The “notice of intent” must describe what occurred, the applicable standard of care, how the healthcare professional or facility breached the standard of care, and how the alleged breach caused the claimant’s injuries. (MCL 600.2912b)

The purpose of the notice of intent is to give potential defendants a chance to review the claim, investigate their defenses, and potentially encourage pre-suit settlement discussions. Generally, a claimant must wait 182 full days after providing notice before commencing a medical malpractice action. Id. Michigan courts have interpreted this statutory notice period to require the filing of a complaint on “day 183” to be timely. See Haksluto v Mt Clemens Regional Med Ctr, 500 Mich 304, 325-26; 901 NW2d 577 (2017).

Under Michigan law, if a notice of intent is provided with less than 182 days remaining in the statute of limitations, the statute of limitations is “tolled” for the number of days remaining in the limitations period before the notice period expires. MCL 600.5856(c). Filing a complaint after the 182-day notice period expires further tolls the statute of limitations while the lawsuit is pending. MCL 600.5856(c). However, filing a complaint before the notice period expires fails to commence a medical malpractice action to toll the statute of limitations. See Burton v Reed City Hosp Corp, 471 Mich 745, 754 (2005); Tyra v Organ Agency of Michigan, 498 Mich 68, 94 (2015).

After receiving a notice of intent, the healthcare professional or facility has 154 days to respond with a counter-statement of facts and defenses. MCL 600.2912b(7). If no response is provided within this timeframe, the claimant may take advantage of a shorter notice period to commence an action at the expiration of the 154-day response deadline. MCL 600.2912b(8). That said, the claimant’s ability to commence an action earlier does not remove the benefit of the 182-day tolling provisions described above. Conversely, if the healthcare professional or facility does furnish a written response to the notice, the plaintiff must wait the entire 182 days without exception. As a strategic matter, most defendants choose not to respond in writing to a notice of intent, finding no discernable benefit; but perhaps this usual practice merits further consideration.

So, what is the potential benefit of restricting a claimant to the 182-day notice period by responding to the notice of intent? A recent lower court decision granting summary disposition in the Washtenaw County Trial Court provides a helpful illustration. In Brooker v Chung, Case No. 23-000412-NH, the plaintiff sent a notice of intent to the defendants with less than 182 days remaining in the statute of limitations. In that case, the defendants sent a timely response to the notice within 154 days. As such, the plaintiff was required to wait until “day 183” to commence an action. However, the plaintiff filed her complaint on “day 182.” The defendants argued that the premature filing of a complaint on “day 182” failed to timely commence the action within the applicable statute of limitations. The Washtenaw County Trial Court agreed and dismissed the complaint with prejudice. This case is currently pending appeal in the Michigan Court of Appeals.

Although pending on appeal, this case should encourage defendants to consider responding to notices of intent as a matter of course. Had the defendants failed to respond to the notice of intent within 154 days, the plaintiff in Brooker would have had the opportunity to take advantage of the shorter notice period, and the complaint would have been timely. Therefore, by responding to the notice of intent, the defendants preserved a valid statute of limitations defense. In turn, plaintiffs must remain vigilant when calculating the deadline to file their complaints no earlier than 183 days after the notice of intent is sent to avoid dismissal in cases where tolling applies.