ALISA ASBURY V SINAI HOSP OF GREATER DETROIT
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STATE OF MICHIGAN
COURT OF APPEALS
ALISA ASBURY,
UNPUBLISHED
February 22, 2007
Plaintiff-Appellant,
v
No. 261533
Wayne Circuit Court
LC No. 03-337531-NH
SINAI HOSPITAL OF GREATER DETROIT,
Defendant-Appellee.
Before: O’Connell, P.J., and Saad and Talbot, JJ.
PER CURIAM.
In this medical malpractice action, plaintiff appeals as of right from a circuit court order
granting defendant’s motion for summary disposition pursuant to MCR 2.116(C)(7) (statute of
limitations). We affirm.
Plaintiff contends that the circuit court erred by granting summary disposition on the
basis of its retroactive application of Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004), to this
case.
This Court reviews de novo a circuit court’s summary disposition ruling. Beaudrie v
Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001).
Under MCR 2.116(C)(7), summary disposition is proper when a claim is
barred by the statute of limitations. In determining whether summary disposition
was properly granted under MCR 2.116(C)(7), this Court “consider(s) all
documentary evidence submitted by the parties, accepting as true the contents of
the complaint unless affidavits or other appropriate documents specifically
contradict them.” [Waltz, supra at 647-648, quoting Fane v Detroit Library
Comm, 465 Mich 68, 74; 631 NW2d 678 (2001).]
“Whether a period of limitation applies to preclude a party’s pursuit of an action constitutes a
question of law that [an appellate court] review[s] de novo.” Detroit v 19675 Hasse, 258 Mich
App 438, 444; 671 NW2d 150 (2003). This Court also reviews de novo issues of statutory
construction. Bloomfield Twp v Oakland Co Clerk, 253 Mich App 1, 9; 654 NW2d 610 (2002).
Plaintiff filed this action on November 12, 2003, alleging that defendant’s agents and
employees negligently provided care during her birth on May 16, 1984. In 1984, as now, a
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medical malpractice plaintiff had two years from the date the cause of action accrued in which to
file suit. MCL 600.5805(4).1 Likewise in 1984, the Legislature provided that a malpractice
claim against a
hospital, licensed health care facility, [or] employee or agent of a hospital or
licensed health care facility who is engaging in or otherwise assisting in medical
care and treatment . . . accrues at the time that person discontinues treating or
otherwise serving the plaintiff in a professional or pseudoprofessional capacity as
to the matters out of which the claim for malpractice arose, regardless of the time
the plaintiff discovers or otherwise has knowledge of the claim. [MCL
600.5838(1) (emphasis added).]
Because the complaint avers that defendant’s acts of malpractice related to plaintiff’s birth
occurred between May 16, 1984 and June 22, 1984, when defendant discharged plaintiff,
plaintiff’s medical malpractice claim accrued by June 22, 1984. Consequently, the applicable
two-year period of limitation in MCL 600.5805(4) extended through June 22, 1986.
In 1984 when the infant plaintiff’s claim accrued, however, the Legislature afforded
minors additional time in which to pursue legal actions. The version of MCL 600.5851 in effect
when plaintiff’s claim accrued provided, in relevant part, as follows:
(1)
If the person first entitled to make an entry or bring an action is
under 18 years of age, insane or imprisoned at the time his claim accrues, he or
those claiming under him shall have 1 year after his disability is removed through
death or otherwise, to make the entry or bring the action although the period of
limitations has run. This section does not lessen the time provided for in section
5852.
This Court has described MCL 600.5851(1) as follows:
Some published opinions of this Court in which the issue we face was not
raised have unfortunately referred to § 5851 as a provision “which tolls the statute
of limitations.” . . . We believe that this generalization is incorrect; perhaps a
more accurate description of § 5851 is found in the statute itself—a year of grace.
Section 5851 does not expressly provide for the tolling of the general
statute of limitations. Rather, it allows disabled plaintiffs additional, separate
protection from the bar of the statute of limitations, protection that is independent
of the running of the statute. By its terms, § 5851 allows plaintiffs under certain
disabilities to bring an action “1 year after the disability is removed . . . although
1
This opinion refers to the malpractice period of limitation, MCL 600.5805(4), and the
malpractice accrual statute, MCL 600.5838, in effect in 1984, because “[t]he pertinent statute of
limitations is the one in effect when the plaintiff’s cause of action arose.” Casey v Henry Ford
Health Sys, 235 Mich App 449, 451 n 1; 597 NW2d 840 (1999) (internal quotation omitted).
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the period of limitations has run.” The clear meaning of the emphasized language
is that § 5851 does not toll the running of the statute of limitations, but instead
exempts certain claims from the bar of the statute. . . . [Honig v Liddy, 199 Mich
App 1, 3-4; 500 NW2d 745 (1993) (citations omitted; emphasis in original).]
See also Vance v Henry Ford Health Sys, 272 Mich App 426; 726 NW2d 78 (2006).
Considering that plaintiff was born on May 16, 1984, under § 5851(1) her grace period
for filing this action extended through May 16, 2003, her nineteenth birthday, despite that the
two-year period of limitation in MCL 600.5805(4) had expired. The parties dispute whether
plaintiff’s April 8, 2003, notice of her intent to sue tolled the applicable period for filing this
action.
Before a plaintiff may commence a medical malpractice action, she must “give[] the
health professional or health facility written notice under this section not less than 182 days
before the action is commenced.” MCL 600.2912b(1).2 According to MCL 600.5856(d):
The statutes of limitations or repose are tolled:
***
(d)
If, during the applicable notice period under section 2912b, a claim
would be barred by the statute of limitations or repose, for not longer than a
number of days equal to the number of days in the applicable notice period after
the date notice is given in compliance with section 2912b. [Emphasis added,
footnote omitted.]3
The Legislature enacted the notice of intent tolling provision within 1993 PA 78.
Morrison v Dickinson, 217 Mich App 308, 311-312; 551 NW2d 449 (1996). In Morrison, id. at
311-313, this Court examined in detail the legislation that enacted MCL 600.2912b and MCL
600.5856(d), explaining in relevant part as follows:
The Legislature made a number of changes to the Revised Judicature Act
when it enacted 1993 PA 78, which became effective on April 1, 1994, including
three provisions that apply to this case. First, the Legislature adopted a notice
provision, providing as follows: . . . [quoting MCL 600.2912b(1)]
***
2
Although § 2912b did not exist in 1984, when plaintiff’s cause of action accrued, the
Legislature enacted it in 1993 PA 78, which became effective April 1 1994, well before plaintiff
commenced this medical malpractice action.
3
After plaintiff gave notice in April 2003, § 5856(d) became § 5856(c) and was reworded in a
manner that does not alter the subsection’s meaning.
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Second, the Legislature permitted a tolling of the period of limitation
during the 182-day notice period, stating that the applicable period of limitation is
tolled . . . . [quoting MCL 600.5856(d)]
***
The third relevant aspect of 1993 PA 78—the pertinent effective dates and
the chronological parameters defining to what causes of action the amendments
applied—was not codified. 1993 PA 78, § 4 provides as follows:
“(1) Section [ ] . . . 5856 [referring to the tolling provision] of Act No.
236 of the Public Acts of 1961, as amended by this amendatory act, do[es] not
apply to causes of action arising before October 1, 1993.
***
(4)
Section [ ] 2912b [referring to the notice provision] . . . of Act No.
236 of the Public Acts of 1961, as amended by this amendatory act, [applies] to
cases filed on or after October 1, 1993.”
***
In summary, . . . . [f]or causes of action filed on or after October 1, 1993,
a plaintiff must provide 182 days’ written notice before commencing suit. 1993
PA 78, § 4(4), MCL 600.2912b . . . . If a cause of action would be barred because
of the 182-day notice provision, the limitation period may be tolled for 182 days
after notice is given. MCL 600.5856(d) . . . . However, this tolling provision
does not apply to causes of action arising before October 1, 1993. See 1993 PA
78, § 4(1). [Emphasis in original.]
In this case, plaintiff cannot invoke the notice tolling provision in MCL 600.5856(d) because (1)
her cause of action arose in June 1984, and (2) “the plain language of 1993 PA 78, § 4(1)”
dictates that MCL 600.5856(d) does “not apply to causes of action arising before October 1,
1993.” Morrison, supra at 314 (emphasis in original).
We reject plaintiff’s suggestion that the Court’s holding in Morrison, which applied MCL
600.5856(d) to a cause of action that had arisen before October 1, 1993, should apply to this
case. This Court explained as follows the dilemma faced by the plaintiffs in Morrison, supra at
313-315:
Applying the statutory scheme outlined above illustrates the Morrisons’
dilemma, a dilemma that stems primarily from the Legislature’s consideration of
the date of filing significant in 1993 PA 78, § 4(4), and its consideration of the
date the cause of action arises as significant in 1993 PA 78, § 4(1). The instant
plaintiffs’ cause of action arose on May 21, 1992. Pursuant to the applicable twoyear statute of limitations, the Morrisons were permitted to file their complaint on
or before May 21, 1994. . . . . Under MCL 600.2912b . . . , which became
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effective on April 1, 1994, the Morrisons were required to give 182 days’ notice
to defendants before filing their complaint.
The difficulty in the present case arises, however, from the fact that the
tolling provision of MCL 600.5856(d) . . . does not apply to plaintiffs. As stated
above, their cause of action arose on May 21, 1992, that is, before October 1,
1993. . . .
1993 PA 78 became effective on April 1, 1994, but by then the Morrisons
could not possibly satisfy all the requirements of 1993 PA 78 without running
afoul of the notice requirement of MCL 600.2912b . . . and the two-year limitation
period of MCL 600.5805(4) . . . .
In short, though the Morrisons’ cause of action had previously accrued,
because of legislative amendment of the pertinent statutes, the Morrisons’ claim,
as well as the actions of all those potential plaintiffs similarly situated, was
vitiated. Implementation of the notice requirement effectively abrogated the
Morrisons’ claim despite the fact that it had already vested.
This Court concluded that “1993 PA 78, § 4(1) may not be enforced in cases such as the present
matter where enforcement would vitiate an accrued medical malpractice claim without providing
the potential plaintiff the benefit of the 182-day tolling provision.” Morrison, supra at 318.
This case does not involve procedural facts substantially similar to those addressed in
Morrison. As in Morrison, the notice provision of MCL 600.2912b applies in this case because
plaintiff filed this action after April 1, 1994, but the notice tolling provision in MCL 600.5856(d)
does not apply because plaintiff’s cause of action arose well before October 1, 1993. But unlike
Morrison, the difference in the effective dates of the 1993 amendments to MCL 600.2912b and
MCL 600.5856(d) does not effectively vitiate plaintiff’s previously accrued cause of action. By
virtue of the minority saving provision in effect in 1984, MCL 600.5851(1), after the accrual of
plaintiff’s claim in June 1984, she had from April 1, 1994, the effective date of MCL 600.2912b,
through November 16, 2002, a period approximately 182 days before the minority grace period
expired on plaintiff’s nineteenth birthday (May 16, 2003), to comply with the notice of intent
requirement and thereafter timely commence her action within the minority grace period.
Because plaintiff had approximately 8-1/2 years, between the enactment of MCL 600.2912b in
April 1994 and November 2002, in which to give the notice of intent and still timely file suit
against defendant, whereas the plaintiffs in Morrison had no opportunity to do so, we conclude
that the Court’s holding in Morrison has no application to the very different circumstances of
this case.
Because plaintiff’s giving of notice of her intent to sue in April 2003 did not toll the
minority saving period pursuant to MCL 600.5856(d), and because plaintiff filed suit in
November 2003, after the minority saving period had expired in May 2003, defendant was
entitled to summary disposition pursuant to MCR 2.116(C)(7), irrespective of the circuit court’s
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basis for granting the motion. See FACE Trading, Inc v Dep’t of Consumer & Industry Services,
270 Mich App 653, 678; 717 NW2d 377 (2006) (observing that this Court will not reverse when
the trial court reaches a correct result for the wrong reason).
Affirmed.
/s/ Peter D. O’Connell
/s/ Henry William Saad
/s/ Michael J. Talbot
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