Burton v. Reed City Hospital Corp.

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED JANUARY 26, 2005
JACK BURTON, Personal
Representative of the Estate
of Dale Burton,

Plaintiff-Appellee,

v o. 124928
N

REED CITY HOSPITAL CORPORATION,
DR. CHRISTOPHER J. JOHNSON, and
DR. JAMES JOHNSON

Defendants-Appellants.

_______________________________

PER CURIAM

This case presents the question whether a complaint

alleging medical malpractice that is filed before the

expiration of the notice period provided by MCL 600.2912b

tolls the period of limitations. The Court of Appeals held

that a prematurely filed complaint invokes the tolling

provisions of MCL 600.5856(a). We disagree. MCL

600.2912b(1) unambiguously states that a person "shall not"

commence an action alleging medical malpractice until the

expiration of the statutory notice period. A complaint

filed before the expiration of the notice period violates
MCL 600.2912b and is ineffective to toll the limitations

period. We reverse the judgment of the Court of Appeals

and reinstate the Osceola Circuit Court's grant of summary

disposition for the defendants.

I. FACTS AND PROCEDURAL HISTORY

On January 17, 1998, plaintiff1 went to the emergency

room of defendant Reed City Hospital complaining of

abdominal pain, nausea, and vomiting. Tests revealed the

presence of an ulcer. Plaintiff was hospitalized and

treated with medications until January 23, 1998. On

January 26, 1998, the individually named defendants

performed stomach and gall bladder surgery on plaintiff.

On February 10, 2000, plaintiff filed a medical

malpractice complaint, alleging that his common bile duct

and pancreatic duct were negligently transected during the

surgery and that corrective surgery had to be performed in

November 1998. Plaintiff alleges that he suffered

residual, permanent damage as a result of the individual

defendants' negligence.

1
Plaintiff, Dale Burton, died following the
proceedings in the trial court. The personal
representative of his estate, Jack Burton, was substituted
as plaintiff. For ease of reference, the term "plaintiff"
refers to the decedent.

2

 The alleged malpractice occurred on January 26, 1998.

The period of limitations for a medical malpractice action

is two years. MCL 600.5805(6). Absent tolling, the

statutory period of limitations would therefore have

expired on January 26, 2000.

Plaintiff's counsel sent defendants a notice of intent

to file a claim on October 18, 1999. Under MCL

600.5856(d), if the period of limitations would expire

during the notice period, the period of limitations is

tolled for 182 days and then resumes running after the 182-

day period. In this case, the limitations period was

tolled until April 17, 2000, and then resumed running,

expiring on July 26, 2000.

Plaintiff filed a complaint and an affidavit of merit

under MCL 600.2912d on February 10, 2000, 115 days after he

provided his notice of intent. After receiving from

plaintiff’s counsel two extensions of time in which to

answer, defendants filed an answer to the complaint on May

8, 2000. Defendants’ affirmative defenses included the

following:

5. That plaintiff's claim is barred by the
applicable Statute of Limitations.

* * *

12. That plaintiff has failed to comply
with the provisions of MCLA 600.2912b and MCLA

3

 600.2912d, et seq[.], and plaintiff's complaint
must, therefore, be dismissed.

A pretrial status conference was held on June 29,

2000. The summary of that conference provides that

"Counsel stated that the status of the pleadings is

satisfactory, pending discovery."

On August 24, 2000, defendants moved for summary

disposition pursuant to MCR 2.116(C)(8) or (C)(10),

alleging that plaintiff failed to comply with the notice

provisions of MCL 600.2912 et seq.2 Defendants’ motion

pointed out that plaintiff's complaint was filed only 115

days after the date the notice of intent was sent.

Defendants’ motion alleged that the prematurely filed

complaint did not toll the limitations period, which

expired on July 26, 2000.

Plaintiff acknowledged that the complaint was filed

before the expiration of the notice period, but argued that

the filing of the complaint nevertheless tolled the period

of limitations, such that the proper remedy was dismissal

without prejudice. Plaintiff also asserted that defense

counsel had engaged in misconduct by expressing

2
Defendants also challenged the sufficiency of the
affidavit of merit filed with the complaint. The trial
court held that the affidavit met the statutory
requirements. Defendants have not appealed that ruling.

4

satisfaction with the state of the pleadings at the

pretrial conference and by waiting until after the

limitations period had run to bring the motion for summary

disposition. Plaintiff argued that defense counsel’s

misconduct resulted in a waiver, or that defendants were

estopped from challenging the premature filing of the

complaint.

The trial court initially denied the motion for

summary disposition. Although the trial court rejected the

plaintiff's argument that defendants’ expression of

satisfaction with the state of the pleadings at the

pretrial conference waived the premature filing defense, it

held that defendants’ failure to bring their motion for

summary disposition before the expiration of the

limitations period resulted in a waiver. The court

therefore denied defendants’ motion for summary

disposition.

Defendants filed a motion for reconsideration. On

reconsideration, the trial court reversed its prior

decision and granted summary disposition to defendants.

The trial court concluded that the affirmative defenses

were sufficiently pleaded to place plaintiff on notice of a

problem before the expiration of the limitations period.

5

 Plaintiff appealed the trial court’s order to the

Court of Appeals, which reversed in a published opinion.

259 Mich App 74; 673 NW2d 135 (2003). While acknowledging

that dismissal is an appropriate remedy for noncompliance

with the provisions of MCL 600.2912b and that when a case

is dismissed the plaintiff must still comply with the

applicable statute of limitations, the Court of Appeals

nevertheless concluded that MCL 600.5856(a) operated to

toll the period of limitations. Burton, supra at 85.

The Court of Appeals distinguished the present case

from Scarsella v Pollak, 461 Mich 547; 607 NW2d 711 (2000),

in which the plaintiff filed the complaint without also

filing the affidavit of merit. The Court of Appeals

determined that because the affidavit of merit was filed

with the complaint in this case, the filing tolled the

period of limitations. Burton, supra at 85–86. Finally,

the Court of Appeals concluded that tolling is permissible

where a complaint is filed prematurely because it does not

result in unfair prejudice to the defendant. Id. at 87–89.

It thus reversed the trial court’s order granting

defendants’ motion for summary disposition.

Defendants filed an application for leave to appeal to

this Court.

6

 II. STANDARD OF REVIEW

We review the trial court’s grant of summary

disposition de novo. Roberts v Mecosta Co Gen Hosp, 466

Mich 57, 62; 642 NW2d 663 (2002) (Roberts I). This case

involves questions of statutory interpretation, which are

also reviewed de novo. Id. The cardinal principle of

statutory construction is that courts must give effect to

legislative intent. Morales v Auto-Owners Ins Co (After

Remand), 469 Mich 487, 490; 672 NW2d 849 (2003). When

reviewing a statute, courts necessarily must first examine

the text of the statute. Dressel v Ameribank, 468 Mich

557, 562; 664 NW2d 151 (2003). If the Legislature's intent

is clearly expressed by the language of the statute, no

further construction is permitted. Helder v Sruba, 462

Mich 92, 99; 611 NW2d 309 (2000).

III. ANALYSIS

A. RELEVANT STATUTES

MCL 600.2912b(1) precludes a medical malpractice

claimant from commencing suit against a health professional

or health facility unless written notice is provided to

that professional or facility before the action is

commenced. Section 2912b(1) provides:

Except as otherwise provided in this
section, a person shall not commence an action
alleging medical malpractice against a health

7

 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 supplied.]

After providing the written notice, the claimant is

required to wait for the applicable notice period to pass

before filing suit. The claimant generally must wait 182

days after providing the notice of intent before commencing

an action alleging medical malpractice. MCL 600.2912b(1).

A claimant may file an action after 154 days if no response

to the notice is received as contemplated by MCL

600.2912b(7).

MCL 600.5856(d) provides that the two-year period of

limitations for medical malpractice actions is tolled

during the notice period if notice is given in compliance

with MCL 600.2912b. Defendants do not dispute that the

notice given in this case tolled the period of limitations

during the statutory notice period, so that the limitations

period was extended through July 26, 2000.

The Court of Appeals concluded that the period of

limitations was further tolled by plaintiff’s prematurely

filed complaint. It relied on MCL 600.5856(a), which

states that the period of limitations is also tolled “[a]t

the time the complaint is filed and a copy of the summons

and complaint are served on the defendant.”

8

 B. PLAINTIFF’S PREMATURELY FILED
COMPLAINT DID NOT TOLL THE PERIOD OF LIMITATIONS

Section 2912b(1) 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. This Court has

previously construed other such imperative language in the

statutes governing medical malpractice actions. For

example, in Scarsella, we held that a complaint alleging

medical malpractice that is not accompanied by the

statutorily required affidavit of merit is not effective to

toll the limitations period because the Legislature clearly

intended that an affidavit of merit “shall” be filed with

the complaint. Id. at 549 (citing MCL 600.2912d[1]). In

adopting the Court of Appeals opinion in Scarsella, we

noted that the Legislature’s use of the word “shall”

indicates a mandatory and imperative directive (citing

Oakland Co v Michigan, 456 Mich 144, 154; 566 NW2d 616

[1997]). Scarsella, supra at 549. We concluded that the

filing of a complaint without the required affidavit of

merit was insufficient to commence the lawsuit. Id.

In Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d

177 (2000), a case involving tolling during the notice

period, we held that a plaintiff cannot file suit without

9

first giving the notice required by MCL 600.2912b.

Omelenchuk, supra at 572. We further held that the

limitations period cannot be tolled unless a plaintiff

complies with the provisions of MCL 600.2912b. Omelenchuk,

supra at 576.

In Roberts I,3 another case involving tolling during

the notice period, we again emphasized that a plaintiff’s

compliance with MCL 600.2912b is mandatory before tolling

under MCL 600.5856(d) may occur. Roberts I, supra at 65,

67. We also held that MCL 600.2912b clearly places the

burden of complying with the notice of intent requirements

on the plaintiff and that this clear, unambiguous statute

requires full compliance with its provisions as written.

Roberts I, supra at 66.

In the instant case, the Court of Appeals correctly

determined that dismissal is an appropriate remedy for

noncompliance with the notice provisions of MCL 600.2912b

and that when a case is dismissed, the plaintiff must still

comply with the applicable statute of limitations. See

Gregory v Heritage Hosp, 460 Mich 26, 47-48; 594 NW2d 455

(1999); Scarsella, supra at 552. The Court of Appeals

3
The case was remanded for consideration of other
issues. Roberts v Mecosta Co Gen Hosp (On Remand), 252
Mich App 664; 653 NW2d 441 (2002); (After Remand) 470 Mich
679; 684 NW2d 711(2004).

10

erred, however, by basing its decision to reverse the

decision of the trial court on the alleged lack of

prejudice to the defendants, a factor that is not contained

in the relevant statutes.

The directive in § 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 §

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 affidavit of

merit. In each instance, the failure to comply with the

statutory requirement renders the complaint insufficient to

commence the action.

The fact that defendants did not bring their motion

for summary disposition until the period of limitations had

run does not constitute a waiver of the defense.4 MCL

4
The assertion by the dissent that defendants
implicitly waived their statute of limitations defense is
not supported by the evidence. We agree that a waiver
sometimes “'may be shown by a course of acts and conduct,
and in some cases will be implied therefrom.'” Klas v
Pearce Hardware & Furniture Co, 202 Mich 334, 339; 168 NW

11

600.2912b places the burden of complying with the notice

provisions on the plaintiff. Roberts I, supra at 66. As

we explained in Roberts I, the purpose of a tolling

provision is to protect a plaintiff from a statute of

limitations defense. Here, defendants specifically raised

the statute of limitations and plaintiff’s compliance with

MCL 600.2912b in their answer and affirmative defenses.5

Such a direct assertion of these defenses by defendants can

425 (1918) (citation omitted). However, neither of the
acts cited by the dissent implies an “intentional
abandonment” of defendants’ right to assert a statute of
limitations defense. See Roberts I, supra at 64 n 4.

First, the request for additional time to answer
plaintiff's prematurely filed complaint was not, in fact,
“inconsistent with” their statute of limitations defense.
Defendants did not, as a result of the extension granted
them, file their answer after the limitations period had
expired. Had they done so, the dissent’s theory would be
more compelling. Rather, defendants filed their answer
more than two months before the expiration of the
limitations period. In addition, defendants’ express
incorporation of such a defense in their answer makes clear
that they were not intentionally abandoning that defense
when they sought the extension.

Second, defendants’ expression during a pretrial
conference that “the status of the pleadings is
satisfactory” was also not “inconsistent with” their
statute of limitations defense. This statement was offered
only after defendants had filed their answer, which
included the statute of limitations defense. There is
nothing in the record to support an implication that
defendants were willing to waive this defense on the basis
of their “satisfaction” with the status of the pleadings.
5
As noted earlier, the answer and affirmative defenses
were filed on May 8, 2000, more than two months before the
period of limitations expired.

12

by no means be considered a waiver. Roberts I, supra at 68-

70. To the contrary, it was a clear affirmation and

invocation of such defenses. Defendants’ pleadings were

more than sufficient to comply with the requirements of MCR

2.116(D)(2) (requiring the statute of limitations to be

raised in the first responsive pleading or in a motion

filed before the responsive pleading).

The dissent contends that defendants’ failure to

comply with the pleading requirements of MCL 600.2912e(1)

and MCR 2.108(A)(1) acts as a forfeiture of the statute of

limitations defense. In Roberts v Mecosta Co Gen Hosp, 466

Mich 57, 69; 642 NW2d 663 (2002), we stated that “a

forfeiture necessarily requires that there be a specific

point at which the right must be asserted or be considered

forfeited.” Id. (emphasis omitted). In this case, that

specific point must have either occurred at defendants’

first responsive pleading or at a motion filed before that

pleading. MCR 2.116(D)(2). Here, defendants asserted the

statute of limitations argument in their May 8, 2000,

answer to plaintiff’s complaint.

The dissent concludes, however, that defendants’

failure to either answer or provide an affidavit of

meritorious defense within the statutory time frame

requires forfeiture. While the medical malpractice statute

13

is silent on the remedy for a violation of the pleading

requirements, generally, the remedy against a party who

“fail[s] to plead or otherwise defend” in an action is

default. MCR 2.603(A)(1). But this remedy was unavailable

to plaintiff, because he afforded defendants two extensions

of time in which to answer and also agreed to extend the

time for service of the affidavit of meritorious defense

through May 28, 2000. In sum, a party that stipulates an

extension of the time permitted for a filing may not be

heard to complain that the filing, when submitted within

that extended period, is untimely.

IV. CONCLUSION

Plaintiff did not fulfill his obligation under §

2912b. Accordingly, the limitations period was not tolled

by the prematurely filed complaint. We therefore reverse

the judgment of the Court of Appeals and reinstate the

judgment of the trial court granting summary disposition to

defendants.

Clifford W. Taylor
Elizabeth A. Weaver
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

14

 S T A T E O F M I C H I G A N

SUPREME COURT

JACK BURTON, personal
representative of the estate
of Dale Burton,

Plaintiff-Appellee,

v No. 124928

REED CITY HOSPITAL CORPORATION,
DR. CHIRSTOPHER J. JOHNSON, and
DR. JAMES JOHNSON,

Defendants-Appellants.
_______________________________

KELLY, J. (dissenting).

I would affirm the decision of the Court of Appeals.

Defendants negotiated with plaintiff for extensions of the

time in which to file their answer. They failed to obtain

approval of any extension from the trial court. Moreover,

they failed to file their affidavit of meritorious defense

in conformance with the mandatory requirements for medical

malpractice actions.

I would hold that a party who requests a late answer

and expresses no objection to the pleadings cannot

challenge an early complaint. Defendants implicitly waived

their statute of limitations defense predicated on the

timing of plaintiff’s complaint.
 Moreover, under the Court’s interpretation of the

statutes governing medical malpractice actions, defendants’

failure to conform to the mandatory pleading requirements

should have rendered their answer a nullity. Accordingly,

the statute of limitations defense should be deemed

forfeited.

Plaintiff's complaint, which was filed before the end

of the statutory waiting period for medical malpractice

claims, was timely in all other respects. I agree with the

Court of Appeals that the trial court’s dismissal with

prejudice was an unjust remedy in light of defendants’

conduct.

I. STANDARD OF REVIEW

When presented with a motion for summary disposition

under MCR 2.116(C)(7), the court considers the pleadings,

affidavits, and other documentary evidence. MCR 2.116(G).

In this case, the facts needed to review defendants' motion

for summary disposition are not in dispute.

This case involves an issue of statutory construction.

We review it de novo. Cardinal Mooney High School v

Michigan High School Athletic Ass’n, 437 Mich 75, 80; 467

NW2d 21 (1991). The primary goal of statutory

interpretation is to give effect to the intent of the

Legislature. In re MCI Telecom Complaint, 460 Mich 396,

2

411; 596 NW2d 164 (1999). The provisions of a statute must

be read in the context of the entire statute in the

interest of producing an harmonious whole. Macomb Co

Prosecutor v Murphy, 464 Mich 149, 159; 627 NW2d 247

(2001).

II. BACKGROUND

On January 25, 1998, the defendant doctors at the

defendant hospital performed exploratory surgery on

plaintiff.1 Plaintiff has alleged that, during the surgery,

they committed malpractice by negligently cutting his

common bile and pancreatic ducts.

In order to file a complaint for this malpractice, a

Michigan statute required plaintiff to serve defendants

with a notice of intent to sue. MCL 600.2912b. Plaintiff

served this notice on October 18, 1999, well within the

two-year statutory period of limitations for medical

malpractice actions.2 MCL 600.5805(6). Defendants did not

respond. Plaintiff’s counsel filed the complaint and

affidavit of merit on February 10, 2000. Plaintiff’s

1
Plaintiff, Dale Burton, died following the
proceedings in the trial court. The personal
representative of his estate, Jack Burton, was substituted
as plaintiff. For ease of reference, the term “plaintiff”
refers to the decedent.
2
This tolled the running of the limitations period.
MCL 600.5856(d).

3

counsel asserted that 154 days had elapsed since he filed

the notice and that, since defendants had not responded, he

believed that he was entitled to file the complaint early.

MCL 600.2912b(8). In fact, defendants’ failure to respond

did not entitle plaintiff to file his complaint until March

20, 2000.

Rather than comment on the premature filing,

defendants told plaintiff that they intended to file an

answer and received two extensions from him. On March 7,

2000, defendants obtained from plaintiff an extension of

the time in which to answer. On the date that extension

expired, defendants obtained another extension through May

4, 2000. They told plaintiff that they “looked forward to

working with” him and “appreciate[d plaintiff’s] continued

cooperation.”

When ultimately defendants filed their answer on

May 8, 2000, it was not timely under either the statutory

pleading rules for medical malpractice claims or the court

rules.3 See MCL 600.2912e(1) and MCR 2.108(A)(1). It

lacked supporting facts, as required by the Michigan court

rules. MCR 2.111(F). Moreover, it lacked the requisite

affidavit of meritorious defense, as required by statute.

3
It was also after the expiration of the second
extension granted by plaintiff.

4

MCL 600.2912e. This affidavit was not filed until May 15,

2000, four days after the mandatory ninety-one-day deadline

expired. MCL 600.2912e(1).

Defendants’ answer included a statute of limitations

defense. However, it did not indicate the basis for

defendants’ assertion of the defense. On the date the

answer was filed, the limitations period had not yet run.

The defense was not yet viable and appeared to have been

included in the answer as boilerplate. Plaintiff denied

that the defense was applicable.

At a pretrial conference on June 29, 2000, defendants

expressed satisfaction with the pleadings. Then, on August

24, 2000, defendants brought a motion to dismiss the claim

under MCR 2.116(C)(8) or (C)(10), asserting that plaintiff

had not complied with the timing provisions of MCL

600.2912b and MCL 600.2912d. Plaintiff challenged

defendants’ motion on several grounds. Among the reasons

was that defendants’ conduct had waived the statute of

limitations defense.

The trial court granted the motion. It held that the

statute of limitations defense in defendants’ answer had

placed plaintiff on notice of a problem with his pleadings

before the expiration of the period of limitations.

5

 The Court of Appeals reversed the grant of summary

disposition. It opined that the statutory period of

limitations had not elapsed, because plaintiff's

prematurely filed complaint and affidavit had tolled the

period of limitations. Burton v Reed City Hosp Corp, 259

Mich App 74; 673 NW2d 135 (2003). Tolling should be found

to have occurred, it reasoned, because defendants had not

been prejudiced and because summary disposition with

prejudice was an unnecessarily harsh remedy.

III. ANALYSIS

A. DEFENDANTS WAIVED THE STATUTE OF LIMITATIONS DEFENSE

In the trial court, plaintiff argued that the

affirmative defense of the statute of limitations had been

waived. I agree. “'[W]aiver is the “intentional

relinquishment or abandonment of a known right.”’” People

v Carines, 460 Mich 750, 762 n 7; 597 NW2d 130 (1999),

quoting United States v Olano, 507 US 725, 733; 113 S Ct

1770; 123 L Ed 2d 508 (1993). It is an equitable doctrine

applied judicially to avoid injustice. Roberts v Mecosta

Co Gen Hosp, 466 Mich 57, 76 n 9; 642 NW2d 663 (2002)

(KELLY, J., dissenting).

Waiver may be implied by conduct inconsistent with the

intent to assert the right. 28 Am Jur 2d, Estoppel and

Waiver, § 209, pp 612-613. The party waiving the right

6

must have actual or constructive knowledge of facts that

would create the right. Id., § 202, pp 607-608.

Here, defendants did not respond to plaintiff’s notice

of intent to sue. Defendants contacted plaintiff only

after receiving his complaint. Defendants requested two

extensions of the time in which to file their answer. They

reserved no rights or defenses.

Defendants’ answer raised the affirmative defense of

the statute of limitations at a time when it was not

viable. Plaintiff denied that the defense was applicable.

At a pretrial conference, defendants expressed satisfaction

with the pleadings.

Defendants knew that the notice period had not

elapsed. They also knew that plaintiff’s complaint was

subject to a statute of limitations. Yet they made no

mention that the complaint had been filed prematurely.

They did not then assert, and have not yet asserted, any

prejudice from receiving plaintiff’s complaint before the

full notice period had elapsed.

Defendants induced plaintiff to believe that they had

no objection to the timing of his complaint. Defendants,

who asked twice to file a late answer, cannot equitably

7

harbor a challenge to plaintiff’s early complaint.4

Plaintiff’s claim should not be subject to dismissal, with

prejudice or otherwise. I would hold that defendants’

actions implied a knowing waiver of any affirmative defense

that is based on the premature filing of plaintiff’s

complaint.

B. UNDER THE MAJORITY’S JURISPRUDENCE, DEFENDANTS FORFEITED
THE STATUTE OF LIMITATIONS DEFENSE

This Court has held that, in medical malpractice

cases, pleading requirements must be strictly followed.

For instance, an affidavit of merit “shall” accompany the

complaint,5 unless the plaintiff obtains an extension from

the trial court pursuant to MCL 600.2912d(2).

In Scarsella v Pollak,6 this Court considered MCL

600.2912d(1). There, the plaintiff failed to include an

affidavit of merit with his complaint and neglected to

obtain an extension. The statutory period of limitations

had expired before the plaintiff filed the affidavit. The

4
The majority contends that plaintiff is not entitled
to pursue his claim because “a party that stipulates [to]
an extension of the time permitted for a filing may not be
heard to complain that the filing, when submitted within
that extended period, is untimely.” Ante at 14. However,
plaintiff is not claiming that defendants’ answer was
untimely.
5
MCL 600.2912d(1).
6
461 Mich 547, 553; 607 NW2d 711 (2000).

8

Court held that, because the plaintiff failed to comply

with the mandatory requirement, he failed to commence the

action. Thus, the filing of the complaint “‘was a

nullity’” and did not toll the period of limitations.

Scarsella, supra at 549 (citation omitted). This

interpretation, it concluded, was necessary to effectuate

“the Legislature’s clear statement that an affidavit of

merit ‘shall’ be filed with the complaint. MCL

600.2912d(1).” Id. at 552.

Similarly, this Court has held that “a plaintiff

cannot file suit without giving the notice required by [MCL

600.2912b(1)].” Omelenchuk v City of Warren, 461 Mich 567,

572; 609 NW2d 177 (2000), overruled in part on other

grounds Waltz v Wyse, 469 Mich 642, 655; 677 NW2d 813

(2004). The failure to file a notice precludes the filing

of a valid complaint. By contrast, defendants “must file

an affidavit as provided in . . . [MCL] 600.2912e . . . .”

MCR 2.112(L). The Legislature has mandated that medical

malpractice defendants promptly respond to complaints with

an affidavit of meritorious defense. Unlike plaintiffs,

defendants may not obtain “an additional 28 days in which

to file the affidavit required . . . .” See MCL

600.2912d(2) and MCL 600.2912e. The fact that, in this

case, the parties had agreed to extend the time in which to

9

answer is of no moment. The parties may not rewrite

statutes by extrajudicial agreement. See Harvey v Harvey,

470 Mich 186, 193-194; 680 NW2d 835 (2004).

Defendants’ answer and affidavit of meritorious

defense failed to conform to the pleading requirements.

Therefore, the trial court could have concluded, following

the reasoning in Scarsella and Omelenchuk, that the answer

was deficient. On motion by plaintiff or at the court’s

own initiative, defendants’ nonconforming answer could then

have been stricken. MCR 2.115(B). If this had occurred,

plaintiff would have been entitled to judgment by default.

MCR 2.603(A)(1). See Kowalski v Fiutowski, 247 Mich App

156; 635 NW2d 502 (2001).

However, plaintiff did not move to strike defendants’

answer or for a default judgment. Nevertheless, the court

rules require that a statute of limitations defense be

asserted in the first responsive pleading, or it is

forfeited. MCR 2.116(D)(2). Forfeiture is the failure to

timely assert a known right. Quality Products & Concepts

Co v Nagel Precision, Inc, 469 Mich 362, 379; 666 NW2d 251

(2003).

If the reasoning of Scarsella were consistently

applied to MCL 600.2912e(1) as it was to MCL 600.2912d(2),

defendants’ answer would be deemed a nullity because

10

defendants failed to satisfy the mandatory statutory

requirements. Thus, even assuming that the statute of

limitations defense was a viable affirmative defense at the

time it was raised, the defense would be deemed forfeited.

This holding would effectuate “the Legislature’s clear

statement”7 that without exception, after the plaintiff has

filed a complaint and the requisite affidavit of merit, an

answer shall be filed “within 21 days.” In addition, an

affidavit of meritorious defense shall be filed within “91

days.” MCL 600.2912e(1). Here, defendants did neither.

Their statute of limitations defense should be deemed

forfeited.

C. DISMISSING PLAINTIFF’S CLAIM WITH PREJUDICE UNDERMINES
THE INTENT OF THE LEGISLATURE

The notice provision for medical malpractice suits

requires a plaintiff to provide a sound basis for his

claim. MCL 600.2912b(4).8 The Legislature enacted these

7
Scarsella, supra at 552.

8
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.

11

requirements to discourage frivolous lawsuits and allow

only meritorious claims to proceed.

The Legislature also imposed a presuit requirement on

defendants accused of medical malpractice. Defendants must

provide the basis for their defense to the alleged

malpractice. MCL 600.2912b(7).9

(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.
9
Within 154 days after receipt of notice
under this section, the health professional or
health facility against whom the claim is made
shall furnish to the claimant or his or her
authorized representative a written response that
contains a statement of each of the following:

(a) The factual basis for the defense to the
claim.

(b) The standard of practice or care that
the health professional or health facility claims
to be applicable to the action and that the
health professional or health facility complied
with that standard.

12

 When these subsections of § 2912b are read together it

is apparent that the notice requirements were imposed also

to facilitate settlement. They provide the parties with a

mandatory period in which to investigate a pending claim

and negotiate a settlement before suit is filed. See

Roberts v Mecosta Co Gen Hosp (After Remand), 470 Mich 679,

707; 684 NW2d 711 (2004) (KELLY, J., dissenting). If the

defendant fails to respond to the notice of intent,

indicating he does not wish to settle the case, the

plaintiff is excused from the 182-day requirement. The

plaintiff may file suit after 154 days. MCL 600.2912b(8).

In this case, defendants did not take advantage of the

statutory notice period. They did not attempt to negotiate

a settlement. In fact, they did not respond to plaintiff's

notice at all. Plaintiff was thus entitled to file his

complaint after 154 days. However, he erroneously filed

his complaint and affidavit of merit after 115 days.

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

(d) The manner in which the health
professional or health facility contends that the
alleged negligence of the health professional or
health facility was not the proximate cause of
the claimant's alleged injury or alleged damage.

13

 Defendants continued to violate the procedural rules.

They did not timely file their answer. MCR 2.108(A)(1).

Rather, they obtained two extensions from plaintiff. They

asserted that they had difficulty obtaining the relevant

records from each other and needed more time to prepare

their answer. They did not seek an extension from the

trial court as the court rules allow. MCR 2.108(E).

Defendants also failed to timely file their mandatory

affidavit of meritorious defense. MCL 600.2912e. When

defendants ultimately answered, they included a statute of

limitations defense.

As the Court of Appeals noted:

“Statutes of limitation are procedural
devices intended to promote judicial economy and
the rights of defendants. For instance, they
protect defendants and the courts from having to
deal with cases in which the search for truth may
be seriously impaired by the loss of evidence.
They also prevent plaintiffs from sleeping on
their rights; a plaintiff who delays bringing an
action profits over an unsuspecting defendant who
must prepare a defense long after the event from
which the action arose.” [Burton, supra at 83,
quoting Stephens v Dixon, 449 Mich 531, 534; 536
NW2d 755 (1995).]

Defendants asserted the statute of limitations defense

after inducing plaintiff to believe that they had no

quarrel with the timing of his complaint. Defendants

themselves failed to comply with procedural requirements.

Allowing defendants to prevail here frustrates the purposes

14

of the requirements, does nothing to deter stale claims,

and does not discourage frivolous litigation. Rather, it

precludes valid suits from proceeding on their merits,

encourages trial by ambush, and discourages cooperation

between the parties.10 It unjustly penalizes the innocent

injured and allows negligent tortfeasors to avoid

responsibility for their actions through gamesmanship.11

Although, pursuant to MCL 600.2912b(1), plaintiff

should not have been allowed to commence his suit,

defendants are not entitled to summary disposition. Given

that defendants' conduct constitutes waiver of the statute

of limitations defense, dismissal of the complaint is

contrary to the Legislature’s intent and the goals of the

relevant court rules.

10
Under the reasoning of today’s decision, any
deviation from a mandatory statutory deadline risks summary
disposition. Parties may now be required to object to any
requested accommodation. This is likely to diminish the
frequency of settlement. In the future, cooperation like
that by plaintiff’s counsel may even constitute legal
malpractice if it voids an otherwise valid claim or
defense.
11
Indeed, defendants could not, after two extensions,
timely file an affidavit of meritorious defense. Despite
the misfeasance of defendants, the majority has chosen to
selectively apply the statute in lieu of invoking equitable
doctrines that ensure justice and fair play.

15

 IV. CONCLUSION

I disagree that defendants who have slept on their

rights as in this case are entitled to raise the

affirmative defense of the statute of limitations. I would

hold that the defendants here waived and then forfeited the

defense.

To hold that plaintiff’s complaint does not toll the

period of limitations undermines the intent of the

Legislature. It does not promote resolution of meritorious

claims. It does not discourage frivolous claims. It

encourages gamesmanship.

The Court of Appeals properly reversed the trial

court’s grant of summary disposition for defendants. I

would reinstate plaintiff’s claim and remand the case for

trial on the merits.

Marilyn Kelly
Michael F. Cavanagh

16