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Court rejects malpractice insurer's claim that filing one day early should lead to permanent dismissal

Barbara Zwiers sued Sean Growney, M.D. and Michigan Pain Consultants for malpractice.  Under the law, she was required to file a Notice of Intent spelling out the basis of her suit, and then wait 182 days before filing her Complaint and Affidavit of Merit.  Her attorneys miscalculated and filed the suit one day early.  The insurer's attorneys then waited for the statute of limitations to run before asking to dismiss the claim.  The lower court agreed with the insurer and permanently dismissed the lawsuit.

The Court of Appeals reversed, noting that the stated legislative purpose of the statutory waiting period was to allow for the settlement of claims prior to suit, thereby assuring that meritorious claims would be compensated while reducing the cost of processing claims.  The court noted that accidentally filing the suit one day early did not defeat this legislative purpose, and held that pursuant to MCL 600.2301, a statute that allows the Court to ignore defects in pleadings or in "process," should be applied.  Since the alleged victim acted in good faith and the dismissal would not be "in furtherance of justice" the Court reversed the lower court and reinstated the malpractice claim, despite the one-day error in computing the notice period. 

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