SUZANNE VERBRUGGHE V SELECT SPECIALTY HOSPITAL
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STATE OF MICHIGAN
COURT OF APPEALS
SUZANNE VERBRUGGHE, Personal
Representative of the Estate of GEORGE
VERBRUGGHE,
UNPUBLISHED
December 9, 2010
Plaintiff-Appellant,
v
SELECT SPECIALTY HOSPITAL-MACOMB
COUNTY, INC.,
No. 287888
Macomb Circuit Court
LC No. 2004-002665-NH
Defendant-Appellee,
and
MARIUS LAURINAITIS, M.D.,
Defendant.
Before: GLEICHER, P.J., and O’CONNELL and WILDER, JJ.
PER CURIAM.
This medical malpractice case presents another installment in the litigation firestorm
ignited by our Supreme Court’s decision in Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004).
Ward v Siano, 272 Mich App 715, 721; 730 NW2d 1 (2006) (O’Connell, J., concurring), rev’d
480 Mich 979 (2007). Plaintiff appeals by leave granted a circuit court order denying her motion
for relief from judgment. Because we are bound by this Court’s recent conflict panel decision in
King v McPherson Hosp, ___ Mich App ___; ___ NW2d ___ (Docket No. 284436, issued
10/19/2010), we affirm.
In Waltz, 469 Mich 642, the Supreme Court held that MCL 600.5856(c)1 did not operate
to toll the wrongful death savings provision set forth in MCL 600.5852.2 A “flurry” of litigation
1
According to MCL 600.5856(c):
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followed this ruling. Ward, 272 Mich App at 729 n 8. On the basis of our Supreme Court’s
decision in Waltz, this Court found appropriate the summary dismissal of more than 100 cases.3
The plaintiffs in some of these cases filed applications for leave to appeal in the Supreme Court,
which issued three separate orders emphasizing that its decision in Waltz demanded full
retroactive application. Wyatt v Oakwood Hosp & Med Ctrs, 472 Mich 929; 697 NW2d 528
(2005), reh den 474 Mich 913 (2005), rev’d in part after remand 480 Mich 1073 (2008); Evans v
Hallal, 472 Mich 929; 697 NW2d 526 (2005); Forsyth v Hopper, 472 Mich 929; 697 NW2d 526
(2005), rev’d after remand 480 Mich 979 (2007). In reliance on these orders plainly manifesting
the Supreme Court’s unwillingness to reconsider Waltz, many of the plaintiffs in dismissed cases
elected not to pursue applications for leave to appeal.
On November 28, 2007, the Supreme Court entered the following order in Mullins v St
Joseph Mercy Hosp, 480 Mich 948; 741 NW2d 300 (2007):
On order of the Court, leave to appeal having been granted, 477 Mich
1066; 728 NW2d 871 (2007), and the briefs and oral argument of the parties
having been considered by the Court, we hereby REVERSE the July 11, 2006
judgment of the Court of Appeals. MCR 7.302(G)(1). We conclude that this
Court’s decision in Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004), does not
apply to any causes of action filed after Omelenchuk v City of Warren, 461 Mich
567; 609 NW2d 177 (2000), was decided in which the savings period expired, i.e.,
two years had elapsed since the personal representative was appointed, sometime
between the date that Omelenchuk was decided and within 182 days after Waltz
was decided. All other causes of action are controlled by Waltz. In the instant
case, because the plaintiff filed this action after Omelenchuk was decided and the
The statutes of limitations or repose are tolled in any of the following
circumstances . . .
At the time notice is given in compliance with the applicable notice period
under section 2912b, if during that period a claim would be barred by the statute
of limitations or repose; but in this case, the statute is tolled not longer than the
number of days equal to the number of days remaining in the applicable notice
period after the date notice is given.
2
In its entirety, MCL 600.5852 reads:
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.
3
A Westlaw search reveals that more than 100 cases in this Court have cited the central holding
in Waltz.
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savings period expired between the date that Omelenchuk was decided and within
182 days after Waltz was decided, Waltz is not applicable. Accordingly, we
REMAND this case to the Washtenaw Circuit Court for entry of an order denying
the defendants’ motion for summary disposition and for further proceedings not
inconsistent with this order.
After the issuance of the order in Mullins, the plaintiffs in several cases dismissed in light of
Waltz filed circuit court motions seeking to set aside the judgments against them. These
plaintiffs had not filed applications for leave to appeal after losing their cases in this Court. The
post-Mullins plaintiffs generally contended that the Supreme Court’s order in Mullins limiting
the retroactivity of Waltz supplied a justification for relief from judgment under MCR
2.612(C)(1)(f).
In Kidder v Ptacin, 284 Mich App 166, 171; 771 NW2d 806 (2009), and Farley v Carp,
287 Mich App 1, 7-8; 782 NW2d 508 (2010), this Court rejected that MCR 2.612(C)(1)(f)
offered an avenue of relief to those plaintiffs who had not sought leave to appeal a Waltz-based
ruling of dismissal rendered by this Court. Later, in King v McPherson Hosp, 287 Mich App
___; ___ NW2d ___ (Docket No. 284436, issued April 27, 2010) (King I), slip op at 9, three
judges of this Court concluded that the Mullins order “established without equivocation a class of
medical malpractice claimants entitled to relief from the retroactive application of Waltz.” The
Court in King I further observed, “The Supreme Court in its use of the words, ‘any causes of
action’ did not limit the palliative nature of its [Mullins] order to only those cases still pending.
And it is incongruous to impose the use of a finality rule or law of the case rule to prohibit the
utilization of the discretion provided in MCR 2.612(C)(1)(f), to avoid the mandate of the
[Mullins] order.” Id. at 10. Because Farley, 287 Mich App 1, operated as binding precedent to
the contrary, the Court in King I called for a conflict panel vote pursuant to MCR 7.215(J)(3)(a).
A majority of this Court’s judges agreed to convene a conflict panel.
On October 19, 2010, the conflict panel held that the prior panel’s reasoning “cannot be
squared with a clear and unequivocal rule” that “new legal principles, even when applied
retroactively, do not apply to cases already closed.” King, ___ Mich App ___ (Docket No.
284436, issued 10/19/2010) (King II), slip op at 3 (internal quotation omitted). Accordingly, the
conflict panel held that “the partial retroactive application of Waltz that was granted in Mullins
could not apply” to a closed case. Id. at 4.
We remain unable to distinguish the facts of the instant case from those presented in King
II. In plaintiff’s brief on appeal, she acknowledges that after this Court affirmed the dismissal of
her case in Verbrugghe v Select Specialty Hosp-Macomb Co, Inc, unpublished opinion per
curiam of the Court of Appeals, issued March 23, 2006 (Docket No. 262748), she “failed to file
an Application for Leave to Appeal with the Supreme Court.” Under these circumstances, King
II constrains us to affirm the circuit court’s decision to deny plaintiff’s motion for relief from
judgment.
Plaintiff also contends that the denial of her motion for relief from judgment violates the
Due Process and Equal Protection Clauses of the federal and Michigan constitutions. In granting
leave to appeal, this Court limited its review to those issues raised in the application, and plaintiff
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did not raise any constitutional issues in her application for leave to appeal to this Court. MCR
7.205(D)(4). Consequently, we decline to review plaintiff’s constitutional claims.
Because plaintiff’s appellate claims were not “devoid of arguable legal merit,” MCR
2.625(A)(2); MCL 600.2591(3)(a)(iii), we deny Select Specialty’s request for costs and
sanctions.
Affirmed.
/s/ Elizabeth L. Gleicher
/s/ Peter D. O'Connell
/s/ Kurtis T. Wilder
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