Court of Appeals, 4-3, refuses to permanently dismiss case filed one day early
One of the many malpractice "reforms" adopted by the Michigan Legislature more than a decade back, was the requirement that a victim of malpractice file a Notice of Intent to Sue, explaining the health care provider's negligence to him or her, and allowing a six-month mandatory "waiting period" before the technical complaint and affidavits of merit could be filed to pursue a claim. Ostensibly, the purpose was to allow the doctor or nurse and insurer an opportunity to investigate and resolve meritorious claims, pre-suit.
In two cases, now, an attorney for a claimant has made a one-day error in computing the six-month waiting period and filed suit one day early. (Under the court's construction of the rule, the victim may have only days in which to file suit after the waiting period expires--making an immediate filing on the expiration of the waiting period necessary.) The judges hearing these cases at the trial court level have refused to permanently dismiss the claims, and have applied a Michigan statute allowing the court to cure or ignore "any error or defect" which, "in the furtherance of justice" does not "affect the substantial rights of the parties." In a recent case, however, several Republican judges argued that recent decisions by Michigan's hyper-partisan Supreme Court majority no longer allow this statute to be applied to ignore or amend the one-day error.
Because of the conflict created by these rulings, the Michigan Court of Appeals created a conflict resolution panel of 7 judges to address the issue. The outcome was a decision by the majority that the statute should be applied to correct or ignore this meaningless one day error. Several Republican judges on the Court would refuse to apply the statute to excuse any error, if it is committed by a malpractice victim in composing a notice of intent or his initial pleadings. The case is Furr v. Michael McLeod, M.D.