FLORENCE SHORT V DUANE WATERS HOSPITAL
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STATE OF MICHIGAN
COURT OF APPEALS
FLORENCE SHORT, Personal Representative of
the Estate of JONATHON CROSS, Deceased,
UNPUBLISHED
December 20, 2005
Plaintiff-Appellant,
V
AUDBERTO C. ANTONINI, M.D., ADDIE JO
BRISKIE, R.N., and ANITA YOUNG, R.N.,
No. 256423
Jackson Circuit Court
LC No. 03-002370-NI
Defendants-Appellees,
and
DUANE WATERS HOSPITAL
CORRECTIONAL FACILITY,
and
OAKS
Defendants.
Before: Kelly, P.J., and Meter and Davis, JJ.
DAVIS, J. (concurring).
I concur with the opinion of my colleagues because current case law would appear to
compel that analysis. I write separately because I am certain that the Legislature did not intend
such a result, and I believe this Court should not have afforded Waltz v Wyse, 469 Mich 642; 677
NW2d 813 (2004) retroactive application in Ousley v McLaren, 264 Mich App 486; 691 NW2d
817 (2004).
The cause of action in this case arose with decedent’s death on May 11, 2000. Plaintiff
received letters of appointment as decedent’s personal representative on November 3, 2000. In
the ordinary course of events, MCL 600.5805(6) provides for a two-year statute of limitations,
which would have expired on May 11, 2002. However, MCL 600.5852 provides as follows:
If a person dies before the period of limitations has run or within 30 days
after the period of limitations has run, an action which survives by law may be
commenced by the personal representative of the deceased person at any time
within 2 years after letters of authority are issued although the period of
limitations has run. But an action shall not be brought under this provision unless
the personal representative commences it within 3 years after the period of
limitations has run.
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Accordingly, plaintiff had until November 3, 2002, to commence the present action. Plaintiff
sent a notice of intent to file a medical malpractice claim to all defendants on October 1, 2002.
This notice is mandated by MCL 600.2912b as a prerequisite to filing suit. If not filed,
plaintiff’s claim would be subject to summary dismissal. Furthermore, MCL 600.2912b requires
a plaintiff to wait 182 days after filing the notice before filing a complaint. However, when
plaintiff sent the notice of intent, the limitations period provided by MCL 600.5852 had only 34
days remaining. My colleagues correctly apply Waltz, supra, to find that the limitations period
ran out and time-barred plaintiff’s claim during the mandatory 182-day waiting period.
Plaintiff did file her complaint on April 21, 2003. Presumably, plaintiff did so in reliance
on MCL 600.5856(d),1 under which “if the period of limitations would expire during the notice
period, the period of limitations is tolled for 182 days and then resumes running after the 182day period.” Burton v Reed City Hosp Corp, 471 Mich 745, 748; 691 NW2d 424 (2005).
Therefore, 182 days after October 1, 2002, or April 1, 2003, plaintiff’s remaining 34 days would
have continued to run, giving her until May 5, 2003, to timely file her complaint. Plaintiff
complied with these requirements. Nearly a year later on April 14, 2004, in Waltz, supra, our
Supreme Court stated that because MCL 600.5852 is not itself a statute of limitations, but an
exception to a statute of limitations, the notice tolling provision does not apply. Waltz, supra at
648-651. We are bound by the rule of Waltz and the retroactive application thereof. Ousley,
supra at 493-495. Accordingly, plaintiff’s suit was effectively barred 33 days after issuing the
letter of intent and five months before MCL 600.2912b(6) would allow for the filing of a
complaint.
I would not follow the retroactive application of Waltz by Ousley if not constrained to do
so. Instead, I believe that the standards set forth by our Supreme Court in Pohutski v City of
Allen Park, 465 Mich 675, 696; 641 NW2d 219 (2002), “where injustice might result from full
retroactivity,” obligate us to apply Waltz prospectively only. Our Supreme Court noted three
factors to be considered: “(1) the purpose to be served by the new rule, (2) the extent of reliance
on the old rule, and (3) the effect of retroactivity on the administration of justice.” Id. As in that
case, Waltz was intended to correct what our Supreme Court believed to be a misinterpretation of
a statute. Pohutski, supra at 697; Waltz, supra at 653-655. Also as in Pohutski, there has been
extensive reliance on the pre-Waltz interpretation of the statutes by plaintiffs who reasonably
believed they had two years in which to commence their causes of action. Finally, Pohutski was
also based on the fact that retroactive application would deny plaintiffs in cases currently
pending relief to which they reasonably believed they were entitled, and “they would become a
distinct class of litigants denied relief because of an unfortunate circumstance of timing.”
Pohutski, supra at 698-699. In Pohutski, our Supreme Court concluded that retroactive
application was inappropriate. This Court in Ousley should have reached the same conclusion.2
1
Slightly reworded and moved to MCL 600.5856(c) by 2004 PA 87, which became effective
April 22, 2004.
2
This Court’s retroactivity analysis in that case apparently relied not on Pohutski but on earlier
decisions. See Ousley v McLaren, 264 Mich App 486, nn 12-14, 26; 691 NW2d 817 (2004).
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It is well-established that statutes of limitations serve an important public policy of
protecting the rights of both plaintiffs and defendants by effecting a compromise. They are
intended to satisfy defendants’ needs for certainty and freedom from stale claims. They are
simultaneously intended to afford plaintiffs a reasonable time in which to investigate and
commence their claims. Herweyer v Clark Hwy Services, Inc, 455 Mich 14, 19, 22-24; 564
NW2d 857 (1997), overruled in part on other grounds Rory v Continental Ins Co, 473 Mich 457,
476-478, 486-489; 703 NW2d 23 (2005). Statutes of limitations presumptively establish the
Legislature’s determination of what that reasonable time is. Lothian v City of Detroit, 414 Mich
160, 165-166; 324 NW2d 9 (1982). The Legislature has clearly deemed two years to be a
reasonable time for an injured plaintiff to bring a medical malpractice action. MCL 600.5805(6).
Statutes serving a common purpose should be read together and harmonized. Lindsey v
Harper Hosp, 455 Mich 56, 65; 564 NW2d 861 (1997). Compliance with the notice provision of
MCL 600.6912b means that a plaintiff must decide whether to bring an action 182 days before
the action can formally be “commenced.” As a practical matter, that reduces the effective
limitations period for a plaintiff from two years to a year and a half. The logical significance of
MCL 600.5856(d) is that the Legislature was aware that the notice period reduces the time
available to a plaintiff by 182 days, and it intended that a claim be timely as long as the
defendant was notified of the impending claim within two years. This view logically serves the
dual purposes of a statute of limitations: it affords plaintiffs a reasonable time in which to
research and bring their claims, thereby ensuring that meritorious claims are not needlessly
sacrificed while baseless claims are not needlessly brought, and it affords defendants continued
timely notice of claims against them, thereby ensuring that they are not subject to stale claims or
time-related difficulties in defending against them.
It is not reasonable that the Legislature would apply different reasoning to claims of
medical malpractice resulting in death and requiring appointment of a personal representative.
Investigating such a claim can be anticipated to be more difficult and time consuming for a
number of immediately apparent reasons: the deceased is unavailable to tell his or her story, the
immediate aftermath is likely traumatic and confusing to all parties involved, and the judicial act
of appointing a personal representative requires time even in the best of circumstances.
Affording the personal representative less time in which to research the validity of such a claim
is counterintuitive to the plain reading of MCL 600.5852, which appears to be a legislative
acknowledgement of these dynamics and to be a special-purpose statute of limitations applicable
to personal representatives. The statute would seem intended to give personal representatives the
same time for preparation from the date of their appointments as living plaintiffs would have
from the date of their injuries. There is no apparent additional prejudice to defendants, who
remain entitled to advance notice of a pending claim and are additionally protected by the
Legislature’s provision of a clear statute of repose. See City of Novi v Woodson, 251 Mich App
614, 628; 651 NW2d 448 (2002).
This view would appear consistent with our Supreme Court’s interpretation of MCL
600.5852 as “a saving provision designed ‘to preserve actions that survive death in order that the
representative of the estate may have a reasonable time to pursue such actions.’” Waltz, supra at
655, quoting Lindsey, supra at 66 (emphasis in original). As discussed, our Legislature
established two years as a reasonable time. The notice-tolling provision indicates that our
Legislature understood the functional effect of the notice provision, and it ensured that plaintiffs
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would remain entitled to a reasonable time in which to prepare their cases. It seems unlikely the
Legislature would have intended to apply that entitlement where a plaintiff has not been fatally
injured, but to refuse that entitlement if the alleged malpractice happens to be fatal. Retroactive
application of Waltz compounded the problem.
The anomaly that exists in these circumstances may be something that our Supreme
Court may wish to revisit and our Legislature may wish to reconsider.
/s/ Alton T. Davis
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