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STATE OF MICHIGAN
COURT OF APPEALS


JILL D. TYTOR, as Personal Representative of the Estate of NORBERT J. TYTOR, Deceased, Plaintiff-Appellant, v JAMES MACKENZIE, M.D., Defendant-Appellee.

UNPUBLISHED February 9, 2006

No. 262824 Oakland Circuit Court LC No. 04-057544-NM

Before: Murray, P.J., and Jansen and Kelly, JJ. PER CURIAM. Plaintiff, Jill D. Tytor, personal representative of the estate of Norbert J. Tytor ("Tytor"), deceased, appeals as of right an order granting summary disposition in favor of defendant, James MacKenzie, M.D. Plaintiff argues that the Michigan Supreme Court's decision in Burton v Reed City Hosp Corp, 471 Mich 745; 691 NW2d 424 (2005) ("Burton II"), should be prospectively applied under the circumstances of this case and, therefore, that summary disposition in favor of defendant was improper. We affirm. In this wrongful death action, plaintiff alleges that defendant, who was Tytor's physician, negligently failed to properly diagnose and treat Tytor's progressively worsening heart problems. Plaintiff claims that defendant's failure to treat Tytor or to refer him for specialized care contributed Tytor's death, on February, 22, 2002, following an attempted valve replacement surgery. Plaintiff was appointed personal representative of Tytor's estate on April 25, 2002. She served the notice of intent required by MCL 600.2912b for actions alleging medical malpractice on December 3, 2003. Plaintiff proceeded to file her complaint on April 13, 2004. On January 6, 2005, defendant moved for summary disposition pursuant to MCR 2.116(C)(7). He argued that plaintiff's action must be dismissed because she did not wait 182 days to file suit after serving a notice of intent, as required by MCL 600.2912b(1). He also claimed that, at the earliest, she could have filed 154 days after serving the notice of intent as allowed by MCL 600.2912b(8) because defendant had not sent a written response by that time; regardless, her claim was filed before this 154-day period expired on May 5, 2004. Plaintiff conceded that she violated MCL 600.2912b by failing to wait 154 days before filing and agreed that dismissal without prejudice was the correct remedy for non-compliance with the statute. However, she claimed that she was also authorized by law to refile the suit after -1-


dismissal because the statute of limitations was tolled when she filed the early complaint along with her affidavit of merit. She cited Burton v Reed City Hosp Corp, 259 Mich App 74, 87, 89; 673 NW2d 135 (2003), rev'd 471 Mich 745 (2005) ("Burton I"), in which this Court held that a complaint filed before the termination of the notice period

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