waiting-period requirements had on tolling.

Indeed, the Bush Court repeatedly emphasized that the focus of MCL 600.5856(c) is

compliance with the notice waiting period set forth in MCL 600.2912b.67 In contrast to

placing doubt on the viability of Burton, this aspect of Bush aligned with Burton’s

holding that a plaintiff must comply with the notice waiting period to ensure the

complaint tolls the statute of limitations.68

64
Id. at 753-754 (majority opinion) (emphasis added).
65
We decline plaintiff’s invitation to depart from well-settled precedent and overrule
Burton. Rather, we adhere to the doctrine of stare decisis. See Robinson v Detroit, 462
Mich 439, 463; 613 NW2d 307 (2000) (“Stare decisis is generally ‘the preferred course
because it promotes the evenhanded, predictable, and consistent development of legal
principles, fosters reliance on judicial decisions, and contributes to the actual and
perceived integrity of the judicial process.’”), quoting Hohn v United States, 524 US 236,
251; 118 S Ct 1969; 141 L Ed 2d 242 (1998).
66
Bush, 484 Mich at 164-172.
67
Id. at 169-170.
68
Indeed, Bush repeatedly recognized that NOI must be timely filed. See, for example,
Bush, 484 Mich at 161 (“[T]he current statute, [MCL 600.5856(c)], makes clear that the
question whether tolling applies is determined by the timeliness of the NOI.”); id. (“[I]f

18
 Additional concerns support our conclusion that a plaintiff cannot amend an

originally filed NOI to add a nonparty defendant. Not only would such a rule be contrary

to the plain language of the statutory provisions at issue, but it would create a situation

permitting endless joinder of nonparty defendants. Plaintiff would have us allow a

claimant in a malpractice action to preserve claims against an infinite number of potential

nonparty defendants by simply submitting an NOI to a single defendant. This would

absolve a plaintiff of his or her statutory burden to preserve tolling in accord with the

prerequisites explained in Burton. Absent the statutory mechanisms governing tolling, a

claimant could continually add nonparty defendants to an existing action for an undefined

amount of time. This result is contrary to the plain language of MCL 600.2912b and

MCL 600.5856(c).

Moreover, amendment and relation back would defeat the very principles

underlying limitations periods. In Moll v Abbott Laboratories69 we explained that

[s]tatutes of limitations are intended to compel the exercise of a right of
action within a reasonable time so that the opposing party has a fair
opportunity to defend; to relieve a court system from dealing with stale

an NOI is timely, the statute of limitations is tolled . . . .”); id. at 169 (“[T]he focus of the
new [MCL 600.5856(c)] is unquestionably limited to compliance with the ‘applicable
notice period.’”); id. (“[I]f a plaintiff complies with the applicable notice period before
commencing a medical malpractice action, the statute of limitations is tolled.”); id. at 170
(“[A] plaintiff’s NOI must comply only with the applicable notice period.”); id. at 172
(“The plain language of [MCL 600.2912b(1)] mandates that a plaintiff shall not
commence an action for medical malpractice without filing a timely NOI.”); id. at 184
(“If a court ultimately determines that the [defendant’s] response is not defective,
plaintiff’s complaint [filed 154 days, rather than 182 days after the NOI] may be deemed
untimely.”).
69
Moll v Abbott Laboratories, 444 Mich 1, 14; 506 NW2d 816 (1993).

19
 claims, where the facts in dispute occurred so long ago that evidence was
either forgotten or manufactured; and to protect potential defendants from
protracted fear of litigation.[70]

Were a plaintiff able to continually add nonparty defendants to a malpractice action, the

nonparty defendants would be exposed to protracted fear of litigation and plaintiffs would

not be compelled to promptly prosecute claims once they submitted an NOI to a single

defendant. Nonparty defendants would not be provided a fair opportunity to defend

against claims, as the facts underlying the claim could have occurred long before the

party was added to the suit. Courts would be required to shepherd stale claims through

their dockets, which could result in delay and docket congestion. We decline to adopt

such a radical departure from the Legislature’s carefully crafted framework that governs

commencement and tolling in a medical malpractice suit.

C. MCL 600.2957(2) DOES NOT SAVE PLAINTIFF’S CLAIM

Plaintiff also contends that application of MCL 600.2301 in this case is necessary

to ensure that a medical malpractice claimant whose claim is governed by the six-month

discovery rule can subsequently add a nonparty at fault under MCL 600.2957(2). MCL

600.2957(2) provides:

Upon motion of a party within 91 days after identification of a
nonparty, the court shall grant leave to the moving party to file and serve an
amended pleading alleging 1 or more causes of action against that nonparty.
A cause of action added under this subsection is not barred by a period of
limitation unless the cause of action would have been barred by a period of
limitation at the time of the filing of the original action. [Emphasis added.]

70
Id., quoting Bigelow v Walraven, 392 Mich 566, 576; 221 NW2d 328 (1974) (quotation
marks omitted).

20
With respect to the present case, the key language in this provision allows a party to add a

defendant to an action if the claim against the new defendant would not have been time-

barred “at the time of the filing of the original action.”71 Plaintiff commenced the

original action against Dr. Naini and MCA in October 2006. At that time, the statute of

limitations had long since expired with respect to CCA. As noted earlier, the complaint

was timely with respect to Dr. Naini and MCA because plaintiff sent those defendants an

NOI that tolled the statute of limitations. That NOI did not toll the statute of limitations

with respect to CCA. Hence, plaintiff could not add CCA pursuant to MCL 600.2957(2)

because plaintiff’s claim against CCA would have been barred at the time the original

action was filed.72

71
The dissent misconstrues this language as creating an independent cause of action or an
additional limitations period. Post at 8 (stating that MCL 600.2957(2) “creates its own
91-day window in which a plaintiff can bring a claim against the identified nonparty at
fault”). However, a closer reading of the statutory language reveals that it does not create
an independent cause of action or limitations period. Rather, the statute allows a plaintiff
to utilize the original filing to add a nonparty at fault if and only if the plaintiff’s claim
against the nonparty defendant would not have been barred at the time of the filing of the
original action. MCL 600.2957(2).
72
The dissent states that we erroneously conclude that plaintiff cannot use the 91-day
window under MCL 600.2957(2) “because plaintiff did not provide an NOI to CCA six
months before filing the original action.” Post at 9. The dissent wrongly asserts that our
holding renders “an entire provision of the [statute] . . . . nugatory” and runs counter to
“the intent of the Legislature . . . .” Post at 10. As we explained earlier, MCL
600.2957(2), MCL 600.2912b(3), and MCR 2.112(K)(4) all work in concert to allow a
plaintiff to add a nonparty to an existing malpractice action. Unlike the dissent, we will
adhere to the plain language of the statute because we believe it is the best indicator of
the Legislature’s intent. See Danse Corp, 466 Mich at 181-182. Under the plain
language of MCL 600.2957(2), plaintiff simply cannot add CCA to the action because his
claim with regard to CCA was time-barred at the time he originally filed an action against
Dr. Naini and MCA.

21
 Plaintiff contends that the notice waiting period will always serve to exhaust the

six-month limitations period applicable to a claim governed by the discovery rule.

Plaintiff argues that it is necessary that he be able to amend his original NOI in order to

avail himself of the provisions of MCL 600.2957(2). Plaintiff’s argument is unpersuasive

for two reasons: first, a claimant can toll the six-month limitations period by filing an

NOI before that limitations period expires; second, as articulated earlier, allowing

plaintiff to amend the original NOI so that he or she can add a nonparty under MCL

600.2957(2) runs counter to the Legislative framework governing commencement of and

tolling in malpractice actions. We cannot ignore the plain language of MCL 600.2912b

to permit a plaintiff to utilize MCL 600.2957(2) under the present circumstances.73

Moreover, we presume the Legislature was aware of the nuance between adding a

nonparty at fault under MCL 600.2957(2) and the notice waiting period under MCL

600.2912b (i.e., that the 182-day waiting period virtually engulfs the discovery rule’s six-

month limitations period) when it enacted MCL 600.2957 in 1995 PA 161 as part of the

1995 tort reform legislation.74 Further, in enacting the tort reform legislation, the

Legislature eliminated joint and several liability in tort actions with the exception of

medical malpractice suits.75 As joint and several liability remains the rule, inclusion of

73
See Danse Corp, 466 Mich at 181-182.
74
See Walen v Dep’t of Corrections, 443 Mich 240, 248; 505 NW2d 522 (1993) (“It is a
well-known principle that the Legislature is presumed to be aware of, and thus to have
considered the effect on, all existing statutes when enacting new laws”).
75
See MCL 600.2956; MCL 600.6304.

22
all potential parties in a medical malpractice action is not necessary in order for a plaintiff

to secure full recovery.

V. RESPONSE TO THE DISSENT

Although the dissent accuses the majority of misinterpreting the statutes at issue, it

is obvious from the dissent’s dire attempt to save plaintiff’s claim that it is in fact the

dissent that misconstrues the statutory framework governing medical malpractice claims.

Central to the dissent’s flawed analysis is its failure to recognize that plaintiff’s claims

against CCA, MCA, and Dr. Naini accrued at the same time when plaintiff discovered the

negligent act and were governed by the same six-month limitations period. Thus, when

plaintiff failed to provide CCA an NOI within that six-month period, plaintiff’s claim

became time-barred. The dissent, however, erroneously posits that plaintiff’s claim

accrued against CCA when plaintiff learned that CCA might be vicariously liable. This

conclusion is wholly unsupported by law and ignores the statutory framework governing

claim accrual. Receipt of notice of a nonparty at fault under MCL 600.2957(2) is

irrelevant to determining the date of accrual of a medical malpractice claim.76 Nor did

76
The dissent erroneously claims that this assertion “is contrary to any logical reading of
the discovery rule.” Post at 7 n 13. However, this is not so under the plain language of
the statutory rules governing claim accrual. Although we have already explained the
statutory framework governing claim accrual in detail, we once again make this point: a
medical malpractice claim accrues “at the time of the act or omission that is the basis for
the claim . . . regardless of the time the plaintiff discovers or otherwise has knowledge of
the claim.” MCL 600.5838a(1) (emphasis added). When a plaintiff learns of an alleged
negligent act or omission that will form the basis of his or her claim two or more years
after its occurrence, that plaintiff has six months from that point forward to commence an
action against all defendants who are responsible for the alleged negligent act or
omission, including defendants who are vicariously liable. MCL 600.5838a(2). Contrary
to the dissent’s erroneous assertion, under MCL 600.5838a(2), a plaintiff does not have a
new six-month discovery period every time he or she learns of a new nonparty at fault.

23
MCL 600.2957(2) provide plaintiff with an additional 91 days in which to commence an

action against the nonparty defendant, as the dissent asserts. As we have explained, that

provision, by its plain language, is not a tolling provision, nor does it otherwise provide

an additional basis on which to bring a claim.

Moreover, the dissent overlooks the significance of Burton. Plaintiff failed to

comply with the 91-day notice waiting period under MCL 600.2912b(3) after he sent

CCA an NOI. Pursuant to Burton, the premature complaint failed to commence an action

that tolled the statute of limitations, and his claim was time-barred when the Court of

Appeals issued its opinion and order reversing the circuit court’s order denying CCA’s

motion for summary disposition and remanding the case to the circuit court for the entry

of an order of summary disposition in CCA’s favor. Although the dissent claims that

Burton is inapplicable to the present case, the dissent would essentially overrule Burton

and disregard the notice-waiting-period requirements mandated by MCL 600.2912b.

Unlike the dissent, we will adhere to the plain language of MCL 600.2912b and binding

precedent established in Burton.

Finally, the dissent’s attempt to save plaintiff’s claim through reliance on MCL

600.2301 is unavailing. As we previously stated, MCL 600.2301 does not apply in this

case because it only applies in actions or proceedings that are “pending.” Plaintiff’s

claim with regard to CCA was time-barred from the outset; hence, it was not “pending”

MCL 600.5838a(2). Thus, it is the dissent’s, not the majority’s, construction of MCL
600.5838a(2) that is “contrary to any logical reading” of the plain language of that
provision.

24
because it could not be commenced.77 While the dissent acknowledges that amendment

under MCL 600.2301 would deprive CCA of the period permitted for the parties to

attempt to settle the claim, it concludes that deprivation of this period would not affect

CCA’s substantial rights because there is no indication that CCA would have settled the

claim. The dissent further posits that, because plaintiff “attempted to follow the

applicable procedural requirements” for adding a nonparty at fault, allowing amendment

under MCL 600.2301 would be “in the furtherance of justice.”78 However, the dissent’s

eagerness to do away with the statutory framework governing notice, limitations periods,

and claim accrual simply because plaintiff “attempted” to comply with MCL 600.2957(2)

amounts to nothing more than an effort to judicially toll the statute of limitations

applicable to CCA by permitting plaintiff to amend the original NOI under MCL

600.2301.

VI. CONCLUSION

Plaintiff failed to commence an action against CCA before the statutory

limitations period expired and his amended complaint was time-barred. Plaintiff was not

entitled to amend his original NOI and preserve tolling with regard to CCA because that

would be counter to the legislative framework governing commencement of and tolling in

a medical malpractice action. Because entry of summary disposition in CCA’s favor was

77
See Bush, 484 Mich at 195 (MARKMAN, J., dissenting) (“An action is not ‘pending’ if it
cannot be ‘commenced . . . .’”).
78
Post at 15.

25
warranted, we affirm the result reached by the Court of Appeals only and reverse the

Court of Appeals’ judgment in all other respects.

Mary Beth Kelly
Robert P. Young, Jr.
Stephen J. Markman
Brian K. Zahra

26
 STATE OF MICHIGAN

SUPREME COURT

WILLIE DRIVER and BEVERLY DRIVER,

Plaintiffs-Appellants,

v No. 140922

MANSOOR G. NAINI, M.D., and
MICHIGAN CARDIOLOGY
ASSOCIATES, P.C.,

Defendants,

and

CARDIOVASCULAR CLINICAL
ASSOCIATES, P.C.,

Defendant-Appellee.

YOUNG, C.J. (concurring).
Although the majority opinion correctly recognizes that Potter v McLeary controls

whether a medical malpractice claimant must serve a notice of intent (NOI) on a

professional corporation (PC) before initiating a lawsuit,1 I continue to adhere to my

partial dissent in Potter.2 Nevertheless, I join the majority opinion because it faithfully

1
See ante at 7, citing Potter v McLeary, 484 Mich 397, 402-403; 774 NW2d 1 (2009).
2
Potter, 484 Mich at 431 (YOUNG, J., concurring in part and dissenting in part).
applies the rule established in Potter and because the jurisprudence of this state benefits

from having a clear majority rule of law in this case.3

Robert P. Young, Jr.

3
I note, additionally, that application of my partial dissent in Potter to the facts of this
case would yield an identical result. MCL 600.2912b requires a medical malpractice
plaintiff to serve an NOI on every potential defendant “health facility” and “health
professional” a specified number of days before filing its lawsuit. Because a PC is
neither a “health facility” nor a “health professional,” it is not entitled to receive an NOI
before being sued. Accordingly, under my partial dissent in Potter, defendant
Cardiovascular Clinical Associates, P.C. (CCA), would not be entitled to dismissal on
this basis.

Nevertheless, under my partial dissent in Potter, CCA would be entitled to
summary disposition on statute of limitations grounds. Pursuant to the nonparty fault
statute, MCL 600.2957(2), a new claim “is not barred by a period of limitation unless the
cause of action would have been barred by a period of limitation at the time of the filing
of the original action.” In this case, at the time of the filing of the original action,
plaintiffs acknowledge that they were already outside the 6-month discovery period of
limitations applicable in the instant case. Moreover, they cannot avail themselves of
tolling from the date of the original NOI (which tolled the running of the period of
limitations with regard to the originally named defendants) because NOI tolling “is
expressly claim specific” in that the tolling statute, MCL 600.5856(c), “restates what is
tolled (‘the statute’), which specifies that tolling is limited to only one statute . . . .”
Potter, 484 Mich at 444 (YOUNG, J., concurring in part and dissenting in part).

2
 STATE OF MICHIGAN

SUPREME COURT

WILLIE DRIVER and BEVERLY DRIVER,

Plaintiffs-Appellants,

v No. 140922

MANSOOR G. NAINI, M.D., and
MICHIGAN CARDIOLOGY
ASSOCIATES, P.C.,

Defendants,

and

CARDIOVASCULAR CLINICAL
ASSOCIATES, P.C.,

Defendant-Appellee.

HATHAWAY, J. (dissenting).
This case addresses the procedural requirements imposed on medical malpractice

actions by the notice of intent (NOI) statute1 and the notice of nonparty fault (NNPF)

statute.2 At issue are the statutory time requirements for adding a defendant, who has

been identified as a nonparty at fault, to a pending medical malpractice action. The

1
MCL 600.2912b.
2
MCL 600.2957(2).
majority holds that plaintiff’s action against the identified nonparty at fault,

Cardiovascular Clinical Associates, P.C. (CCA), must be dismissed with prejudice

because it was not commenced before the expiration of the period of limitations. The

majority also opines that plaintiff is not entitled to amend his original NOI. I respectfully

dissent because the majority has incorrectly interpreted the relevant statutes, including the

applicable statutes of limitations.3

Plaintiff Willie Driver’s original complaint alleging medical malpractice was filed

against defendant Mansoor Naini, M.D., and his employer, defendant Michigan

Cardiology Associates, P.C. (MCA), on October 23, 2006.4 The lawsuit alleged that

plaintiff was treated by Dr. Naini for approximately 22 years, and his last visit was in

October 2005. Plaintiff alleged that after he reached the age of 50, Dr. Naini failed to

perform any routine colon cancer screening, despite plaintiff’s age and the fact that he

had a family history of colon cancer. Plaintiff further alleged that in November 2005 he

was diagnosed with stage IV colon cancer with metastasis to the liver and that, if Dr.

Naini had performed routine screening, plaintiff’s cancer would have been diagnosed at a

much earlier stage.

On January 15, 2007, MCA and Dr. Naini identified CCA as a nonparty at fault.

The NNPF set forth the following:

3
MCL 600.5805(6) and MCL 600.5838a(2).
4
There are two plaintiffs in this case, Willie Driver and his wife, Beverly Driver. The
majority uses the singular term “plaintiff” because Beverly Driver’s claims are derivative
of Willie Driver’s claims. To avoid confusion, I will also use the singular term
“plaintiff.”

2
 Although Defendants have denied and continue to deny any claimed
violations of the standard of practice in regard to the care and treatment
rendered or allegedly rendered to Wiliie [sic] Driver, it is believed that
Mansoor C. Naini, M.D., was an employee and or agent of Cardiovascular
Clinical Associates, P.C., during the times called into question by the
plaintiffs. Thus, to the extent that the plaintiff’s allegations are true, and
those allegations have been and continue to be denied, Cardiovascular
Clinical Associates, P.C., is or may be legally responsible, pursuant to the
legal doctrine of respondeat superior or vicarious liability, for any and all
alleged acts of professional negligence of its agent, actual and/or ostensible,
servants and or employee, Mansoor C. Naini, M.D. Specifically, the
alleged failure to recommend that Mr. Driver undergo a routine
colonoscopy once he reached the age of 50 and/or failing to follow up on
allegedly abnormal lab values, such as an elevated [carcinoembryonic
antigen level].

In response to receiving this notice, plaintiff provided an NOI to CCA on February 1,

2007. Plaintiff also filed a motion to amend his complaint to add CCA as a defendant

and filed suit against CCA on March 22, 2007. The majority holds that plaintiff’s NOI

and complaint against CCA were untimely. I disagree.

To determine whether plaintiff’s NOI and complaint against CCA were timely, we

must consider the NOI and NNPF statutes, as well as the applicable statutes of

limitations.5 Given that this action was filed against CCA as a result of its designation as

5
In examining a statute, we follow the established rules of statutory construction. The
purpose of statutory construction is to discern and give effect to the intent of the
Legislature. Potter v McLeary, 484 Mich 397, 410; 774 NW2d 1 (2009), citing Sun
Valley Foods Co v Ward, 460 Mich 230, 236; 596 NW2d 119 (1999). In doing so, we
first look to the actual language of the statute. Potter, 484 Mich at 410. If a statute is
clear and unambiguous, it must be enforced as written and no further judicial construction
is allowed. Sun Valley, 460 Mich at 236. Further, a statute must be read as a whole, and
while individual words and phrases are important, the words and phrases should be read
in the context of the entire legislative scheme. Herman v Berrien Co, 481 Mich 352, 366;
750 NW2d 570 (2008).

3
a nonparty at fault, the proper starting point for our analysis is the NNPF statute, MCL

600.2957. That statute provides:

(1) In an action based on tort or another legal theory seeking
damages for personal injury, property damage, or wrongful death, the
liability of each person shall be allocated under this section by the trier of
fact and, subject to [MCL 600.6304], in direct proportion to the person’s
percentage of fault. In assessing percentages of fault under this subsection,
the trier of fact shall consider the fault of each person, regardless of
whether the person is, or could have been, named as a party to the action.

(2) Upon motion of a party within 91 days after identification of a
nonparty, the court shall grant leave to the moving party to file and serve an
amended pleading alleging 1 or more causes of action against that nonparty.
A cause of action added under this subsection is not barred by a period of
limitation unless the cause of action would have been barred by a period of
limitation at the time of the filing of the original action.

(3) [MCL 600.2956 to 600.2960] do not eliminate or diminish a
defense or immunity that currently exists, except as expressly provided in
those sections. Assessments of percentages of fault for nonparties are used
only to accurately determine the fault of named parties. If fault is assessed
against a nonparty, a finding of fault does not subject the nonparty to
liability in that action and shall not be introduced as evidence of liability in
another action.

As evidenced by the plain language of the statute, its purpose is to allow the trier

of fact to assess the appropriate percentage of fault attributable to each of the named

parties in an action. In order to accomplish this, the statute allows parties to identify

nonparties as liable, so that a nonparty’s proportionate share of responsibility may be

determined. The trier of fact determines the percentage of fault of the parties and

nonparties at the time of trial. If a nonparty is assessed a percentage of fault, that

percentage is not awarded to the plaintiff because a “finding of fault does not subject the

4
nonparty to liability in that action . . . .”6 However, if a nonparty is identified, the

plaintiff may choose to add the nonparty as a named defendant to the suit.

MCL 600.2957(2) sets forth the procedural requirements imposed on a plaintiff

who chooses to add an identified nonparty to a suit. “Upon motion of a party within 91

days after identification of a nonparty, the court shall grant leave to the moving party to

file and serve an amended pleading alleging 1 or more causes of action against that

nonparty.”7 Further, the statute sets forth a framework to allow a plaintiff to bring a

claim that may otherwise be barred by a statute of limitations. “A cause of action added

under this subsection is not barred by a period of limitation unless the cause of action

would have been barred by a period of limitation at the time of the filing of the original

action.”8 Thus, for purposes of calculating the period of limitations, a plaintiff who adds

a nonparty as a named defendant stands in the same position as he would have on the date

of the original filing.

There is no dispute in this case that plaintiff met the first requirement of the NNPF

statute when he filed a motion to add CCA as a party within 91 days of CCA being

identified as a nonparty at fault. The first disputed issue is whether the period of

limitations applicable to plaintiff’s claim against CCA had already expired when

plaintiff’s original action was filed. The majority holds that the suit against CCA was

time barred because it would have been untimely when plaintiff’s original action was

6
MCL 600.2957(3).
7
MCL 600.2957(2).
8
Id.

5
filed. I disagree because the majority errs in its calculation of the applicable periods of

limitations. The correct calculations require three separate analyses.

Medical malpractice actions are governed by a two-year statute of limitations9 and

the period of limitations is tolled when an NOI is mailed.10 Plaintiff’s claim against CCA

is premised on CCA’s alleged vicarious liability for the acts of Dr. Naini.11 According to

the medical records in this case, plaintiff’s treatment with Dr. Naini spanned a 22-year

period ending on Oct 18, 2005. Plaintiff provided CCA with an NOI on February 1,

2007. Thus, plaintiff may proceed with a claim of malpractice for any acts of negligence

occurring after February 1, 2005, by virtue of the two-year period of limitations without

relying on the discovery rule or the NNPF statute.

According to the medical records, Dr. Naini treated plaintiff on three occasions

between February 1, 2005, and November 2005, at which time plaintiff’s cancer was

diagnosed.12 Plaintiff alleges that Dr. Naini committed malpractice by failing to perform

screening on each date that he treated plaintiff. Thus, the majority errs by assuming that

the general two-year period of limitations had expired with regard to all of plaintiff’s

9
MCL 600.5805(6).
10
See MCL 600.5856(c); MCL 600.2912b.
11
The NNPF did not identify specific dates and merely stated, “[I]t is believed that
Mansoor C. Naini, M.D., was an employee and or agent of Cardiovascular Clinical
Associates, P.C., during the times called into question by the plaintiffs.”
12
Dates of visits shown in the medical records include April 4, 2005, April 18, 2005, and
October 18, 2005. Plaintiff’s second amended complaint alleged that CCA was Dr.
Naini’s employer on these dates. While it is doubtful that screening on October 18, 2005,
would have been beneficial, a question of fact exists regarding whether screening would
have been beneficial during plaintiff’s April 2005 visits.

6
claims at the time the original action was filed. While claims arising from treatments

before February 1, 2005, may have been barred by the two-year statute of limitations,

claims for acts of negligent treatment after that date are not. Accordingly, there is no

question that at least portions of plaintiff’s claim against CCA were timely.

Further, MCL 600.5838a(2) provides an extension of the period of limitations

when a claim is newly discovered:

Except as otherwise provided in this subsection, an action involving
a claim based on medical malpractice may be commenced at any time
within the applicable period prescribed in [MCL 600.5805] or [MCL
600.5851 to 600.5856] or within 6 months after the plaintiff discovers or
should have discovered the existence of the claim, whichever is later.
However, except as otherwise provided in [MCL 600.5851(7)] or (8), the
claim shall not be commenced later than 6 years after the date of the act or
omission that is the basis for the claim. The burden of proving that the
plaintiff, as a result of physical discomfort, appearance, condition, or
otherwise, neither discovered nor should have discovered the existence of
the claim at least 6 months before the expiration of the period otherwise
applicable to the claim is on the plaintiff. A medical malpractice action that
is not commenced within the time prescribed by this subsection is barred.

A newly discovered claim is afforded its own six-month period of limitations that

begins to run at the time the claim is discovered, assuming the plaintiff meets the

requirements of the statute.13 In this case, plaintiff alleges that he was unaware of the

claim against CCA until he received the NNPF on January 15, 2007. Assuming plaintiff

meets his burden of proving that he “should not have discovered” the existence of the

13
Curiously, the majority states that “[r]eceipt of notice of a nonparty at fault under MCL
600.2957(2) is irrelevant to determining the date of accrual of a medical malpractice
claim.” Ante at 23. This statement is contrary to any logical reading of the discovery
rule. Obviously, the accrual date for a newly discovered claim is the date the claim was
discovered.

7
claim against CCA at an earlier date, plaintiff’s claim against CCA is governed by the

six-month period of limitations, subject to a six-year statute of repose.14

Importantly, however, the issue of whether plaintiff should have known of the

existence of the claim against CCA before January 15, 2007, has not yet been considered

or decided by the trial court. At the hearing on CCA’s motion for summary disposition,

the trial court only ruled on whether plaintiff was able to rely on the NNPF statute when

filing his claim against CCA. The trial court did not rule on the question whether

plaintiff should have known of the claim against CCA at an earlier date. Thus, it is

premature for this Court to decide whether plaintiff can avail himself of the discovery

rule without remanding this issue to the trial court for further fact-finding.15

Moreover, the NNPF statute creates its own 91-day window in which a plaintiff

can bring a claim against the identified nonparty at fault, as long as the claim would have

14
Plaintiff and defendant dispute whether plaintiff should have known of the claim
against CCA at an earlier date. Plaintiff states that he was unaware of any employer
other than MCA until he received the NNPF. Defendant counters that the medical
records make reference to CCA, putting plaintiff on notice of the claim against CCA.
However, mere reference to an entity in medical records may not necessarily put a
plaintiff on notice of a claim. The claim at issue involves a claim for respondeat superior,
which requires knowledge of a legal relationship between the parties. Legal relationships
in a medical setting can be complex and can range from independent contractor
agreements to traditional employment agreements to no legal relationship whatsoever.
Moreover, the nature of the relationship between a provider and the building where
services are rendered or corporate names in charts are generally only within the
defendant’s knowledge. Thus, plaintiff’s claim that he was unaware of the existence of
the claim against CCA is not unreasonable on its face.
15
See Blair v Wayne State Univ, 393 Mich 769 (1974) (peremptorily reversing the Court
of Appeals when the issue was not tried or considered by the trial court because the
defendants were entitled to an opportunity to be heard.)

8
been timely on the date that the original action was filed. This 91-day window is

applicable whether the claim is known or unknown. In this case, the original action

against Dr. Naini and MCA was filed on October 23, 2006. Using the date of the original

filing, any claims arising out of malpractice committed after October 23, 2004, are

timely. The medical records show that plaintiff treated with Dr. Naini four times after

October 23, 2004.16 Clearly, portions of plaintiff’s claim are timely in light of the NNPF

look-back period and the two-year statute of limitations.

Further, an additional analysis is required under the NNPF statute because

plaintiff’s original claim was based in part on the discovery rule.17 Therefore, we must

also determine whether the NNPF 91-day window allowed plaintiff to rely on the

discovery rule, applicable to his original claim, in order to avoid the statute-of-limitations

defense with regard to his claim against CCA.

The majority erroneously asserts that plaintiff cannot use the NNPF 91-day

window because plaintiff did not provide an NOI to CCA six months before filing the

original action. However, the majority errs in this analysis. Under this reasoning, no

plaintiff who brings a malpractice lawsuit under the discovery rule can ever use the

NNPF statute to bring a claim against an identified nonparty at fault because no plaintiff

will ever have provided an NOI to a nonparty at fault six months before filing the original

16
This period covers one additional date, January 17, 2005, in addition to those noted in
footnote 12 of this opinion.
17
Plaintiff alleged in the original action that he did not know, and could not have known,
of the existence of the claim until his cancer was diagnosed in November 2005.

9
suit.18 This reasoning renders an entire provision of the NNPF statute, the provision

allowing plaintiffs to file claims against nonparties at fault, nugatory. This clearly was

not the intent of the Legislature and violates the basic tenets of statutory construction.

The majority fails to recognize that the NNPF statute creates it own 91-day

window in which to bring claims against identified nonparties at fault. If the majority’s

reasoning were correct, and a plaintiff were not afforded the opportunity to start his or her

claim by providing an NOI to the nonparty at fault during the 91-day window, the NNPF

and NOI statutes would be in irreconcilable conflict.19 If the statutes conflict, as the

Court of Appeals held, we would need to determine which statute is more specific.20 If

the NOI statute is the more specific statute, the proper resolution is to disallow use of the

NNPF statute in malpractice cases altogether, not just to limit use of the NNPF statute to

one party. If the NNPF statute is the more specific statute, we would need to consider

whether the NOI waiting periods are applicable to malpractice claims because the

18
To exacerbate this issue, there is no way for a plaintiff to definitively identify which
NOI waiting period he or she is required to follow before filing suit and no way to
comply with a six-month waiting period. For instance, to the extent that a plaintiff relies
on the discovery rule, the NOI waiting period is 91 days. MCL 600.2912b(3). However,
plaintiffs may only avail themselves of the 91-day NOI waiting period if they should not
have known of the claim at an earlier date. Id. While a plaintiff may believe he or she is
entitled to rely on the discovery rule before filing suit, the trial court will not rule on the
issue until after the lawsuit is filed. Most importantly, assuming a plaintiff is required to
use the 182-day rule and waits 182 days before filing, the six-month period of limitations
will have expired.
19
When two legislative enactments conflict, the more specific enactment controls.
Frame v Nehls, 452 Mich 171, 176 n 3; 550 NW2d 739 (1996).
20
Id.

10
Legislature failed to address them in the NNPF statute. However, before declaring that

an irreconcilable conflict exists, we must determine whether there is a way to harmonize

these statutes in the case before us.21

To determine whether there is a way to read the statutes harmoniously, we must

examine whether plaintiff was required to provide CCA an NOI and, if so, what the

applicable waiting period was. We must also resolve whether dismissal is required

because plaintiff’s complaint was filed too early, as the Court of Appeals concluded.22 I

find that these statutes can be read harmoniously, but only when read in concert with

MCL 600.2301.23 Therefore, I disagree with the Court of Appeals’ conclusion that,

because plaintiff filed “too early” against CCA, his complaint must be dismissed.

The NOI statute, MCL 600.2912b, requires that plaintiffs must provide medical

malpractice defendants an NOI before filing suit. It also mandates different waiting

periods, depending on the circumstances, before a plaintiff may file suit. Providing an

NOI does not pose a conflict with the NNPF statute on its face however, under the

21
If statutes lend themselves to a harmonious construction, that construction controls. In
re Project Cost & Special Assessment Roll for Chappel Dam, 282 Mich App 142,148;
762 NW2d 192 (2009).
22
The majority focuses much of its analysis on whether plaintiff can amend his NOI to
add CCA. While amending his NOI is one possible course of action that could provide
relief, it is unnecessary to address that issue in this instance. Plaintiff did provide an NOI
to CCA before the expiration of the period of limitations. Thus, the primary issues for
resolution here are whether plaintiff filed too early and whether MCL 600.2301 provides
relief. I will assume arguendo that plaintiff’s suit was filed too early in this instance.
23
All three statutes are part of the same statutory scheme, the Revised Judicature Act,
necessitating that they be read together.

11
majority’s analysis, the waiting periods do. The NOI statute provides a waiting period of

182 days for defendants known before the plaintiff files suit,24 a 91-day waiting period

when suit is filed against a newly discovered defendant during the pendency of the suit,25

and a 154-day waiting period if the defendant fails to respond to the NOI. Importantly,

the statute also allows the defendant to forgo the waiting period altogether by indicating

in writing that he or she does not wish to settle the claim. MCL 600.2912b(9) provides:

If at any time during the applicable notice period under this section a
health professional or health facility receiving notice under this section

24
MCL 600.2912b(1) provides:

Except as otherwise provided in this section, 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.
25
MCL 600.2912b(3) provides:

The 182-day notice period required in subsection (1) is shortened to
91 days if all of the following conditions exist:

(a) The claimant has previously filed the 182-day notice required in
subsection (1) against other health professionals or health facilities
involved in the claim.

(b) The 182-day notice period has expired as to the health
professionals or health facilities described in subdivision (a).

(c) The claimant has filed a complaint and commenced an action
alleging medical malpractice against 1 or more of the health professionals
or health facilities described in subdivision (a).

(d) The claimant did not identify, and could not reasonably have
identified a health professional or health facility to which notice must be
sent under subsection (1) as a potential party to the action before filing the
complaint.

12
 informs the claimant in writing that the health professional or health facility
does not intend to settle the claim within the applicable notice period, the
claimant may commence an action alleging medical malpractice against the
health professional or health facility, so long as the claim is not barred by
the statute of limitations.

The NNPF statute contains its own time limitation. “Upon motion of a party

within 91 days after identification of a nonparty, the court shall grant leave to the moving

party to file and serve an amended pleading alleging 1 or more causes of action against

that nonparty.”26 The majority opines that this statute only requires that a motion be filed

within 91 days and that the amended pleading adding the nonparty may be filed at some

later date. However, this holding is at odds with how this Court has previously

interpreted the NNPF statute. Following the adoption of the NNPF statute, this Court

adopted MCR 2.112(K)(4) to guide parties on the proper procedure to implement the

NNPF statute. The rule provides: “Amendment Adding Party. A party served with a

notice under this subrule may file an amended pleading stating a claim or claims against

the nonparty within 91 days of service of the first notice identifying that nonparty.”

(Emphasis added.) Because litigants and lower courts are expected to follow these rules,

they should also be able to rely on the rules as an accurate representation of this Court’s

interpretation of the statute that the rule is designed to implement.27

26
MCL 600.2957(2).
27
The majority now suggests that a malpractice litigant could seek a later amendment
under the last sentence of MCR 2.112(K)(4), which states that “[t]he court may permit
later amendment as provided in MCR 2.118.” Nevertheless, that does not resolve the
problem because nothing in MCR 2.118 requires the trial court to grant leave to add the
party. Moreover, there is no way for a plaintiff to definitively identify which NOI
waiting period he or she is required to follow before filing suit.

13
 Given the lack of clarity in the NNPF statute, the apparent conflict between the

NNPF statute and the court rule, and assuming plaintiff’s complaint was filed too early,

the next question becomes what the appropriate penalty or remedy should be in this

circumstance While the Court of Appeals held that plaintiff’s complaint against CCA

was filed too early and, that it must be dismissed with prejudice, I disagree. The Court of

Appeals failed to consider the mandates of MCL 600.2301, which clearly apply in this

situation.

MCL 600.2301 provides:

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 plain language of this statute imposes a duty, which cannot be ignored, on all

courts. It requires that “[t]he 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.” (Emphasis added.) This is not a discretionary provision, but a legislative

mandate that courts must follow. In determining whether relief is available under MCL

600.2301, we analyze the two § 2301 factors allowing for a cure.28 First, we must decide

whether a substantial right of a party is implicated. Second, we must decide whether a

cure is in the furtherance of justice.

28
See Bush v Shabahang, 484 Mich 156; 772 NW2d 272 (2009).

14
 In this instance, plaintiff appears to have attempted to follow the applicable

procedural requirements. He timely filed a motion to add CCA as a party. He timely

provided an NOI to CCA within the period of limitations. The alleged defect or error in

the proceeding is that plaintiff filed his complaint against CCA too soon. However, there

is simply no substantial right of a party at stake in this circumstance. At most, CCA was

deprived of a short period of time in which it could have attempted to settle the claim.

However, CCA has not demonstrated any intent or desire to settle this claim.

Furthermore, CCA was not deprived of a substantial right because, as previously

demonstrated, plaintiff’s suit was not barred by any statute of limitations. Thus, CCA

could not have raised a valid statute of limitations defense.

Next, this Court must decide whether a cure would be in the furtherance of justice.

I believe that it would be. In Bush, we held that the plaintiff’s good-faith attempt to

comply with the NOI content requirements of MCL 600.2912b justified a cure. Like the

plaintiff in Bush, plaintiff in this case attempted to follow the procedural requirements for

adding a nonparty at fault. Given the complexity of the requirements, it can hardly be

said that plaintiff intentionally disregarded the applicable statutes. Accordingly, a cure

would be in the furtherance of justice. Therefore, MCL 600.2301 can be applied, and

plaintiff’s claim should not be dismissed with prejudice. Instead, because no substantial

right of the parties has been impacted, the error should be disregarded under the plain

language of MCL 600.2301.

15
 For these reasons, the majority errs in holding that CCA is entitled to summary

disposition and that plaintiff’s lawsuit must be dismissed with prejudice. Therefore, I

respectfully dissent.

Diane M. Hathaway
Marilyn Kelly

CAVANAGH, J. I concur in the result proposed by Justice HATHAWAY’s dissent.

Michael F. Cavanagh

16