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141793 - Johnson v Hurley Medical Group

Thelma Johnson, Personal Representative of the Estate of Carl Johnson,
Michael S. Tashman
(Appeal from Ct of Appeals)
(Genesee – Farah, J.)
Hurley Medical Group, P.C., doing business as Hurley Medical Center,
Marc S. Berlin
Anne Loridas Randall
Dr. Moongilmadugu Inba-Vashvu, M.D.,
Alan R. Sullivan
Kenneth Jordan, M.D.,


​Thelma Johnson sued doctors who treated Carl Johnson before his death and Hurley Medical Center, for medical malpractice. The defendants filed a motion to dismiss the lawsuit. They argued that Johnson’s pre-suit notice of intent to sue, which is required by MCL 600.2912b, did not satisfy the statute’s requirements. As a result, the defendants contended, the statute of limitations was not tolled, and the time for filing the lawsuit had run out before Johnson sued them. The trial court agreed and dismissed the lawsuit, but the Court of Appeals reversed in an unpublished per curiam opinion. The Court of Appeals turned to Bush v Shabahang, 484 Mich 156 (2009), which held that MCL 600.5856, as amended in 2004, provided that a notice of intent filed in a medical malpractice case tolled the statute of limitations as long as it reflected a good-faith effort on the plaintiff’s part to comply with the requirements of MCL 600.2912b. Bush further explained that a plaintiff would be entitled to amend such a defective notice under the provisions of MCL 600.2301, which states that a court has the power to “amend any process, pleading or proceeding . . . for the furtherance of justice” and that the court “shall disregard any error or defect in the proceedings which do not affect the substantial rights of the parties.”

Applying Bush to Johnson’s case, the Court of Appeals noted that Bush analyzed MCL 600.5856 as it was amended in 2004, and that Johnson’s lawsuit, filed in 2000, would be governed by the version of MCL 600.5856 that existed before the 2004 amendment. But the panel concluded that this distinction did not matter, and that Johnson should be permitted to amend the defective notice of intent, with the amendment relating back to the date that the original notice was filed. The panel reasoned that it would be “anomalous to conclude that an amended notice of intent filed after 2004 . . . would relate back to the original notice’s mailing date, as Bush dictates, but that an amendment of a notice of intent filed under former MCL 600.5856(d) would not relate back to the date of the original notice’s filing.”The defendants appeal.