Michigan Supreme Court
Lansing, Michigan 48909
_____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh
Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
____________________________________________________________________________________________________________________________
FILED APRIL 24, 2002
LISA ROBERTS,
Plaintiff-Appellee,
v Nos. 116563, 116570, 116573
MECOSTA COUNTY GENERAL HOSPITAL,
GAIL A. DESNOYERS, M.D.,
MICHAEL ATKINS, M.D., BARB DAVIS, and
OBSTETRICS AND GYNECOLOGY OF BIG RAPIDS, P.C.,
formerly known as GUNTHER, DESNOYERS & MEKARU
Defendants-Appellants.
___________________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
This case again calls into question the authority of
courts to create terms and conditions at variance with those
unambiguously and mandatorily stated in a statute. We
reaffirm that the duty of the courts of this state is to apply
the actual terms of an unambiguous statute.
In this medical malpractice case, the Court of Appeals
concluded that defendants had waived their ability to object
to the sufficiency of the notices of intent by failing to
raise their objections before the filing of the complaint. We
hold that the statute of limitations cannot be tolled under
MCL 600.5856(d) unless notice is given in compliance with all
the provisions of MCL 600.2912b. We further hold that MCL
600.2912b places the burden of complying with the notice of
intent requirements on the plaintiff and does not implicate a
reciprocal duty on the part of the defendant to challenge any
deficiencies in the notice before the complaint is filed. In
addition, because MCL 600.5856(d) is a tolling provision and
a plaintiff relies on a tolling provision to negate a statute
of limitations defense raised by a defendant, a defendant does
not need to assert the defense or challenge a plaintiff’s
compliance with MCL 600.2912b, as required by MCL 600.5856(d),
until the plaintiff files suit. For these reasons, we reverse
the Court of Appeals opinion and remand this matter for
further proceedings consistent with this opinion.
I. Facts and Proceedings
Plaintiff was pregnant and sought treatment because she
was experiencing severe pain in her abdomen. She was
diagnosed as having suffered a spontaneous abortion and a D &
C was performed. Plaintiff alleges that it was later
2
discovered that she had actually been suffering from an
ectopic pregnancy, not a spontaneous abortion, and that her
left fallopian tube had burst. Emergency surgery was
performed to remove plaintiff’s left fallopian tube.
Plaintiff claims that as a result of the second operation, she
can no longer bear children because her right fallopian tube
had previously been removed.
Plaintiff decided to pursue a medical malpractice claim,
alleging that defendants misdiagnosed her condition and
subsequently performed an unnecessary operation.
Plaintiff served a notice of intent on defendant Mecosta
County General Hospital on September 19, 1996, and on the
remaining defendants on September 23, 1996. Serving these
notices constituted plaintiff’s attempt to (1) meet the notice
requirements for medical malpractice actions prescribed by MCL
600.2912b and (2) toll the statute of limitations pursuant to
MCL 600.5856(d).
After the waiting period required under MCL 600.2912b had
passed, plaintiff filed her complaint.1 Thereafter,
1 Under the statute, a plaintiff must wait 182 days after
serving notice to file a complaint. MCL 600.2912b(1). However,
if a defendant fails to respond to the notice of intent within
154 days, a plaintiff may file a complaint immediately and
need not await the expiration of 182 days. MCL
600.2912b(7),(8); Omelenchuk v City of Warren, 461 Mich 567,
572-573, 609 NW2d 177 (2000). Defendants in the present case
did not respond to the notices of intent within 154 days, so
plaintiff filed a complaint in Mecosta Circuit Court on
3
defendants filed motions for summary disposition. Defendants
argued, inter alia, that plaintiff’s claims were barred by the
statute of limitations because the notices of intent failed to
comply with the requirements outlined in MCL 600.2912b(4).2
Specifically, defendants asserted that plaintiff’s notices
failed to sufficiently state the standard of care, the manner
in which the standard was breached, the action the defendants
should have taken, and the proximate cause of the injury.
February 25, 1997, before the expiration of 182 days.
2 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.
4
Defendants advanced the position that, since the notices were
insufficient, the period of limitation was not tolled under
MCL 600.5658(d) and had therefore expired. The trial court
granted the motions for summary disposition.
The Court of Appeals reversed and remanded, holding that
defendants had waived their ability to challenge plaintiff’s
failure to comply with the notice requirements because they
did not raise their objections before the time the complaint
was filed:
In short, defendants sandbagged, harboring the
alleged error until plaintiff could no longer
correct it and the only available remedy would be
dismissal with prejudice. This Court cannot
condone such conduct.
. . . [T]he purpose behind subsection 2912b(1)
is to encourage settlement without the need for
formal litigation. This purpose cannot be served
if defendants are permitted to sit on alleged
deficiencies in the notice of intent until after
suit has been filed. If the purpose of the notice
requirement is to encourage settlement of
legitimate claims before litigation is commenced,
then any claims of deficiencies in the notice need
to be raised before the complaint is filed, not
after.
* * *
Accordingly, we hold that any objections to a
notice of intent under subsection 2912b(1) must be
raised before the filing of the complaint. Summary
disposition based on any alleged defect in the
notice of intent not raised by the defendant before
the filing of the complaint is not appropriate.
[240 Mich App 175, 184-186; 610 NW2d 285 (2000).]
We granted defendants’ application for leave to appeal to
5
consider the propriety of the Court of Appeals holding that a
plaintiff’s noncompliance with the provisions of § 2912b is
waived by a defendant if no objection is raised before the
filing of the complaint.
II. Standard of Review
Questions of statutory interpretation are reviewed de
novo by this Court. In re MCI Telecom, 460 Mich 396, 413; 596
NW2d 164 (1999). Similarly, we review de novo decisions on
summary disposition motions. Herald Co v Bay City, 463 Mich
111, 117; 614 NW2d 873 (2000).
III. ANALYSIS
A. The Tolling Statute Mandates Compliance with
all of MCL 600.2912b
The limitation period for medical malpractice actions is
two years. MCL 600.5805(5). This period is tolled under MCL
600.5856(d)
[i]f, during the applicable notice period under
section 2912b, a claim would be barred by the
statute of limitations or repose, for not longer
than a number of days equal to the number of days
in the applicable notice period after the date
notice is given in compliance with section 2912b.
[Emphasis added.]
Plaintiff argues that the language “is given in
compliance with section 2912b” indicates that the Legislature
intended only the delivery provisions of § 2912b to be
applicable to § 5856(d). In other words, plaintiff’s position
6
is that, as long as § 2912b(2)3 is satisfied, the statute of
limitations is tolled under § 5856(d), notwithstanding
noncompliance with § 2912b(4). On the basis of a plain reading
of the statute, we reject this contention.
An anchoring rule of jurisprudence, and the foremost rule
of statutory construction, is that courts are to effect the
intent of the Legislature. People v Wager, 460 Mich 118, 123,
n 7; 594 NW2d 487 (1999). To do so, we begin with an
examination of the language of the statute. Wickens v Oakwood
Healthcare System, 465 Mich 53, 60; 631 NW2d 686 (2001). If
the statute’s language is clear and unambiguous, then we
assume that the Legislature intended its plain meaning and the
statute is enforced as written. People v Stone, 463 Mich 558,
562; 621 NW2d 702 (2001). A necessary corollary of these
principles is that a court may read nothing into an
unambiguous statute that is not within the manifest intent of
the Legislature as derived from the words of the statute
3 MCL 600.2912b(2) provides:
The notice of intent to file a claim required
under subsection (1) shall be mailed to the last
known professional business address or residential
address of the health professional or health
facility who is the subject of the claim. Proof of
the mailing constitutes prima facie evidence of
compliance with this section. If no last known
professional business or residential address can
reasonably be ascertained, notice may be mailed to
the health facility where the care that is the
basis for the claim was rendered.
7
itself. Omne Financial, Inc v Shacks, Inc, 460 Mich 305, 311;
596 NW2d 591 (1999).
Section 5856(d) clearly provides that notice must be
compliant with § 2912b, not just § 2912b(2) as plaintiff
contrarily contends. Had the Legislature intended only the
delivery provisions of § 2912b to be applicable, we presume
that the Legislature would have expressly limited compliance
only to § 2912b(2). However, the Legislature did not do so.
Rather, it referred to all of § 2912b.
Since the statute is clear and unambiguous, this Court is
required to enforce § 5856(d) as written. Stone, supra. As a
result, the tolling of the statute of limitations is available
to a plaintiff only if all the requirements included in §
2912b are met.
B. The Notice of Intent Statute, MCL 600.2912b
The Court of Appeals did not decide whether the trial
court erred in determining that plaintiff’s notices of intent
did not comply with § 2912b(4). Instead, the Court concluded
that defendants had waived4 their ability to challenge the
4 The Court of Appeals clearly used the term “waiver” in
a colloquial sense and one at odds with the established legal
meaning of this term. As defined by this Court, “waiver”
connotes an intentional abandonment of a known right. People
v Carines, 460 Mich 750, 762, n 7; 597 NW2d 130 (1999).
Despite the dissent’s conclusory assertion to the contrary,
there is no record basis in this case for concluding that
defendants here advised plaintiff or anyone else that they
were intentionally abandoning their right to contest the
8
sufficiency of the notices under that section, by failing to
object to any deficiencies before the filing of the complaint.
The notice of intent required for medical malpractice
actions is statutorily mandated. MCL 600.2912b(1) provides:
[A] person shall not commence an action
alleging medical malpractice against a health
adequacy of notice under § 2912b or their right ultimately to
assert a statute of limitations defense to her malpractice
claim. In fact, a review of the record produces a
communication between defendants’ adjusters and plaintiff that
is in direct contradiction to the meaning of “an intentional
abandonment of a known right.” Defendant Mecosta County
General Hospital’s claim adjusters expressed in a writing
requesting information that their information request “does
not waive any rights Mecosta County General Hospital or the
MHA Insurance Company may have to dispute any defects in any
Notice of Intent or concede the validity of any such Notice.”
Thus, contrary to the dissent’s assertion that defendants made
“affirmative representations” so that there was a “voluntary
relinquishment of a known right,” not only were there no such
representations, defendants specifically stated in one of
their communications that the right to challenge the notice of
intent was not being waived. Therefore, in addition to the
absence of any affirmative representations, this communication
provides further evidence that our dissenting colleague’s
assertion that defendants’ communications “reasonably led
plaintiff to believe that her notice was sufficient, thereby
waiving any objections related to the adequacy of the notice”
is unsupportable.
Rather, when referring to “waiver,” both the Court of
Appeals and dissent appear to rely on the related concept of
“forfeiture.” As defined by this Court, a “forfeiture” is the
failure to make a timely assertion of a right. Carines,
supra.
In any event, for the reasons explained below, it is
simply inappropriate to characterize defendants’ inaction as
either a waiver or a forfeiture, because the statute at issue
did not impose upon defendants a duty to assert that
plaintiff’s notice was deficient until her complaint was
filed.
9
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.]
Subsection 2912b(4) provides that “[t]he notice given to
a health professional or health facility under this section
shall contain a statement of at least” the facts, standard of
care, action that should have been taken, breach, proximate
cause, and the names of those being notified.
The phrases “shall” and “shall not” are unambiguous and
denote a mandatory, rather than discretionary action. People
v Grant, 445 Mich 535, 542; 520 NW2d 123 (1994). Likewise,
the phrase “at least” plainly reflects a minimal requirement
and cannot plausibly be considered ambiguous. Because § 2912b
is unambiguous, we must enforce its plain language.
Subsections 2912b(1) and (4) clearly place the burden of
complying with the notice of intent requirements on the
plaintiff. A clear and unambiguous statute requires full
compliance with its provisions as written. Northern Concrete
Pipe, Inc v Sinacola Companies-Midwest, Inc, 461 Mich 316,
320; 603 NW2d 257 (1999). Accordingly, plaintiff must fulfill
the preconditions of § 2912b(4) in order to maintain a medical
malpractice action.
Further, nowhere does the statute provide that a
defendant must object to any deficiencies in a notice of
10
intent before the complaint is filed.5 In the absence of such
a statutory requirement, we do not have the authority to
create and impose an extrastatutory affirmative duty on the
defendant. Omne Financial, supra. The role of the judiciary is
not to engage in legislation. Tyler v Livonia Schools, 459
Mich 382, 392-393, n 10; 590 NW2d 560 (1999). The Legislature
did not require that an objection to a notice of intent must
be raised before a certain stage of the litigation.
C. The Tolling Provision, MCL 600.5856
Although the Court of Appeals incorrectly held that
defendants had waived their ability to challenge the
sufficiency of the notice of intent by creating and inserting
a waiver provision into MCL 600.2912b, MCL 600.5856 provides
an additional reason why waiver is inapplicable to the present
case.
5 The dissent suggests that its “waiver” analysis is
derived from the structure of the statute. That argument is
undercut by the fact that the statute provides an explicit
remedy for a defendant’s failure to respond to the notice of
intent. It is well settled that when a statute provides a
remedy, a court should enforce the legislative remedy rather
than one the court prefers. Senters v Ottawa Savings Bank, 443
Mich 45, 56; 503 NW2d 639 (1993). Although MCL 600.2912b(7)
requires the defendant to respond to the notice of intent,
subsection 8 clearly provides the remedy for a defendant’s
failure to do so. That is, plaintiff may commence an action
after only 154 days after notice has been given, as opposed to
the 182 days otherwise required under subsection 1. However,
nothing in § 2912b suggests that defendant waives his right to
object to the sufficiency of the notice of intent by failing
to respond before the complaint is filed.
11
The plain language of § 5856(d) clearly requires a
medical malpractice plaintiff to comply with the provisions of
§ 2912b in order to toll the limitation period. Absent an
express waiver of its right to contest the adequacy of
plaintiff’s notice of intent or to assert the statute of
limitations as a defense, defendant cannot forfeit, or
“waive,” those rights until the tolling provision becomes an
issue. This is because a tolling provision effectively works
to negate a statute of limitations defense raised by a
defendant. Thus, unless done so expressly, the only ways in
which a defendant could effectively “waive” any objections to
plaintiff’s fulfillment of the requirements of § 5856(d) would
be to fail to invoke the pertinent statute of limitations
after a plaintiff files suit or to fail to object to the
adequacy of the notice of intent after a plaintiff advances
tolling as a response to a statute of limitations defense.
In other words, under this statute, defendant’s failure
to respond to plaintiff’s notice does not result in a waiver
of a statute of limitations defense before a suit is even
filed. Accordingly, since plaintiff sought to rely on the
tolling provision of § 5856(d) and that section plainly
requires compliance with § 2912b, defendants cannot logically
be considered to have waived their right to object to
12
plaintiff’s compliance with § 2912b before the filing of the
suit.
D. The Dissent
The lynchpin of the dissent is its repeated assertion
that “defendants in this case made affirmative representations
that reasonably led plaintiff to believe that her notice of
intent was adequate.” Post at 6-7 (emphasis added). We agree
that, if a defendant affirmatively represents to a plaintiff
that it waives any objection to plaintiff’s notice or
expressly waives its statute of limitations defense, such
representations could be binding in any subsequent litigation
under this statute. However, what is noteworthy about the
dissent’s theory is the fact that, despite the repeated
contrary assertions, not a single representation is cited,
much less an affirmative representation, by any defendant that
they acquiesced in the adequacy of the notices that plaintiff
filed in this case. The oddity of the dissent’s analysis is
that it relies on the absence of representations to establish
a waiver. Indeed, the dissent is ultimately reduced to
admitting that the so-called waiver it relies upon must be
implied from the fact that defendants failed to include a
disclaimer in each of the several written requests they made
13
of plaintiff for more information. Post at 6, n 8.6
We agree with the dissent that a “[w]aiver requires an
‘intentional and voluntary relinquishment of a known right.’”
Post at 3, n 1. Carines, supra. However, as previously
discussed, n 4, no such waiver occurred here. It is simply
contradictory for the dissent to conclude that the failure to
raise an issue in preliminary communications amounts to a
waiver, while it simultaneously instructs that waiver requires
an “intentional and voluntary relinquishment.”
In reality, the dissent is not relying on a waiver
analysis, but a forfeiture analysis. As we have defined the
6 The dissent actually reasons that, because defendants
contacted plaintiff for information following the issuance of
her notice, “she had every reason to believe that the notice
triggered the tolling provision of MCL 600.5856(d).” Post at
p 7. As noted previously, n 4, a reference in this record
concerning the adequacy of plaintiff’s notice was made in a
September 6, 1996, letter to plaintiff from MHA. In what
surely must have been the product of an abundance of lawyerly
caution, in that letter Mecosta and MHA specifically
disclaimed any waiver of rights to contest defects in
plaintiff’s notice. The dissent similarly cites a
communication from defendants’ insurance claim adjusters that
indicates that the failure to comply with medical information
requests will force defendants’ insurers to consider the
notice of intent defective as evidence that defendants made an
affirmative representation that they were intentionally
abandoning their right to contest the notice of intent. Such
is the world that the dissent would create that defendants
must communicate at their peril with any potential plaintiff
unless each such communication specifically disclaims any
waiver of any right of defense available. If the folly of
this approach is not sufficiently self-evident, for the
reasons set forth below, we reject the dissent’s game theory
of litigation and in particular its “nonrepresentation implied
waiver” theory.
14
term, a “forfeiture” is the failure to assert a right in a
timely fashion. Carines, supra. The dissent has again
confused these related, but distinct, concepts of forfeiture
and waiver. See, e.g., People v Carter, 462 Mich 206, 216;
612 NW2d 144 (2000).
Even if the dissent’s argument is viewed as a forfeiture
argument, it remains unpersuasive. This is because a
forfeiture necessarily requires that there be a specific point
at which the right must be asserted or be considered
forfeited. As noted above, § 2912b does not require a
response to the adequacy of plaintiff’s notice. Thus, the
first occasion that defendant must challenge the adequacy of
the notice as required by the statute is after plaintiff has
filed a complaint. This duty to challenge the adequacy of the
notice arises not because of the statute, but because of our
court rules concerning pleading, MCR 2.111(F)(3), and summary
disposition, MCR 2.116(D)(2).7
7 The objection to the notice must be made under these
rules because, in this malpractice case, if plaintiff failed
to comply with the notice requirement, her claim was arguably
barred by the controlling statute of limitations, an
affirmative defense that must be pleaded in defendants’ motion
for summary disposition or first responsive pleading. Once
the statute of limitations is asserted as a defense as it was
below, then a plaintiff is free to argue that the statute was
tolled under § 5856(d). It is only at this point that a
defendant is obligated to object to the adequacy of
plaintiff’s notice under § 2912b.
15
In sum, in a medical malpractice case arising under this
statute, it is only when the tolling provision becomes an
issue that a defendant would be compelled to contest adequacy
of the notice. The Court of Appeals and the dissent argue for
the extrastatutory requirement of an earlier obligation to
object to the adequacy of the notice because they contend that
the statute was intended to promote settlement negotiations.
Whatever the merit of this policy argument, we are obligated
to apply the unambiguous terms of the statute, not our policy
preferences. We conclude that the Legislature not only failed
to require an earlier objection, it affirmatively provided a
different remedy for a defendant’s failure to respond to the
notice thus negating the “waiver” arguments offered by the
Court of Appeals and the dissent. See n 5.
For these reasons, regardless of whether it relies on
waiver or forfeiture principles, the dissent’s argument fails.
IV. Conclusion
In light of the plain language of MCL 600.5856(d), we
conclude that the statute of limitations in a medical
malpractice action is not tolled unless notice is given in
compliance with all the provisions of MCL 600.2912b. We
further conclude that MCL 600.2912b did not require defendants
to object to the sufficiency of the notices of intent before
16
the filing of the complaint.8 In addition, because MCL
600.5856(d) is a tolling provision and tolling provisions work
to negate a statute of limitations defense raised by a
defendant, defendants did not need to assert the defense or
challenge plaintiff’s compliance with MCL 600.2912b, as
required by MCL 600.5856(d), until plaintiff filed suit.
Accordingly, we reverse the judgment of the Court of
Appeals and, recognizing that the panel did not reach a
determination regarding whether the trial court erred in
concluding that plaintiff’s notices of intent did not comply
with § 2912b(4), we remand this matter to the Court of Appeals
for further proceedings consistent with this opinion.
CORRIGAN , C.J., and WEAVER , TAYLOR , and MARKMAN , JJ.,
concurred with YOUNG , J.
8 We express no opinion concerning plaintiff’s compliance
or noncompliance with MCL 600.2912b, an issue that the Court
of Appeals declined to answer.
17
S T A T E O F M I C H I G A N
SUPREME COURT
LISA ROBERTS,
Plaintiff-Appellee,
v No. 116563
MECOSTA COUNTY GENERAL
HOSPITAL, GAIL A. DESNOYERS,
M.D., BARB DAVIS, AND
OBSTETRICS AND GYNECOLOGY OF
BIG RAPIDS, P.C., formerly known
as GUNTHER, DESNOYERS & MEKARU,
Defendants-Appellees.
and
MICHAEL ATKINS, M.D.,
Defendant-Appellant.
___________________________________
LISA ROBERTS,
Plaintiff-Appellee,
v No. 116570
MECOSTA COUNTY GENERAL HOSPITAL,
Defendant-Appellant,
and
GAIL A. DESNOYERS, M.D., MICHAEL
ATKINS, M.D., BARB DAVIS,
OBSTETRICS AND GYNECOLOGY OF
BIG RAPIDS, P.C., formerly known
as GUNTHER, DESNOYERS & MEKARU,
Defendants.
___________________________________
LISA ROBERTS,
Plaintiff-Appellee,
v No. 116573
MECOSTA COUNTY GENERAL HOSPITAL,
MICHAEL ATKINS, M.D., OBSTETRICS
AND GYNECOLOGY OF BIG RAPIDS, P.C.,
formerly known as GUNTHER, DESNOYERS
& MEKARU,
Defendants-Appellees,
and
GAIL A. DESNOYERS, M.D., and
BARB DAVIS,
Defendants-Appellants.
___________________________________
KELLY, J. (dissenting).
The majority implies that a statute must explicitly
permit waiver before the waiver doctrine can operate to excuse
noncompliance. Moreover, the majority seems to confuse the
concept of an affirmative representation indicating waiver and
an explicit statement of waiver. It seems to regard the
latter as necessary in this case, but provides no authority to
2
support that assumption. I disagree with the majority's
analysis and would affirm the Court of Appeals application of
the doctrine of waiver in this case.1
I would not, and do not, infer waiver from mere silence.
Moreover, I do not believe that either MCL 600.2912b or MCL
600.5856(d) supports a requirement that a defendant object to
alleged deficiencies in a notice of intent before the
complaint is filed. Therefore, I agree with the majority's
conclusion that there is no duty to challenge deficiencies
before the complaint is filed.
Generally, I agree that, to begin the tolling of the MCL
600.5856(d) statute of limitations, a plaintiff must fully
comply with the requirements of MCL 600.2912b. Compliance
with the delivery provision of the notice statute alone is
1The Court of Appeals initially couched its holding in
these terms: "[D]efendants waived any alleged deficiencies in
the notice of intent," (emphasis added). It went on to
emphasize that defendants "fail[ed] to complain." Ultimately,
it held that a defendant must raise any objections to a notice
of intent before a complaint is filed. 240 Mich App 175, 181,
185; 610 NW2d 285 (2000).
Waiver requires an "intentional and voluntary
relinquishment of a known right." Black's Law Dictionary (6th
ed); see also Moore v First Security Casualty Co, 224 Mich App
370, 376; 568 NW2d 841 (1997). I would affirm the Court of
Appeals decision to the extent that it applied the doctrine of
waiver, but I would reverse the holding to the extent that it
requires a potential defendant to object before a plaintiff
files a complaint. MCL 600.2912b does not require that a
defendant respond in any way to a notice of intent.
3
insufficient. However, I would hold that a prospective
defendant can waive the specific content requirements for the
notice of intent by an affirmative action.
The majority neglects to consider an important fact in
this case. Representatives of defendants' insurance companies
corresponded with plaintiff's counsel without complaining that
there were inadequacies in the notice of intent.2 A review of
the parties' numerous written communications reveals that
plaintiff cooperated with defendants' requests for medical
records and other personal information related to plaintiff's
2The majority points out that one defendant, Mecosta
County General Hospital, reserved the right to object to
plaintiff's notice of intent in a writing requesting
information. That letter from Mecosta, dated September 6,
1996, refers to an earlier communication from plaintiff and
states: "This letter does not waive any rights . . . ."
(Emphasis added.) However, plaintiff's amended notice of
intent to Mecosta is dated September 19, 1996. After that
notice, plaintiff cooperated with Mecosta's requests for her
personal medical history and access to plaintiff's medical
records. None of those cooperative letters from Mecosta
indicated any objections to the amended notice of intent or
reserved a later objection.
I would note that representatives of other defendants,
particularly Gail DesNoyers and Barbara Davis, explicitly
stated that plaintiff's failure to comply with their request
for medical information "will force [defendants' insurer] to
consider this pre-suit notice defective." Presumably, once
plaintiff complied with that request, those defendants had no
objection premised on defective notice.
Moreover, plaintiff provided evidence that each of
defendant's insurers communicated with defendant after
receiving the notice of intent without objecting to its
content. That evidence went uncontradicted by any defendant.
4
claim. I believe that these communications from defendants
reasonably led plaintiff to believe that her notice was
sufficient, thereby waiving any objections related to the
adequacy of the notice.
The majority also confuses the issue by focusing on the
tolling provision, MCL 600.5856(d). In order for these
defendants to maintain a statute of limitations claim, they
had to challenge the sufficiency of plaintiff's notice of
intent. Thus, the disposition of this case turns on an
analysis of the requirements of MCL 600.2912b, including
whether defendants waived any challenge related to those
requirements.
Defendants advance no authority in support of their
contention that the doctrine of waiver cannot be applied to a
statutory provision that does not explicitly include the
possibility of waiver. Nor does the majority cite such
authority.3 The majority relies only on the "mandatory"
nature of the notice provision and the proposition that an
3The majority relies on Northern Concrete Pipe, Inc v
Sinacola Companies-Midwest, Inc, 461 Mich 316; 603 NW2d 257
(1999), and Onme Financial, Inc v Shacks, Inc, 460 Mich 305;
596 NW2d 591 (1999), for the proposition that a clear and
unambiguous statute requires full compliance with its
provisions. However, neither decision addressed the equitable
doctrine of waiver.
5
unambiguous statute requires full compliance.4 However, I
believe that the mandatory nature of the notice statute is not
dispositive here, where it is undisputed that defendants had
actual notice of plaintiff's intent to file suit.
Waiver is an equitable doctrine, applied judicially to
avoid injustice. 28 Am Jur 2d, Estoppel and Waiver, § 197.
As is true with the doctrine of equitable estoppel, the
possibility of waiver need not be set forth in the language of
a statute.5 Where a defendant makes affirmative
representations implying that he has no objections to the
content of a notice, we may, as a matter of equity, find his
4The majority emphasizes that MCL 600.2912b provides a
remedy for a prospective defendant's failure to respond to a
notice of intent. I would point out that, by addressing a
failure to respond, the remedy may preclude forfeiture, but it
does not preclude waiver. Where defendants made affirmative
representations that could only have been designed to induce
plaintiff's reliance on her notice of intent, the statute
provides no remedy for this plaintiff.
5This Court has readily applied the doctrine of waiver in
the criminal context. For example, we recently pointed out,
in People v Krueger, 466 Mich ___; ___ NW2d ___ (2002), that
a criminal defendant may waive the right, specifically
conferred in MCL 768.3, to be present at trial. See also
People v Hyland, 212 Mich App 701; 538 NW2d 465 (1995); People
v Staffney, 187 Mich 660; 648 NW2d 238 (1991). MCL 768.3
provides in absolute terms that "No person indicted for a
felony shall be tried unless personally present during the
trial . . . ." It gives no indication of the possibility of
waiver. One would expect it to be more difficult for a
criminal defendant to waive a right than a civil defendant.
Hence, I see no need to examine the statute involved here for
explicit permission to apply the equitable doctrine in this
context.
6
later objections waived.6
The defendants in this case made affirmative
representations that reasonably led plaintiff to believe that
her notice of intent was adequate. In so doing, defendants
encouraged plaintiff to rely on the 182-day tolling period
initiated by that notice. When plaintiff filed her complaint
well within the extended limitation period,7 defendants cannot
be permitted to object on statute of limitations grounds and
the requirements of the notice provision. The defense was
affirmatively waived by defendants' actions.
Presumably, plaintiff could have filed her malpractice
claim within the statutory period of limitation but for the
statutory requirement that she provide a notice of intent to
file her claim. After doing so, and particularly after
6This is not to say, in the abstract, that a defendant
waives an objection based on notice or the statute of
limitations any time that the defendant participates in a
lawsuit. When it enacted MCL 600.2912b and MCL 600.5856(d),
the Legislature created a unique and complex set of
requirements that intertwine the notice requirement with the
statute of limitations. Under the circumstances of this case,
I believe that defendants sufficiently implied that they had
no objection premised on inadequate notice to preclude a
statute of limitations objection.
7Proper notice under the statute initiates a 182-day
tolling period regardless of whether a defendant responds
pursuant to MCL 600.2912b(7). However, plaintiff filed her
complaint immediately upon the expiration of the 154-day
abbreviated waiting period, as soon as the statute permitted.
See Omelenchuck v City of Warren, 461 Mich 567, 576-577; 609
NW2d 177 (2000).
7
receiving communications from defendants' agents because of
that notice, she had every reason to believe that the notice
triggered the tolling provision of MCL 600.5856(d). The
requirements of MCL 600.2912b are vague. Neither the statute
nor related case law provides any guidance about the quantity
of detail a potential plaintiff must furnish regarding the
malpractice claim.8
The majority also implies that a challenge on the basis
of the statute of limitations cannot be waived before the
filing of suit. Again, I disagree. Where parties are engaged
in settlement negotiations, for example, a potential defendant
might agree to waive a statute of limitations defense to
continue negotiations and avoid a claim being filed. See,
e.g., Wickings v Arctic Enterprises, Inc, 244 Mich App 125,
148-150; 624 NW2d 197 (2000).9 Should settlement negotiations
fail, the affirmative representation that the defendant waived
a statute of limitations defense would bar any objection when
the plaintiff filed a claim outside the statutory period.
Similarly, defendants' communications to plaintiff here should
8I wonder how much detail can reasonably be expected from
a plaintiff who has not yet had the benefit of discovery.
9Federal courts have recognized that the judiciary has
equitable control over statutory periods of limitation,
including tolling and waiver. See Bowen v City of New York,
476 US 467, 479; 106 S Ct 2022; 90 L Ed 2d 462 (1986); Zipes
v Trans World Airlines, Inc, 455 US 385, 398; 102 S Ct 1127;
71 L Ed 2d 234 (1982).
8
operate to waive the statute of limitations defense.
The effect of today's decision is to shorten the
statutory period of limitation for a medical malpractice claim
by more than half a year. A potential plaintiff would be well
advised to file a notice of intent at least 182 days before
the period expires. There is now no telling whether a notice
will be deemed sufficient to trigger the tolling provision.
In fact, even the plaintiff who follows a notice by inquiring
whether additional information is needed risks suffering the
consequence of a notice found to be technically inadequate.
A plaintiff should not rely even on the formal response
outlined in MCL 600.2912b(7). If the complaint were filed
more than two years after the malpractice claim accrued and
the notice were sufficiently flawed, the claim would still be
time-barred. The Legislature could not have intended that
result when it enacted MCL 600.2912b, which was designed to
promote settlement.
In conclusion, I would reverse the Court of Appeals
decision to the extent that it imposed a duty to object to a
deficient notice of intent before a complaint is filed.
However, I would affirm the application of waiver to the
notice and tolling statute combination. These defendants
communicated with plaintiff and investigated her claim as the
notice statute contemplates, presumably in furtherance of the
9
possibility of a settlement. The Court of Appeals recognized
the unfairness of allowing them only much later to object that
the notice of intent was defective because it gave
insufficient information to promote pretrial investigation and
settlement.
When defendants affirmatively responded to plaintiff's
notice of intent, they reasonably should have expected
plaintiff to understand that they had no objections to its
form or content. By so doing, defendants affirmatively waived
any objection premised on that notice. Because the statute of
limitations objection in this case is necessarily based on an
inquiry into the adequacy of the notice of intent, the
objection was affirmatively waived.
CAVANAGH , J., concurred with KELLY , J.
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