Malpractice claim dismissed because attorneys misinterpret Court's ruling
When the Legislature re-wrote the book on malpractice, it required a 180-day waiting period--starting on the date a Notice of Intent is filed--before victims could sue. It did not address, however, how this date would interact with the victim's duty to file suit within 180 days of "discovering" a claim that is more than two years old. It also did not address what would happen if the Notice was technically defective and required amendment. Those questions were later addressed to the Michigan Supreme Court, and as the composition of the Court changed, sometimes the answers changed as well.
Nancy Pittman sued Anthony Buto, DPM, after alleged mismanagement of her bunion surgery resulted in several Emergency Room admissions. The Court ruled that her Notice of Intent (NOI) was executed in good faith, but contained a technical defect. On that basis, the case was dismissed without prejudice and the statute of limitations was tolled (or "extended"). Her attorneys filed an amended NOI and then waited a (second) 180-day period to re-file her complaint. The Court of Appeals ruled that she should have filed the Complaint within the remaining tolled original waiting period, instead of enduring a second waiting period. The second 180-day waiting period rendered her second complaint late and in violation of the statute of limitations.
On this basis, the lower court's refusal to dismiss her case was reversed and her case was dismissed with prejudice.