                          STATE OF MICHIGAN

                           COURT OF APPEALS



PRECIOUS HACKETT and JAMES HACKETT,                                UNPUBLISHED
                                                                   August 27, 2015
               Plaintiffs-Appellants,


v                                                                  No. 320901
                                                                   Wayne Circuit Court
ST. JOHN HOSPITAL AND MEDICAL                                      LC No. 13-004298-NH
CENTER,

               Defendant-Appellee.


Before: WILDER, P.J., and SHAPIRO and RONAYNE KRAUSE, JJ.

PER CURIAM.

        Plaintiffs appeal by right the trial court order granting summary disposition to defendant
in this medical malpractice action. We affirm.

        The operative facts in this case are undisputed. On September 29, 2012, plaintiffs served
defendant with a notice of intent (NOI) to file a medical malpractice claim pursuant to MCL
600.2912b. On March 29, 2013, 181 days later, plaintiffs filed a complaint alleging that plaintiff
Precious Hackett was injured as a result of negligent care provided by defendant and its medical
staff in September 2010. Plaintiff James Hackett alleged loss of consortium as a result of
Precious’s injuries.

        Defendant answered that plaintiffs’ claims were barred because they had failed to comply
with the notice provisions of MCL 600.2912b, specifically, that plaintiffs had filed their
complaint one day before the expiration of the 182-day waiting period required by the statute.
The trial court agreed and granted summary disposition in favor of defendant, ruling that because
plaintiffs’ complaint was filed one day early, they did not “commence” their action and, because
the statute of limitations had run, defendant was entitled to summary disposition. The court also
noted that because the action was not “pending” due to plaintiffs’ early filing, it was prohibited




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from using MCL 600.231 to amend the filing date or otherwise rescue plaintiffs’ claims. On
appeal, plaintiffs allege that these rulings were in error.1

        The Michigan Supreme Court recently rejected the same arguments that plaintiffs make
here. In Tyra, slip op at 19-20, the Court held that “plaintiffs’ filing of their complaints before
the expiration of the NOI waiting period did not commence their actions or toll the running of
the limitations period.” Thus, according to the Supreme Court, plaintiffs’ filing of their
complaint before the expiration of the 182-day waiting period did not commence their action or
toll the running of the statute of limitations. The Tyra Court also held that MCL 600.2301
cannot save a medical malpractice action where the complaint was filed one day before the
expiration of the 182-day waiting period because “MCL 600.2301 only applies to pending
actions or proceedings and there were never pending actions in these cases. Plaintiffs’
complaints, filed before NOI waiting period expired, could not commence an action.” Id., slip
op at 20.

       Affirmed. Costs shall not be taxed.



                                                            /s/ Kurtis T. Wilder
                                                            /s/ Douglas B. Shapiro
                                                            /s/ Amy Ronayne Krause




1
  We review a trial court’s grant of summary disposition de novo. See Tyra v Organ
Procurement Agency of Mich, ___ Mich ___; ___ NW2d ___ (July 22, 2015; Docket Nos.
148079, 148087 & 149344), slip op at 6.



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