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STATE OF MICHIGAN COURT OF APPEALS

CORRINE ANN HOFFMAN, Plaintiff-Appellant, v MANOO BOONSIRI, M.D., MANOO BOONSIRI, M.D., P.C., JOHN DOE, M.D., and MERCY MEMORIAL HOSPITAL SYSTEM, a/k/a MERCY MEMORIAL HOSPITAL CORPORATION, Defendants-Appellees.

FOR PUBLICATION September 14, 2010 9:10 a.m. No. 292040 Monroe Circuit Court LC No. 08-025588-NH

Before: TALBOT, P.J., and METER and DONOFRIO, JJ. DONOFRIO, J. In this medical-malpractice action, plaintiff appeals as of right an order granting defendants summary disposition pursuant to MCR 2.116(C)(7) on the bases that plaintiff failed to file a notice of intent (NOI) in accordance with MCL 600.2912b and the period of limitations had expired. The issue on appeal involves the timing of plaintiff's notices of intent and the filing of plaintiff's complaint. Because perfect notice is not required, any subsequent amended NOI filings can be aggregated with the original NOI, and plaintiff gave written notice not less than 182 days before she commenced the action, we vacate the trial court's order granting defendants' motions for summary disposition and remand for further proceedings. I The pertinent facts relevant to this appeal are not in dispute. Plaintiff's complaint alleges that she went to a hospital of defendant Mercy Memorial Hospital System (Mercy Hospital) because of problems with an arteriovenous fistula. Defendant Dr. Manoo Boonsiri performed surgery on February 24, 2006. While plaintiff was at Mercy Hospital, she suffered severe ischemic changes to her left hand and arm that went untreated until she was transferred to another hospital. She underwent emergency surgery, which was unsuccessful because of the delay, and now has permanent injury to her left upper extremity. The only issue on appeal involves the timing of plaintiff's notices of intent and the filing of plaintiff's complaint. The relevant dates are as follows:

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February 24 to 27, 2006 August 9, 2007 February 21, 2008 June 23, 2008

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Dates of alleged malpractice NOI sent First amended NOI sent Complaint filed

The timing of these actions implicates plaintiff's ability to comply with both the two-year statutory limitations period and the notice waiting period. Plaintiff filed her complaint more than two years after the alleged malpractice. Therefore, for the action to be considered timely, plaintiff must be able to obtain the benefit of the tolling of the limitations period afforded by the filing of the amended NOI. With respect to the amended NOI, however, the complaint was arguably filed prematurely because the 182-day notice waiting period had not expired. Thus, for purposes of complying with the required waiting period, plaintiff relies on the original NOI. In response, defendants argue that because plaintiff did not wait the requisite period after filing the amended NOI, she is not entitled to the tolling that would otherwise result from an amended NOI. In the trial court, defendants1 moved for summary disposition pursuant to MCR 2.116(C)(7), asserting that plaintiff's complaint was filed only 123 days after she sent the amended NOI. MCL 600.2912b(1) provides that a person shall not commence an action alleging medical malpractice unless the person has given written notice "not less than 182 days before the action is commenced." Citing Burton v Reed City Hosp Corp, 471 Mich 745; 691 NW2d 424 (2005), defendants argued that the prematurely filed complaint was insufficient to commence a cause of action. Defendants contended that the 182-day tolling of the limitations period that resulted from the filing of the amended NOI ended, at the latest, on August 27, 2008. According to defendants, because plaintiff failed to timely commence an action before the expiration of the limitations period, plaintiff's claims were barred and defendants were entitled to summary disposition pursuant to MCR 2.116(C)(7). In response, plaintiff contended that she complied with MCL 600.2912b(1) because she filed the complaint 319 days after she sent the original NOI, far exceeding the 182-day requirement. She contended that the amended NOI tolled the limitations period and that the complaint was filed before the limitations period expired. The Boonsiri defendants countered that although plaintiff had not added a new defendant in the amended NOI, she had added new allegations and "when you add new allegations we're entitled to another 182 days to investigate those allegations." They maintained that although Mayberry v Gen Orthopedics, PC, 474 Mich 1; 704 NW2d 69 (2005), did not address the situation, the case illustrated that when a second NOI is filed, a new waiting period is applied.

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Defendants' first motion for summary disposition was filed on behalf of all the defendants. Mercy Hospital filed an amended motion that raised the same arguments. Defendants Manoo Boonsiri, M.D., and Manoo Boonsiri, M.D., P.C. (the Boonsiri defendants), filed a separate motion that raised the same arguments.

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After entertaining oral argument on the motions, the trial court took the matter under advisement and issued a written opinion that incorporated a separate memorandum of law. The trial court stated that Mayberry, 474 Mich at 9-10, indicated that tolling from a second NOI only applied if the notice otherwise complied with the requirements of MCL 600.2912b. The trial court concluded that there was "no legal basis for Plaintiff's belief that when filing a second NOI the statutory requirements do not have to be followed." The trial court then compared the original and the amended NOI and noted plaintiff's contention that they were essentially the same: Whether or not this is true, unfortunately, the first NOI had already expired, and under the application of the Mayberry case, the second NOI could not be used to give the Plaintiff the ability to tack an additional or successive 182 days so as to `[enjoy] the benefit of multiple tolling periods'. Mayberry, supra at 6, 7 and 10; MCL 600.2912b(6). Accordingly, the trial court granted defendants' motions for summary disposition pursuant to MCR 2.116(C)(7). Plaintiff now appeals as of right. II This Court reviews de novo a trial court's decision on a motion for summary disposition under MCR 2.116(C)(7) (claim is barred by statute of limitations). DiPonio Constr Co, Inc v Rosati Masonry Co, Inc, 246 Mich App 43, 46-47; 631 NW2d 59 (2001). When reviewing a motion for summary disposition under MCR 2.116(C)(7), the trial court must accept the nonmoving party's well-pleaded allegations as true and construe the allegations in the nonmovant's favor to determine whether any factual development could provide a basis for recovery. Amburgey v Sauder, 238 Mich App 228, 231; 605 NW2d 84 (1999). Further, we review de novo a question of statutory interpretation. Bush v Shabahang, 484 Mich 156, 164; 772 NW2d 272 (2009). III On appeal, plaintiff argues that the trial court erred by concluding that defendants were entitled to summary disposition on the ground that plaintiff failed to comply with the mandatory waiting period provided in MCL 600.2912b. Plaintiff contends that her complaint was prematurely filed if the waiting period is measured from the time that the amended NOI was filed, but not if the period is measured from the mailing of the original NOI. Plaintiff further maintains that MCL 600.2912b(1) requires a plaintiff to give written notice not less than 182 days before the action is commenced, and because she mailed the first NOI 319 days before she filed the complaint, she fully complied with MCL 600.2912b(1). A medical-malpractice action that is not commenced within the time prescribed by MCL 600.5838a is barred. MCL 600.5838a(2). In the present case, there is no dispute that the twoyear period in MCL 600.5805(6) is applicable: (1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued . . . the action is commenced within the periods of time prescribed by this section. -3-

* * * (6) . . . [T]he period of limitations is 2 years for an action charging malpractice. [MCL 600.5805(1) and (6).] Because plaintiff did not file a complaint within two years after the claim accrued she relies on the tolling of the statute of limitations provided in MCL 600.5856(c). MCL 600.5856(c) states as follows: The statutes of limitations or repose are tolled in any of the following circumstances: * * * (c) At the time notice is given in compliance with the applicable notice period under section 2912b, if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given. Before it was amended by 2004 PA 87, effective April 22, 2004, MCL 600.5856 provided, in pertinent part: The statutes of limitations or repose are tolled: * * * (d) If, during the applicable notice period under section 2912b, a claim would be barred by the statute of limitations or repose, for not longer than a number of days equal to the number of days in the applicable notice period after the date notice is given in compliance with section 2912b. The referenced section, MCL 600.2912b, governs the written notice of intent to file a claim. The statute sets forth requirements with respect to the timing of the notice and its content. MCL 600.2912b(1) states: Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182[2] days before the action is commenced.

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A claimant may file an action after a lesser time under certain circumstances that are not at issue in this matter.

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Although the language of the preamendment version of MCL 600.5856(d) is very similar to the current version of MCL 600.5856(c), in Bush, 484 Mich at 169, our Supreme Court explained that the change clarified the focus of the operative language: "Thus, pursuant to the clear language of

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