ROBERTS v. MECOSTA COUNTY GENERAL HOSP.

YOUNG, J.

This case again calls into question the authority of courts to create terms and conditions at variance with those unambiguously and mandatorily stated in a statute. We reaffirm that the duty of the courts of this state is to apply the actual terms of an unambiguous statute.

In this medical malpractice case, the Court of Appeals concluded that defendants had waived their ability to object to the sufficiency of the notices of intent by failing to raise their objections before the filing of the complaint. We hold that the statute of limitations cannot be tolled under M.C.L. § 600.5856(d) unless notice is given in compliance with all the provisions of M.C.L. § 600.2912b. We further hold that M.C.L. § 600.2912b places the burden of complying with the notice of intent requirements on the plaintiff and does not implicate a reciprocal duty on the part of the defendant to challenge any deficiencies in the notice before the complaint is filed. In addition, because M.C.L. § 600.5856(d) is a tolling provision and a plaintiff relies on a tolling provision to negate a statute of limitations defense raised by a defendant, a defendant does not need to assert the defense or challenge a plaintiff's compliance with M.C.L. § 600.2912b, as required by M.C.L. § 600.5856(d), until the plaintiff files suit. For these reasons, we reverse the Court of Appeals opinion and remand this matter for further proceedings consistent with this opinion.

I. Facts and Proceedings

Plaintiff was pregnant and sought treatment because she was experiencing severe pain in her abdomen. She was diagnosed as having suffered a spontaneous abortion and a D & C was performed. Plaintiff alleges that it was later discovered that she had actually been suffering from an ectopic pregnancy, not a spontaneous abortion, and that her left fallopian tube had burst. Emergency surgery was performed to remove plaintiff's left fallopian tube. Plaintiff claims that as a result of the second operation, she can no longer bear children because her right fallopian tube had previously been removed.

Plaintiff decided to pursue a medical malpractice claim, alleging that defendants misdiagnosed her condition and subsequently performed an unnecessary operation.

Plaintiff served a notice of intent on defendant Mecosta County General Hospital on September 19, 1996, and on the remaining defendants on September 23, 1996. Serving these notices constituted plaintiff's attempt to (1) meet the notice requirements for medical malpractice actions prescribed by M.C.L. § 600.2912b and (2) toll the statute of limitations pursuant to M.C.L. § 600.5856(d).

After the waiting period required under M.C.L. § 600.2912b had passed, plaintiff filed her complaint.1 Thereafter, defendants filed motions for summary disposition. Defendants argued, inter alia, that plaintiff's claims were barred by the statute of limitations because the notices of intent failed to comply with the requirements outlined in M.C.L. § 600.2912b(4).2 Specifically, defendants asserted that plaintiff's notices failed to sufficiently state the standard of care, the manner in which the standard was breached, the action the defendants should have taken, and the proximate cause of the injury. Defendants advanced the position that, since the notices were insufficient, the period of limitation was not tolled under M.C.L. § 600.5658(d) and had therefore expired. The trial court granted the motions for summary disposition.

The Court of Appeals reversed and remanded, holding that defendants had waived their ability to challenge plaintiff's failure to comply with the notice requirements because they did not raise their objections before the time the complaint was filed:

* * *

Accordingly, we hold that any objections to a notice of intent under subsection 2912b(1) must be raised before the filing of the complaint. Summary disposition based on any alleged defect in the notice of intent not raised by the defendant before the filing of the complaint is not appropriate. [240 Mich.App. 175, 184-186, 610 N.W.2d 285 (2000).]

We granted defendants' application for leave to appeal to consider the propriety of the Court of Appeals holding that a plaintiff's noncompliance with the provisions of § 2912b is waived by a defendant if no objection is raised before the filing of the complaint.

II. Standard of Review

Questions of statutory interpretation are reviewed de novo by this Court. In re MCI Telecommunications Complaint, 460 Mich. 396, 413, 596 N.W.2d 164 (1999). Similarly, we review de novo decisions on summary disposition motions. Herald Co. v. Bay City, 463 Mich. 111, 117, 614 N.W.2d 873 (2000).

III. ANALYSIS

A. The Tolling Statute Mandates Compliance with all of M.C.L. § 600.2912b

The limitation period for medical malpractice actions is two years. MCL § 600.5805(5). This period is tolled under M.C.L. § 600.5856(d)

Plaintiff argues that the language "is given in compliance with section 2912b" indicates that the Legislature intended only the delivery provisions of § 2912b to be applicable to § 5856(d). In other words, plaintiff's position is that, as long as § 2912b(2)3 is satisfied, the statute of limitations is tolled under § 5856(d), notwithstanding noncompliance with § 2912b(4). On the basis of a plain reading of the statute, we reject this contention.

An anchoring rule of jurisprudence, and the foremost rule of statutory construction, is that courts are to effect the intent of the Legislature. People v. Wager, 460 Mich. 118, 123, n. 7, 594 N.W.2d 487 (1999). To do so, we begin with an examination of the language of the statute. Wickens v. Oakwood Healthcare System, 465 Mich. 53, 60, 631 N.W.2d 686 (2001). If the statute's language is clear and unambiguous, then we assume that the Legislature intended its plain meaning and the statute is enforced as written. People v. Stone, 463 Mich. 558, 562, 621 N.W.2d 702 (2001). A necessary corollary of these principles is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. Omne Financial, Inc. v. Shacks, Inc., 460 Mich. 305, 311, 596 N.W.2d 591 (1999).

Section 5856(d) clearly provides that notice must be compliant with § 2912b, not just § 2912b(2) as plaintiff contrarily contends. Had the Legislature intended only the delivery provisions of § 2912b to be applicable, we presume that the Legislature would have expressly limited compliance only to § 2912b(2). However, the Legislature did not do so. Rather, it referred to all of § 2912b.

Since the statute is clear and unambiguous, this Court is required to enforce § 5856(d) as written. Stone, supra. As a result, the tolling of the statute of limitations is available to a plaintiff only if all the requirements included in § 2912b are met.

B. The Notice of Intent Statute, M.C.L. § 600.2912b

The Court of Appeals did not decide whether the trial court erred in determining that plaintiff's notices of intent did not comply with § 2912b(4). Instead, the Court concluded that defendants had waived4 their ability to challenge the sufficiency of the notices under that section, by failing to object to any deficiencies before the filing of the complaint.

The notice of intent required for medical malpractice actions is statutorily mandated. MCL 600.2912b(1) provides:

Subsection 2912b(4) provides that "[t]he notice given to a health professional or health facility under this section shall contain a statement of at least" the facts, standard of care, action that should have been taken, breach, proximate cause, and the names of those being notified.

The phrases "shall" and "shall not" are unambiguous and denote a mandatory, rather than discretionary action. People v. Grant, 445 Mich. 535, 542, 520 N.W.2d 123 (1994). Likewise, the phrase "at least" plainly reflects a minimal requirement and cannot plausibly be considered ambiguous. Because § 2912b is unambiguous, we must enforce its plain language.

Subsections 2912b(1) and (4) clearly place the burden of complying with the notice of intent requirements on the plaintiff. A clear and unambiguous statute requires full compliance with its provisions as written. Northern Concrete Pipe, Inc. v. Sinacola Companies-Midwest, Inc., 461 Mich. 316, 320, 603 N.W.2d 257 (1999). Accordingly, plaintiff must fulfill the preconditions of § 2912b(4) in order to maintain a medical malpractice action.

Further, nowhere does the statute provide that a defendant must object to any deficiencies in a notice of intent before the complaint is filed.5 In the absence of such a statutory requirement, we do not have the authority to create and impose an extrastatutory affirmative duty on the defendant. Omne Financial, supra. The role of the judiciary is not to engage in legislation. Tyler v. Livonia Schools, 459 Mich. 382, 392-393, n. 10, 590 N.W.2d 560 (1999). The Legislature did not require that an objection to a notice of intent must be raised before a certain stage of the litigation.

C. The Tolling Provision, M.C.L. § 600.5856

Although the Court of Appeals incorrectly held that defendants had waived their ability to challenge the sufficiency of the notice of intent by creating and inserting a waiver provision into M.C.L. § 600.2912b, M.C.L. § 600.5856 provides an additional reason why waiver is inapplicable to the present case.

The plain language of § 5856(d) clearly requires a medical malpractice plaintiff to comply with the provisions of § 2912b in order to toll the limitation period. Absent an express waiver of its right to contest the adequacy of plaintiff's notice of intent or to assert the statute of limitations as a defense, defendant cannot forfeit, or "waive," those rights until the tolling provision becomes an issue. This is because a tolling provision effectively works to negate a statute of limitations defense raised by a defendant. Thus, unless done so expressly, the only ways in which a defendant could effectively "waive" any objections to plaintiff's fulfillment of the requirements of § 5856(d) would be to fail to invoke the pertinent statute of limitations after a plaintiff files suit or to fail to object to the adequacy of the notice of intent after a plaintiff advances tolling as a response to a statute of limitations defense.

In other words, under this statute, defendant's failure to respond to plaintiff's notice does not result in a waiver of a statute of limitations defense before a suit is even filed. Accordingly, since plaintiff sought to rely on the tolling provision of § 5856(d) and that section plainly requires compliance with § 2912b, defendants cannot logically be considered to have waived their right to object to plaintiff's compliance with § 2912b before the filing of the suit.

D. The Dissent

The lynchpin of the dissent is its repeated assertion that "defendants in this case made affirmative representations that reasonably led plaintiff to believe that her notice of intent was adequate." Post at 673 (emphasis added). We agree that, if a defendant affirmatively represents to a plaintiff that it waives any objection to plaintiff's notice or expressly waives its statute of limitations defense, such representations could be binding in any subsequent litigation under this statute. However, what is noteworthy about the dissent's theory is the fact that, despite the repeated contrary assertions, not a single representation is cited, much less an affirmative representation, by any defendant that they acquiesced in the adequacy of the notices that plaintiff filed in this case. The oddity of the dissent's analysis is that it relies on the absence of representations to establish a waiver. Indeed, the dissent is ultimately reduced to admitting that the so-called waiver it relies upon must be implied from the fact that defendants failed to include a disclaimer in each of the several written requests they made of plaintiff for more information. Post at 674, n. 8.6

We agree with the dissent that a "[w]aiver requires an `intentional and voluntary relinquishment of a known right.'" Post at 672, n. 1. Carines, supra. However, as previously discussed, n 4, no such waiver occurred here. It is simply contradictory for the dissent to conclude that the failure to raise an issue in preliminary communications amounts to a waiver, while it simultaneously instructs that waiver requires an "intentional and voluntary relinquishment."

In reality, the dissent is not relying on a waiver analysis, but a forfeiture analysis. As we have defined the term, a "forfeiture" is the failure to assert a right in a timely fashion. Carines, supra. The dissent has again confused these related, but distinct, concepts of forfeiture and waiver. See, e.g., People v. Carter, 462 Mich. 206, 216, 612 N.W.2d 144 (2000).

Even if the dissent's argument is viewed as a forfeiture argument, it remains unpersuasive. This is because a forfeiture necessarily requires that there be a specific point at which the right must be asserted or be considered forfeited. As noted above, § 2912b does not require a response to the adequacy of plaintiff's notice.

Thus, the first occasion that defendant must challenge the adequacy of the notice as required by the statute is after plaintiff has filed a complaint. This duty to challenge the adequacy of the notice arises not because of the statute, but because of our court rules concerning pleading, MCR 2.111(F)(3), and summary disposition, MCR 2.116(D)(2).7

In sum, in a medical malpractice case arising under this statute, it is only when the tolling provision becomes an issue that a defendant would be compelled to contest adequacy of the notice. The Court of Appeals and the dissent argue for the extrastatutory requirement of an earlier obligation to object to the adequacy of the notice because they contend that the statute was intended to promote settlement negotiations. Whatever the merit of this policy argument, we are obligated to apply the unambiguous terms of the statute, not our policy preferences. We conclude that the Legislature not only failed to require an earlier objection, it affirmatively provided a different remedy for a defendant's failure to respond to the notice thus negating the "waiver" arguments offered by the Court of Appeals and the dissent. See n. 5.

For these reasons, regardless of whether it relies on waiver or forfeiture principles, the dissent's argument fails.

IV. Conclusion

In light of the plain language of M.C.L. § 600.5856(d), we conclude that the statute of limitations in a medical malpractice action is not tolled unless notice is given in compliance with all the provisions of M.C.L. § 600.2912b. We further conclude that M.C.L. § 600.2912b did not require defendants to object to the sufficiency of the notices of intent before the filing of the complaint.8 In addition, because M.C.L. § 600.5856(d) is a tolling provision and tolling provisions work to negate a statute of limitations defense raised by a defendant, defendants did not need to assert the defense or challenge plaintiff's compliance with M.C.L. § 600.2912b, as required by M.C.L. § 600.5856(d), until plaintiff filed suit.

Accordingly, we reverse the judgment of the Court of Appeals and, recognizing that the panel did not reach a determination regarding whether the trial court erred in concluding that plaintiff's notices of intent did not comply with § 2912b(4), we remand this matter to the Court of Appeals for further proceedings consistent with this opinion.

CORRIGAN, C.J., and WEAVER, TAYLOR, and MARKMAN, JJ., concurred with YOUNG, J.

MARILYN J. KELLY, J. (dissenting).

The majority implies that a statute must explicitly permit waiver before the waiver doctrine can operate to excuse noncompliance. Moreover, the majority seems to confuse the concept of an affirmative representation indicating waiver and an explicit statement of waiver. It seems to regard the latter as necessary in this case, but provides no authority to support that assumption. I disagree with the majority's analysis and would affirm the Court of Appeals application of the doctrine of waiver in this case.1

I would not, and do not, infer waiver from mere silence. Moreover, I do not believe that either M.C.L. § 600.2912b or M.C.L. § 600.5856(d) supports a requirement that a defendant object to alleged deficiencies in a notice of intent before the complaint is filed. Therefore, I agree with the majority's conclusion that there is no duty to challenge deficiencies before the complaint is filed.

Generally, I agree that, to begin the tolling of the M.C.L. § 600.5856(d) statute of limitations, a plaintiff must fully comply with the requirements of M.C.L. § 600.2912b. Compliance with the delivery provision of the notice statute alone is insufficient. However, I would hold that a prospective defendant can waive the specific content requirements for the notice of intent by an affirmative action.

The majority neglects to consider an important fact in this case. Representatives of defendants' insurance companies corresponded with plaintiff's counsel without complaining that there were inadequacies in the notice of intent.2 A review of the parties' numerous written communications reveals that plaintiff cooperated with defendants' requests for medical records and other personal information related to plaintiff's claim. I believe that these communications from defendants reasonably led plaintiff to believe that her notice was sufficient, thereby waiving any objections related to the adequacy of the notice.

The majority also confuses the issue by focusing on the tolling provision, M.C.L. § 600.5856(d). In order for these defendants to maintain a statute of limitations claim, they had to challenge the sufficiency of plaintiff's notice of intent. Thus, the disposition of this case turns on an analysis of the requirements of M.C.L. § 600.2912b, including whether defendants waived any challenge related to those requirements.

Defendants advance no authority in support of their contention that the doctrine of waiver cannot be applied to a statutory provision that does not explicitly include the possibility of waiver. Nor does the majority cite such authority.3 The majority relies only on the "mandatory" nature of the notice provision and the proposition that an unambiguous statute requires full compliance.4 However, I believe that the mandatory nature of the notice statute is not dispositive here, where it is undisputed that defendants had actual notice of plaintiff's intent to file suit.

Waiver is an equitable doctrine, applied judicially to avoid injustice. 28 Am. Jur. 2d, Estoppel and Waiver, § 197. As is true with the doctrine of equitable estoppel, the possibility of waiver need not be set forth in the language of a statute.5 Where a defendant makes affirmative representations implying that he has no objections to the content of a notice, we may, as a matter of equity, find his later objections waived.6

The defendants in this case made affirmative representations that reasonably led plaintiff to believe that her notice of intent was adequate. In so doing, defendants encouraged plaintiff to rely on the 182 day tolling period initiated by that notice. When plaintiff filed her complaint well within the extended limitation period,7 defendants cannot be permitted to object on statute of limitations grounds and the requirements of the notice provision. The defense was affirmatively waived by defendants' actions.

Presumably, plaintiff could have filed her malpractice claim within the statutory period of limitation but for the statutory requirement that she provide a notice of intent to file her claim. After doing so, and particularly after receiving communications from defendants' agents because of that notice, she had every reason to believe that the notice triggered the tolling provision of M.C.L. § 600.5856(d). The requirements of M.C.L. § 600.2912b are vague. Neither the statute nor related case law provides any guidance about the quantity of detail a potential plaintiff must furnish regarding the malpractice claim.8

The majority also implies that a challenge on the basis of the statute of limitations cannot be waived before the filing of suit. Again, I disagree. Where parties are engaged in settlement negotiations, for example, a potential defendant might agree to waive a statute of limitations defense to continue negotiations and avoid a claim being filed. See, e.g., Wickings v. Arctic Enterprises, Inc., 244 Mich.App. 125, 148-150, 624 N.W.2d 197 (2000).9 Should settlement negotiations fail, the affirmative representation that the defendant waived a statute of limitations defense would bar any objection when the plaintiff filed a claim outside the statutory period. Similarly, defendants' communications to plaintiff here should operate to waive the statute of limitations defense.

The effect of today's decision is to shorten the statutory period of limitation for a medical malpractice claim by more than half a year. A potential plaintiff would be well advised to file a notice of intent at least 182 days before the period expires. There is now no telling whether a notice will be deemed sufficient to trigger the tolling provision. In fact, even the plaintiff who follows a notice by inquiring whether additional information is needed risks suffering the consequence of a notice found to be technically inadequate. A plaintiff should not rely even on the formal response outlined in M.C.L. § 600.2912b(7). If the complaint were filed more than two years after the malpractice claim accrued and the notice were sufficiently flawed, the claim would still be time-barred. The Legislature could not have intended that result when it enacted M.C.L. § 600.2912b, which was designed to promote settlement.

In conclusion, I would reverse the Court of Appeals decision to the extent that it imposed a duty to object to a deficient notice of intent before a complaint is filed. However, I would affirm the application of waiver to the notice and tolling statute combination. These defendants communicated with plaintiff and investigated her claim as the notice statute contemplates, presumably in furtherance of the possibility of a settlement. The Court of Appeals recognized the unfairness of allowing them only much later to object that the notice of intent was defective because it gave insufficient information to promote pretrial investigation and settlement.

When defendants affirmatively responded to plaintiff's notice of intent, they reasonably should have expected plaintiff to understand that they had no objections to its form or content. By so doing, defendants affirmatively waived any objection premised on that notice. Because the statute of limitations objection in this case is necessarily based on an inquiry into the adequacy of the notice of intent, the objection was affirmatively waived.

MICHAEL F. CAVANAGH, J., concurred with MARILYN J. KELLY, J.