KATHLEEN KLEIN V LAKE ORION NURSING CENTER
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STATE OF MICHIGAN
COURT OF APPEALS
KATHLEEN KLEIN, Personal Representative of
the Estate of NELSON KLEIN, Deceased,
UNPUBLISHED
February 8, 2007
Plaintiff-Appellant,
v
LAKE ORION NURSING CENTER, G. COOK,
and G. P. HITCHCOCK,
No. 266663
Oakland Circuit Court
LC No. 2004-061842-NH
Defendants-Appellees.
Before: Sawyer, P.J., and Fitzgerald and Donofrio, JJ.
FITGERALD, J. (concurring).
I concur with the majority opinion because this Court is bound to follow Waltz v Wyse,
469 Mich 642; 677 NW2d 813 (2004), which this Court has held applies retroactively in all
cases, Mullins v St. Joseph Mercy Hosp, 271 Mich App 503, 509; 722 NW2d 666 (2006), and
because this Court is bound to follow Ward v Siano, ___ Mich App ___; ___ NW2d ___ (Docket
No. 265599, issued November 14, 2006), which rejected the proposition that “a wrongful death
plaintiff may rely upon equitable tolling to escape the retroactive effect of the Waltz decision.”
Ward, supra at slip op pp 1 – 3.
However, I agree with Judge O’Connell’s partial dissenting opinion in Turscan v Health
Care & Retirement Corporation of America, unpublished opinion per curiam of the Court of
Appeals, Docket No. 261980 (issued January 11, 2007), slip op pp 1 – 2:
[F]or the reasons stated by Judge Murray in Verbrugghe v Select Spec Hosp, 270
Mich App 383, 389; 715 NW2d 72 (2006), I conclude that McLean v McElhaney,
269 Mich App 196; 711 NW2d 775 (2005), “provides us no useful guidance.” As
Judge Murray did, I would apply Eggleston v Bio-Medical Applications of
Detroit, Inc, 468 Mich 29; 658 NW2d 139 (2003), to the facts of this case.1
1
I note that Bryant v Oakpointe Villa, 471 Mich 411, 432; 684 NW2d 864 (2004), may in fact
control the outcome of all these cases (equitable tolling applies to MCL 600.5852 where the court
determines “understandable confusion” exists).
/s/ E. Thomas Fitzgerald
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