Calculating Notice of Intent and Tolling Period of Malpractice Claims

A few weeks ago the Michigan Supreme Court ruled on an issue of first impression for the court: is the limitations period for a malpractice claim tolled when the Notice of Intent (“NOI”) is filed on the last day of the limitations period? The Court held that the limitations period was tolled and provided plaintiff with an additional day to file the lawsuit.

Under MCL 600.2912b(1), a potential malpractice plaintiff must file a NOI at least 182 days prior to filing a lawsuit. If a potential plaintiff files the NOI before the expiration of the statute of limitations (“SOL”), but the SOL would expire during this 182 day time period, the SOL is tolled for the duration of the notice period.

In Haksluoto, the statute of limitations expired on December 26, 2013 and plaintiff mailed his NOI on that same day. Plaintiff waited the 182 days and filed the lawsuit on June 27, 2014, the 183rd day. Plaintiff argued that there was still time on the clock on December 26 and that the tolling period must be rounded up, while defendant argued that when calculating time periods that “the day of the act” is not included, citing to MCR 1.108(1), and that plaintiff’s action was time-barred.

The Court reaffirmed the general proposition that “our laws reject fractions of a day,” which meant that the Court needed to either round up to a whole day remaining or round down to no days remaining in the limitations period. When deciding whether to round up or down, the Court analogized days to beads on an abacus.

When counting days, the bead is not moved “until the day is completely over” (emphasis in original). The Court reasoned that because the day was not over when the NOI was filed (there was still half a day), and that because the NOI was filed on that day, the entire day was preserved for use when the 182-day period expired.

The Court specifically held, “The rule is 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.”

A link to the full decision can be found here.