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Notice of Intent Filed on Last Day of Limitations Period; Tolling


A man presented to the emergency room (ER) complaining of abdominal pain and gastrointestinal distress. The man underwent a CT scan. The radiologist who reviewed the CT scan found nothing remarkable. The man was discharged.

 

Eleven days later the man returned to the ER. The man was diagnosed with a condition that required immediate surgery. The man underwent emergency surgery.

 

The man sued the radiologist for medical malpractice. The complaint alleged that if the CT scan had been properly interpreted, the man’s condition would have been detected sooner and treated before it progressed.

 

Michigan law requires that a prospective medical malpractice plaintiff provide a potential defendant at least 182 days of notice prior to filing suit. If a plaintiff files a notice of intent (NOI) to file a claim before the limitations period for the malpractice action expires, but the limitations period for the malpractice action would otherwise expire during the 182-day notice period, the statute of limitations for the malpractice action is tolled for the duration of the notice period.

 

It was undisputed that the end of the limitations period for the man’s medical malpractice claim was two years from the date the radiologist interpreted the CT scan. The man served the radiologist with the NOI on the final day of the limitations period. After waiting 182 days from the final day of the limitations period, the man then filed his complaint on the 183rd day.

 

The radiologist filed a motion for summary judgment arguing that the suit was time-barred. The trial court denied the motion.

 

The Michigan Court of Appeals held that the man’s complaint, which was filed the day after the notice period ended, was untimely. The appellate court reasoned that filing the NOI on the last day of the limitations period was not sufficient to toll the statute of limitations. The appellate court reversed the trial court.

 

The Supreme Court of Michigan reversed the appellate court’s reversal of the trial court’s denial of the radiologist’s motion for summary judgment. The court held that the limitations period is tolled when the NOI is filed on the last day of the limitations period, leaving no whole days of the limitations period to toll.

 

The limitations period is tolled when the NOI is filed on the last day of the limitations period, leaving no whole days of the limitations period to toll. The court explained that it had chosen to err on the side of affording parties somewhat more time rather than somewhat less-- to “round up” rather than “round down”-- because this was consistent with the preponderance of American authority making it less likely that those who are to act are deceived and misled in their action. Less than a whole day remaining in the limitations period qualifies as time remaining on the applicable statute of limitations as required to trigger tolling. The court held that once the notice period ends and the time for the plaintiff to bring a claim once again begins to run, it will run for the number of whole days remaining in the limitations period when the NOI was filed, plus one day to reflect the fractional day remaining when the NOI itself was filed. If the NOI is served on the final day of the limitations period and only a fraction of a day is left, that fractional day is tolled. Because the man filed the NOI before the end of the day on the last day of the limitations period, the NOI tolled the limitations period, leaving one day for the man to file his complaint after the notice period ended. The court concluded that the man’s complaint, which was filed the day after the notice period ended, was timely.

 

The Supreme Court of Michigan reversed the appellate court’s reversal of the trial court’s denial of the radiologist’s motion for summary judgment.

 

See: Haksluoto, et al., v. Mt. Clemens Regional Medical Center, 2017 WL 2800043 (Mich., June 27, 2017) (not designated for publication).

 

See also Medical Law Perspectives Report: Gut-Wrenching Pain: Liability Risks Related to Gastrointestinal Disorders

 

See also Medical Law Perspectives Report: Emergency Medical Services: Liability and Immunity for Medical Rescue

 

See also Medical Law Perspectives Report: When Urgency Leads to Errors: Liability for Emergency Care

 

See also Medical Law Perspectives Report: Foodborne Illness: When Grabbing a Bite Can Be Deadly

 

See also Medical Law Perspectives Report: Too Much, Too Little, Too Late: Injuries from Delays and Failures to Perform CT Scans or Overexposure to Radiation

 

 

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