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March 19, 2026 Get Citation Alerts Download PDF Add Note

Estate of Glenn Steven Brooker v. Trinity Health Michigan

Michigan Court of Appeals

• Citations: None known

• Docket Number: 369013

• Opinion

• Authorities (19)

• Cited By (0)

• Summaries (0)

• Similar Cases (23.7K)

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Lead Opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

DARLENE L. BROOKER, Personal Representative FOR PUBLICATION
of the ESTATE OF GLENN STEVEN BROOKER, March 19, 2026
11:42 AM
Plaintiff-Appellant,

v No. 369013
Washtenaw Circuit Court
TRINITY HEALTH MICHIGAN, formerly known LC No. 23-000412-NH
as ST. JOSEPH MERCY HEALTH SYSTEM, WEN
JING CHUNG, M.D., and GLOBAL ANESTHESIA
SOLUTIONS, PLLC,

Defendants-Appellees.

Before: KOROBKIN, P.J., and YATES and FEENEY, JJ.

FEENEY, J.

In this medical-malpractice action, plaintiff-appellant, Darlene Brooker, the personal
representative of the estate of the decedent, Glenn Steven Brooker, appeals as of right the
December 2023 trial court order dismissing defendant-appellee, Trinity Health Michigan, from
this matter with prejudice. On appeal, however, plaintiff is only challenging the trial court’s
November 2023 order dismissing all claims against defendants-appellees, Wen Jing Chung, M.D.
and Global Anesthesia Solutions, PLLC,1 with prejudice.2 We affirm.

I. FACTS

This case arises from complications regarding the decedent’s shoulder surgery and
aftercare on November 10, 2020. Hours after his discharge from the hospital on November 11,

1
Within this opinion, any reference to “defendants” specifically refers to Chung and Global
Anesthesia Solutions.
2
“A party claiming an appeal of right from a final order is free to raise issues on appeal related to
prior orders.” Green v Ziegelman, 282 Mich App 292, 301 n 6; 767 NW2d 660 (2009) (quotation
marks citation, and alteration omitted).

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2020, the decedent died. The autopsy report indicated that the decedent’s cause of death was
“hypertensive arteriosclerotic cardiovascular disease” with contributing causes of “bupivacaine
adverse effects and marked obesity.” Notably, after his surgery, the decedent was hooked up to a
pain pump that administered bupivacaine.

On September 27, 2022, plaintiff mailed a presuit notice of intent (NOI) to defendants. On
February 10, 2023, defendants responded, denying any responsibility for the decedent’s injuries.
On March 28, 2023, plaintiff filed the complaint in this matter. On April 24, 2023, defendants
filed affidavits of noninvolvement, pursuant to MCL 600.2912c. On August 10, 2023, defendants
moved to dismiss plaintiff’s complaint with prejudice, arguing that: (1) plaintiff failed to rebut
defendants’ affidavits of noninvolvement, and (2) because the complaint was filed before the
expiration of the applicable notice period, plaintiff failed to commence a medical malpractice
action before the period of limitations expired.

On November 16, 2023, after receiving trial briefs and hearing oral arguments on the
matter, the trial court granted defendants’ motion and dismissed plaintiff’s claims against
defendants with prejudice. The trial court determined that plaintiff’s complaint—filed 182 days
after her NOI—was filed before the expiration of the applicable notice period under MCL
600.2912b(1). Therefore, pursuant to Tyra v Organ Procurement Agency of Mich, 498 Mich 68,
94; 869 NW2d 213 (2015), plaintiff’s complaint failed to commence a medical malpractice action
against defendants. Accordingly, because the statute of limitations period had run in the meantime,
the trial court concluded that dismissal with prejudice was required.3 Plaintiff now appeals.

II. DISMISSAL WITH PREJUDICE

On appeal, plaintiff argues that the trial court erred by dismissing her medical malpractice
claims against defendants with prejudice. We disagree.

A. PRESERVATION AND STANDARD OF REVIEW

Because this issue was raised, addressed, and decided by the trial court, it is preserved for
appellate review. See George v Allstate Ins Co, 329 Mich App 448, 453; 942 NW2d 628 (2019).
Although defendants moved for summary disposition pursuant to MCR 2.116(C)(7), (8), and (10),
the trial court did not specify the subsection of MCR 2.116(C) under which it granted summary
disposition. Nonetheless, because the trial court granted summary disposition on the basis that
plaintiff’s claims were barred by the statute of limitations, we will conduct our review based on
dismissal under MCR 2.116(C)(7).

MCR 2.116(C)(7) provides that dismissal of the action is appropriate when the statute of
limitations bars a claim. “We review de novo a trial court’s decision on a motion for summary
disposition, reviewing the record in the same manner as must the trial court to determine whether
the movant was entitled to judgment as a matter of law.” Bronson Methodist Hosp v Auto-Owners
Ins Co, 295 Mich App 431, 440; 814 NW2d 670 (2012). “When a party brings a motion for

3
The trial court declined to address defendants’ remaining argument regarding plaintiff’s failure
to rebut the affidavits of noninvolvement.

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summary disposition under MCR 2.116(C)(7), the contents of the complaint are accepted as true
unless contradicted by the documentation submitted by the movant.” Sunrise Resort Ass’n, Inc v
Cheboygan Co Rd Comm, 511 Mich 325, 333; 999 NW2d 423 (2023) (quotation marks, citation,
and alteration omitted). “If no facts are in dispute, and if reasonable minds could not differ
regarding the legal effect of those facts, the question whether the claim is barred is an issue of law
for the court.” Dextrom v Wexford Co, 287 Mich App 406, 429; 789 NW2d 211 (2010). But “if
a question of fact exists to the extent that factual development could provide a basis for recovery,
dismissal is inappropriate.” Id.

“We also review de novo questions of statutory interpretation.” Sunrise Resort Ass’n, 511
Mich at 333. “The goal of statutory interpretation is to effectuate the intent of the Legislature.”
Id. “To do so, we focus first on the statute’s plain language and examine the statute as a whole,
reading individual words and phrases in the context of the entire legislative scheme.” Id. at 333-
334 (quotation marks, citation, and alteration omitted). “When a statute’s language is
unambiguous, the Legislature must have intended the meaning clearly expressed, and the statute
must be enforced as written.” Id. at 334 (quotation marks and citation omitted).

B. THE TRIAL COURT’S DECISION

The statute of limitations for a medical malpractice action is two years. MCL 600.5805(8).
A medical malpractice action accrues “at the time of the act or omission that is the basis for the
claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has
knowledge of the claim.” MCL 600.5838a(1). A medical malpractice action is barred if it is not
commenced within the statutorily prescribed time limits. MCL 600.5838a(2).

MCL 600.2912b(1) states that “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 days before the
action is commenced.” (Emphasis added.) Compliance with this NOI requirement tolls the statute
of limitations. MCL 600.5856(c).

In Tyra, 498 Mich at 94, the Michigan Supreme Court held that “[a]lthough a civil action
is generally commenced by filing a complaint, a medical malpractice action can only be
commenced by filing a timely NOI and then filing a complaint and an affidavit of merit after the
applicable notice period has expired, but before the period of limitations has expired.” (Emphasis
added.) Therefore, when a plaintiff files a complaint before the expiration of the applicable notice
period, the premature filing does not commence an action or toll the statute of limitations. Id.

In this case, the statute of limitations for plaintiff’s medical malpractice claims expired on
November 10, 2022, two years after the decedent’s shoulder surgery. See MCL 600.5805(8); MCL
600.5838a(1). Plaintiff mailed her NOI on September 27, 2022, and she filed her complaint 182
days later, on March 28, 2023. Because plaintiff filed her complaint one day before the notice
period expired, her complaint failed to commence an action or toll the statute of limitations. See
Tyra, 498 Mich at 94. Accordingly, plaintiff failed to commence an action before the statute of
limitations expired, and the trial court did not err by granting defendant’s motion for summary
disposition and dismissing defendants with prejudice. See id. (“Because plaintiffs did not wait
until the applicable notice period expired before they filed their complaints and affidavits of merit,

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they did not commence actions against defendants. Because the statute of limitations has since
expired, plaintiffs’ complaints must be dismissed with prejudice.”).

On appeal, plaintiff raises several intervening arguments as to why the trial court’s ruling
was wrong in this case. We address, and dismiss, each argument in turn.4

1. MCR 2.112(L)(2)(a)

Plaintiff first argues that the trial court erred by granting defendants’ motion to dismiss
because defendants did not comply with MCR 2.112(L)(2)(a). We disagree.

Because plaintiff did not raise this specific issue in the trial court, it is not preserved for
appeal. See George v Allstate Ins Co, 329 Mich App at 453. Nonetheless, because this “issue
involves a question of law and the facts necessary for its resolution have been presented,” we will
overlook preservation requirements and briefly address it. See Tolas Oil & Gas Exploration Co v
Bach Servs & Mfg, LLC, 347 Mich App 280, 289-290; 14 NW3d 472 (2023).

MCR 2.112(L)(2)(a) provides that “all challenges to a notice of intent to sue must be made
by motion, filed pursuant to MCR 2.119, at the time the defendant files its first response to the
complaint, whether by answer or motion . . . .”

As an initial matter, defendants argue that MCR 2.112(L)(2)(a) does not apply to this case
because their challenge is not to the NOI, it is to the timing of plaintiff’s complaint—specifically
whether plaintiff filed the complaint before the mandatory notice waiting period had expired. But
in Sanders v McLaren-Macomb, 323 Mich App 254, 268-269; 916 NW2d 305 (2018), this Court
said that

the purpose of the NOI is simply to give advance notice of the claim being made
by the plaintiff to facilitate potential settlement. Thus, whether a challenge raised
by a defendant is based on the timeliness of the NOI, the plaintiff’s compliance with
the notice waiting period, a claim that no NOI was received, or the contents of the
NOI, the challenge is ultimately directed at the sufficiency of the notice received
regarding the plaintiff’s intent to sue. Consequently, each of these different types
of challenges is just one of the possible grounds on which to challenge the
sufficiency of the NOI and is essentially a challenge to the NOI. MCR
2.112(L)(2)(a) applies to “all” challenges to an NOI. . . . The phrase “all challenges
to a notice of intent to sue” in MCR 2.112(L)(2)(a) is therefore broad enough to

4
On appeal, plaintiff acknowledges that this Court is bound by all Michigan Supreme Court
precedent. See State Treasurer v Sprague, 284 Mich App 235, 242; 772 NW2d 452 (2009).
Nonetheless, in an attempt to preserve an argument for further appeal, plaintiff argues that Burton
v Reed City Hosp Corp, 471 Mich 745; 691 NW2d 424 (2005)—which: (1) was extensively
discussed in Tyra, and (2) held that a complaint filed before the expiration of the notice period did
not toll the statute of limitations—was wrongly decided. Because Burton has not been overruled
or superseded, we are bound by its holding and do not reach this argument. See State Treasurer,
284 Mich App at 242.

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encompass any of these grounds for challenging the notice given by a plaintiff . . . .
There is no language in the court rule to indicate that its application is limited only
to challenges to the NOI that are based on the content of the NOI. [Emphasis
added.]

In this case, defendants’ challenge was to “plaintiff’s compliance with the notice waiting
period . . . .” Id. at 268. Accordingly, MCR 2.112(L)(2)(a) applies to this case.

Defendants, resisting this conclusion, argue that the part of Sanders that plaintiff relies on
is dicta because that case involved a claim that notice was not received, not a claim that plaintiff
failed to comply with the notice waiting period. But the Sanders Court reached the conclusion it
did because “MCR 2.112(L)(2)(a) applies to ‘all’ challenges to an NOI,” which meant that they
need not be “based on the content of the NOI.” Id. at 269. This analysis was not dicta because it
was “essential to determination of the case,” Roberts v Auto-Owners Ins Co, 422 Mich 594, 597;
374 NW2d 905 (1985), and it also compels the conclusion that MCR 2.112(L)(2)(a) applies to a
“plaintiff’s compliance with the notice waiting period,” Sanders, 323 Mich App at 268.

On appeal, plaintiff argues that defendants failed to comply with MCR 2.112(L)(2)(a)
because defendants’: (1) “first response to the complaint” were their affidavits of noninvolvement
under MCL 600.2912c, which did not include a challenge to the NOI; and (2) challenge to the NOI
came too late when it was raised in their motion to dismiss. See id. at 278. We disagree.

It is unlikely that an affidavit of noninvolvement under MCL 600.2912c counts as a “first
response to the complaint” within the meaning of MCR 2.112(L)(2)(a). That is because the court
rule provides that “all challenges to a notice of intent to sue must be made by motion, filed pursuant
to MCR 2.119, at the time the defendant files its first response to the complaint, whether by answer
or motion . . . .” MCR 2.112(L)(2)(a) (emphasis added). This concluding phrase, “whether by
answer or motion,” narrows the definition of “first response to the complaint.” If a “first response
to the complaint” could be something other than an answer or motion, then the phrase “whether
by answer or motion” would be rendered mere surplusage in contravention of well-established
norms of statutory interpretation. See Casa Bella Landscaping, LLC v Lee, 315 Mich App 506,
510; 890 NW2d 875 (2016) (“Court rules, like statutes, must be read to give every word effect and
to avoid an interpretation that would render any part of the court rule surplusage or nugatory.”)
(quotation marks and citation omitted).

In the present case, defendants’ affidavits of noninvolvement were not an answer or
motion. An affidavit of noninvolvement is filed “instead of answering or otherwise pleading,”
MCL 600.2912c(1) (emphasis added); therefore, defendants’ affidavits of noninvolvement were
not an “answer.” Further, a motion is “[a]n application to the court for an order,” MCR
2.119(A)(1), and must “state the relief or order sought,” MCR 2.119(A)(1)(c). The record reflects
that defendants’ affidavits of noninvolvement did not apply for an order or state that they sought
other relief; therefore, defendants’ affidavits of noninvolvement were not a “motion.” Instead,
defendants challenged plaintiff’s compliance with the notice waiting period in the first answer or
motion filed, which was their August 2023 motion to dismiss, filed “pursuant to MCR 2.119.”
Therefore, defendants complied with MCR 2.112(L)(2)(a), and plaintiff cannot prevail on the
argument that defendants forfeited their notice-waiting-period defense.

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2. MCL 600.2912b(9)

Plaintiff further argues that trial court erred by granting defendants’ motion to dismiss
because MCL 600.2912b(9)—an exception shortening the 182-day notice period—applied in this
case. We disagree.

MCL 600.2912b(9) provides an exception shortening the standard 182-day notice period
for medical malpractice actions:

If at any time during the applicable notice period under this section a health
professional or health facility receiving notice under this section informs the
claimant in writing that the health professional or health facility does not intend to
settle the claim within the applicable notice period, the claimant may commence an
action alleging medical malpractice against the health professional or health
facility, so long as the claim is not barred by the statute of limitations.

In this case, plaintiff argues that defendants’ February 2023 response to the NOI, denying any
responsibility for the decedent’s injuries, was written notice that defendants did not intend to settle
the claim within the notice period; therefore, MCL 600.2912b(9) allowed plaintiff to file her
complaint early. We disagree.

Just as MCL 600.2912b(1) required plaintiff to send a NOI outlining the basis of her
medical malpractice claim, MCL 600.2912b(7) required defendants to respond. Defendants
simply complied with their statutory requirement in this case—nothing in their response indicates
that defendants waived their right to the full 182-day notice period. As defendants argue, to accept
the mere denial of liability as a waiver of the 182-day notice period would mean that the notice
period would be shortened in every contested case. Accordingly, defendants’ February 2023
response, merely denying liability, did not constitute written notice of an intent to waive the 182-
day notice waiting period under MCL 600.2912b(9).

1. MCL 600.2301

Plaintiff further argues that the trial court erred by failing to apply MCL 600.2301 and
disregard any errors in the proceedings that did not affect the parties’ substantial rights. We
disagree.

MCL 600.2301 provides as follows:

The court in which any action or proceeding is pending, has power to amend
any process, pleading or proceeding in such action or proceeding, either in form or
substance, for the furtherance of justice, on such terms as are just, at any time before
judgment rendered therein. The court at every state of the action or proceeding
shall disregard any error or defect in the proceedings which do not affect the
substantial rights of the parties.

Importantly, in Tyra, 498 Mich at 90-93, our Supreme Court held that MCL 600.2301 cannot save
a plaintiff’s actions when they prematurely file a complaint before the 182-day notice period has
expired and the statute of limitations period has run because there was never a pending action in

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such cases; this is because MCL 600.2301 only applies to pending actions or proceedings.
Moreover, the Court held that applying MCL 600.2301 under such circumstances would deprive
defendants of (1) their statutory right to a timely NOI, (2) the entirety of the notice waiting period,
and (3) a statute-of-limitations defense; accordingly, it “would not be ‘for the furtherance of
justice’ and would affect defendants’ ‘substantial rights.’ ” Id. at 92-93, quoting MCL 600.2301.

Because Tyra has not been overruled or superseded, we are bound by its holding that
MCL 600.2301 cannot be applied to cases such as this one. See State Treasurer v Sprague, 284
Mich App 235, 242; 772 NW2d 452 (2009). Plaintiff’s attempt to distinguish this case—by
arguing that filing of the complaint one day before the end of the notice period did not prejudice
defendants—is not persuasive. This same circumstance presented in Tyra.5 Additionally, the fact
that defendants were not served with the complaint until after the notice period expired is irrelevant
because an action is commenced when it is filed, not when it is served. See MCL 600.1901.

Affirmed.

/s/ Kathleen A. Feeney
/s/ Daniel S. Korobkin
/s/ Christopher P. Yates

5
In Tyra, our Supreme Court considered the consolidated cases of Tyra v Organ Procurement
Agency of Mich, 302 Mich App 208; 850 NW2d 667 (2013), and Furr v McLeod, 304 Mich App
677; 848 NW2d 465 (2014). In Furr, 304 Mich App at 680, the plaintiff filed her complaint one
day before the 182-day notice period expired.

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Concurrence Opinion

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.

STATE OF MICHIGAN

COURT OF APPEALS

DARLENE L. BROOKER, Personal Representative FOR PUBLICATION
of the ESTATE OF GLENN STEVEN BROOKER, March 19, 2026
11:42 AM
Plaintiff-Appellant,

v No. 369013
Washtenaw Circuit Court
TRINITY HEALTH MICHIGAN, formerly known LC No. 23-000412-NH
as ST. JOSEPH MERCY HEALTH SYSTEM, WEN
JING CHUNG, M.D., and GLOBAL ANESTHESIA
SOLUTIONS, PLLC,

Defendants-Appellees.

Before: KOROBKIN, P.J., and YATES and FEENEY, JJ.

KOROBKIN, P.J. (concurring).

Because plaintiff filed suit one day before the expiration of the mandatory 182-day notice
waiting period, MCL 600.2912b(1), defendants were entitled to dismissal. But dismissal with or
without prejudice? Under binding precedent—namely, Burton v Reed City Hosp Corp, 471 Mich
745; 691 NW2d 424 (2005)—the trial court was compelled to enter dismissal with prejudice
because the statute of limitations had expired, and we are likewise required to affirm. I write
separately to observe that the relevant doctrinal underpinning of the holding in Burton has been
thoroughly undermined by an intervening Supreme Court decision, Ottgen v Katranji, 511 Mich
223; 999 NW2d 359 (2023). Consequently, I encourage the Supreme Court to revisit Burton in
this or a similar case.

Ordinarily, the filing of a lawsuit (along with the timely service of the summons and
complaint) tolls the statute of limitations on the claims asserted therein. MCL 600.5856(a). That
way, defendants have timely notice of the claims against them, and plaintiffs have an opportunity
to correct any technical defects or mistakes through amendment or refiling. See Mair v Consumers
Power Co, 419 Mich 74, 83; 348 NW2d 256 (1984).

But in Burton, our Supreme Court held that if a complaint alleging medical malpractice is
prematurely filed—that is, before the expiration of the 182-day notice waiting period mandated by

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MCL 600.2912b(1)—then the statute of limitations is not tolled. Burton, 471 Mich at 747.
According to the Burton Court, this is because waiting until the end of the notice period is a
statutory requirement, and “failure to comply with the statutory requirement renders the complaint
insufficient to commence the action.” Id. at 754. In essence, the Court held, a premature lawsuit
is equivalent to there being no lawsuit at all, which in turn means that the tolling statute, MCL
600.5856(a), does not apply. See Tyra v Organ Procurement Agency of Mich, 498 Mich 68, 92;
869 NW2d 213 (2015) (“Burton held that the filing of a complaint before the expiration of the
[notice] waiting period does not commence an action or toll the running of the period of
limitations.”). The result is that if a lawsuit is dismissed for failure to wait the full 182 days as
required by MCL 600.2912b(1) and the not-tolled statute of limitations has expired at the time of
the dismissal, the dismissal must be (or, as a practical matter, is) with prejudice—so the premature
filing turns out to be a complete bar to recovery. See Ligons v Crittenton Hosp, 490 Mich 61, 89-
90; 803 NW2d 271 (2011). This is true even if the plaintiff miscounted and, as in the case before
us today, filed just one day too early. See Tyra, 498 Mich at 77 n 5. A harsh result.

Burton relied on Scarsella v Pollak, 461 Mich 547; 607 NW2d 711 (2000), overruled by
Ottgen, 511 Mich 223. See Burton, 471 Mich at 752-754. Scarsella involved one of MCL
600.2912b’s companion statutes, MCL 600.2912d, which required that a medical malpractice
complaint be accompanied by an affidavit of merit. Scarsella held that “for statute of limitations
purposes in a medical malpractice case, the mere tendering of a complaint without the required
affidavit of merit is insufficient to commence the lawsuit.” Scarsella, 461 Mich at 549. “In such
an instance, the filing of the complaint is ineffective, and does not work a tolling of the applicable
period of limitation” under MCL 600.5856(a). Id. at 553. And “[i]f the claim is time-barred, . . .
the complaint should be dismissed with prejudice.” Holmes v Mich Capital Med Ctr, 242 Mich
App 703, 706-707; 620 NW2d 319 (2000).

Again, it is clear from Burton that its holding regarding the notice waiting period was
grounded in Scarsella’s reasoning regarding the affidavit-of-merit requirement:

The directive in § 2912b(1) that a person “shall not” commence a medical
malpractice action until the expiration of the notice period is similar to the directive
in § 2912d(1) that a plaintiff’s attorney “shall file with the complaint an affidavit
of merit . . . .” Each statute sets forth a prerequisite condition to the commencement
of a medical malpractice lawsuit. The filing of a complaint before the expiration
of the statutorily mandated notice period is no more effective to commence a
lawsuit than the filing of a complaint without the required affidavit of merit. In
each instance, the failure to comply with the statutory requirement renders the
complaint insufficient to commence the action. [Burton, 471 Mich at 754-754.]

In Ottgen, our Supreme Court unanimously overruled Scarsella. See Ottgen, 511 Mich
at 228. There, the Court recognized that under Michigan law, “ ‘[a] civil action is commenced by
filing a complaint with the court.’ ” Id. at 231, quoting MCL 600.1901 and citing MCR 2.201(B).
Although the affidavit-of-merit requirement in MCL 600.2912d “is mandatory and must be
followed,” the Ottgen Court explained, “Scarsella erred by concluding that because the [affidavit
of merit] is mandatory, a case cannot commence without it and the statutory limitations period
therefore cannot be tolled.” Ottgen, 511 Mich at 233-234. Consequently, a medical malpractice
lawsuit filed without an affidavit of merit is subject to dismissal, but such dismissal need not be

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with prejudice if the statute-of-limitations period has been tolled while the lawsuit is pending. See
id. at 238-239.

Given the parallels between Burton and Scarsella, it is hard to see how Ottgen does not
sound the death knell, and rather loudly, for Burton. Burton and Scarsella each revolves around
the question of whether a plaintiff’s failure to comply with a mandatory requirement for a medical
malpractice complaint automatically means that the lawsuit did not truly commence, thereby
depriving the plaintiff of the benefit of tolling under MCL 600.5856(a). See Burton, 471 Mich
at 753-754. Although Scarsella dealt with the affidavit-of-merit requirement and Burton dealt
with the notice waiting period, the difference is immaterial to whether the statute of limitations is
tolled by filing the complaint, as MCL 600.5856(a) prescribes.

In considering how failing to comply with the notice waiting period affects tolling of the
statute of limitations, it is worth considering a similar prerequisite to suing that is sometimes found
in our laws—the exhaustion requirement. In particular, consider that under the Prison Litigation
Reform Act (PLRA), 42 USC 1997e et seq.,1 prisoners must exhaust all available administrative
remedies in prison before suing over prison conditions in federal court. 42 USC 1997e(a). Like a
presuit notice waiting period, a charitable view of an exhaustion requirement is that it provides the
parties an opportunity to attempt to resolve disputes short of litigation. See Jones v Bock, 549 US
199, 219; 127 S Ct 910; 166 L Ed 2d 798 (2007); Porter v Nussle, 534 US 516, 524-525; 122 S Ct
983; 152 L Ed 2d 12 (2002). Much like when a medical malpractice plaintiff files suit without
complying with the notice waiting period, when a prisoner files suit without first exhausting all
available remedies, their unexhausted claims are subject to dismissal. Jones, 549 US at 219-224.

Recently, the United States Court of Appeals for the Sixth Circuit confirmed that in such
cases, the prisoner’s premature filing of the lawsuit tolls the statute of limitations—even though
the lawsuit must be dismissed for failure to exhaust. Heard v Strange, 127 F4th 630, 634 (CA 6,
2025). In lawsuits brought under 42 USC 1983, federal courts borrow statute-of-limitations rules,
including tolling rules, from state law. Id. at 633. So the Sixth Circuit relied on Michigan law—
and in particular, MCL 600.5856(a)—to conclude that tolling applies when a prisoner fails to
exhaust. Id. at 633-634. Thus, dismissal is without prejudice, id. at 636, and the plaintiff may
refile after exhausting. See id. at 635 (noting that the statute of limitations is also tolled while
administrative remedies are being exhausted).

With all of the foregoing in mind, the statute of limitations on plaintiff’s medical
malpractice claim should be deemed tolled under MCL 600.5856(a) beginning on the day plaintiff
filed suit. Although plaintiff’s complaint was subject to dismissal because it was filed one day too
early in violation of the mandatory 182-day notice waiting period, MCL 600.2912b(1), dismissal
should have been without prejudice because there was time remaining on the statute-of-limitations
clock when plaintiff filed the complaint (and there is no dispute that defendants were timely

1
Michigan has its own state-law PLRA, MCL 600.5501 et seq. Recently, our Supreme Court held
that a plaintiff’s failure to comply with state PLRA requirements requires dismissal, but not
necessarily dismissal with prejudice. Hogan v Wayne Co, 28 NW3d 334, 336-337 (Mich, 2025).

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served).2 Following the dismissal, plaintiff need merely wait one more day to complete the notice
waiting period before refiling. The refiled lawsuit would be timely under MCL 600.5856’s tolling
provisions.

Notwithstanding the above analysis, I acknowledge—as does plaintiff—that we are bound
by Burton unless and until it is overruled: “The Court of Appeals is bound to follow decisions by
[the Supreme] Court except where those decisions have clearly been overruled or superseded and
is not authorized to anticipatorily ignore our decisions where it determines that the foundations of
a Supreme Court decision have been undermined.” Associated Builders & Contractors v Lansing,
499 Mich 177, 191-192; 880 NW2d 765 (2016) (footnote omitted; some emphasis omitted). The
“foundations” of Burton “have been undermined,” but it has not “clearly been overruled.” Id.3
Accordingly, the trial court was correct to dismiss plaintiff’s claim with prejudice, and I concur
with the majority that we must affirm. But for the reasons stated, I believe Supreme Court review
would be appropriate in this case or a similar one to revisit Burton in light of Ottgen and allow the
statute of limitations to be tolled under MCL 600.5856(a) when a medical malpractice lawsuit is
prematurely filed before the end of the notice waiting period.

/s/ Daniel S. Korobkin

2
Because plaintiff mailed a presuit notice of intent to defendants on September 27, 2022, the
statute of limitations was tolled during the notice waiting period. See MCL 600.5856(c); MCL
600.2912b(2); Haksluoto v Mt Clemens Regional Med Ctr, 500 Mich 304, 307, 310; 901 NW2d
577 (2017).
3
Indeed, the Court in Ottgen specifically stated that it was not “decid[ing] the effect, if any, of
today’s decision on” Burton and related cases. Ottgen, 511 Mich at 243 n 9.

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