KEITH W MAYBERRY V GENERAL ORTHOPEDICS PC
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Michigan Supreme Court
Lansing, Michigan
Opinion
Chief Justice:
Justices:
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
FILED OCTOBER 4, 2005
KEITH W. MAYBERRY and JOANNA
MAYBERRY,
Plaintiffs-Appellants,
v
No. 126136
GENERAL ORTHOPEDICS, P.C., and
WILLIAM H. KOHEN, M.D.,
Defendants-Appellees.
_______________________________
PER CURIAM.
We are presented with the question whether a second
notice of intent to sue for medical malpractice tolls the
period of limitations when an earlier notice was sent with
more than 182 days remaining in the limitations period.
hold that it does.
We
In Omelenchuk v City of Warren,1 we held
that a notice of intent to sue for medical malpractice,
filed with fewer than 182 days remaining in the limitations
1
461 Mich 567, 574-575; 609 NW2d 177 (2000), overruled
in part on other grounds Waltz v Wyse, 469 Mich 642, 655;
677 NW2d 813 (2004).
period,
initiates
600.5856(d).2
a
the
182-day
tolling
period
of
MCL
This case takes the next step, asking whether
plaintiff,
sufficiently
who
filed
early
in
a
notice
the
of
intent
limitations
to
that
period
sue
no
tolling began, can send a second notice of intent to sue to
a
defendant
with
limitations
fewer
than
182
and
rely
on
period
initiate tolling under § 5856(d).
prohibition
addition
in
of
MCL
600.2912b(6)
successive
182-day
days
remaining
that
second
in
the
notice
to
Or does this violate the
against
“the
periods”
tacking
after
or
initial
notice is given to a defendant?
We conclude that a second notice of intent to sue,
sent with fewer than 182 days remaining in the limitations
period, can initiate tolling under § 5856(d) as long as the
first
notice
tolling.
giving
of
Section
presuit
intent
to
sue
not
initiate
such
prohibits
a
plaintiff
from
defendant
multiple
2912b(6)
notice
to
a
did
times
in
order to initiate multiple tolling periods that repeatedly
extend the period of limitations.
This did not occur here.
Instead, plaintiffs filed only one notice of intent to sue
2
We note that recent amendments of § 5856 caused §
5856(d) to be redesignated as § 5856(c).
For the sake of
clarity, in this opinion, we refer to the statute in effect
at the time of the lower court proceedings.
2
that initiated a tolling period.
Because plaintiffs filed
their claims against both defendants within the limitations
period, as tolled by § 5856(d), we reverse the judgment of
the Court of Appeals and remand this case to the trial
court for further proceedings consistent with this opinion.
I.
FACTUAL BACKGROUND
Plaintiffs claim that Dr. William H. Kohen negligently
operated on Keith Mayberry’s wrist on November 22, 1999.
Among
other
negligently
things,
cut
a
plaintiffs
nerve,
allege
resulting
in
that
Dr.
Keith
Kohen
Mayberry’s
losing at least some of the use of his wrist.
The parties
agree
accrued
that
November
plaintiffs’
22,
1999.
malpractice
Accordingly,
in
claim
the
absence
of
on
any
tolling, the two-year period of limitations applicable to
medical
malpractice
actions,
MCL
600.5805(6),
would
have
expired on November 22, 2001.
On June 21, 2000, plaintiffs mailed to Dr. Kohen a
notice of intent to sue.
plaintiff
who
intends
lawsuit.
MCL 600.2912b.
This notice is required of a
to
file
a
medical
malpractice
A plaintiff generally may not
file a medical malpractice complaint any earlier than 182
days after this notice has been given, although a complaint
may
be
filed
after
154
days
if
the
defendant
does
not
respond to the notice or even sooner if the defendant gives
3
notice that it will not settle.
MCL 600.2912b(1),(8), and
(9).
Plaintiffs mailed a second notice of intent to sue on
October
12,
2001—approximately
limitations period expired.
one
month
before
the
This notice again named Dr.
Kohen, and set forth additional allegations relating to his
treatment
defendant,
of
Keith
Dr.
Mayberry.
Kohen’s
Orthopedics, P.C.
It
professional
also
added
corporation,
a
new
General
Plaintiffs then filed their complaint
against both defendants on March 19, 2002, 158 days after
the second notice of intent to sue was mailed.3
Defendants
arguing
that
filed
a
motion
plaintiffs’
for
complaint
limitations period expired.
summary
was
disposition,
filed
after
the
Plaintiffs responded that the
182-day tolling period authorized by § 5856(d) extended the
limitations
period,
and
that
March 19, 2002, was timely.4
their
complaint,
filed
on
The trial court determined
3
Plaintiffs asserted in the trial court that they were
obligated to wait only 154 days before bringing suit, as
opposed to 182 days, because defendants failed to respond
to the notice of intent to sue.
See MCL 600.2912d(8).
Defendants have not challenged plaintiffs’ assertion in
this Court, and we do not address this issue, which was not
raised on appeal.
4
If the limitations period would expire during the
notice period, the period is tolled for the number of days
(continued…)
4
that § 5856(d) did not apply in this case because only
plaintiffs’ first notice of intent to sue was eligible to
toll
the
motion.
limitations
period,
and
it
granted
defendants’
The Court of Appeals affirmed.5
Plaintiffs seek leave to appeal in this Court.
ordered
oral
argument
on
the
application,
471
Mich
We
931
(2004), and we now reverse.
II.
STANDARD OF REVIEW
We review de novo a trial court’s grant of summary
disposition based on a statute of limitations.
Waltz v
Wyse,
(2004).
469
Mich
642,
647-648;
677
NW2d
813
Questions of statutory interpretation are also reviewed de
novo.
Burton v Reed City Hosp Corp, 471 Mich 745, 751; 691
NW2d 424 (2005).
III.
As
we
have
DISCUSSION
previously
explained,
if
the
mandatory
notice of intent to sue is given in such a manner that the
period
of
limitations
would
expire
during
the
182-day
notice period, § 5856(d) operates to toll the limitations
(continued…)
in the notice period.
MCL 600.5856(d); Omelenchuk, supra
at 574-575.
By our count, if the limitations period was
tolled for 182 days, plaintiffs had until May 23, 2002, to
file their complaint.
5
Unpublished memorandum opinion of the Court
Appeals, issued February 17, 2004 (Docket No. 244162).
5
of
period
for
182
days
from
the
date
notice
is
given.
Omelenchuk, supra at 575.6
But we have not addressed how a plaintiff’s decision
to send a party multiple notices of intent to sue affects
tolling under § 5856(d).
a
party,
the
otherwise
When multiple notices are sent to
straightforward
application
of
§
5856(d) may be affected by MCL 600.2912b(6), which states:
After the initial notice is given to a
health professional or health facility under this
section, the tacking or addition of successive
182-day periods is not allowed, irrespective of
how many additional notices are subsequently
filed for that claim and irrespective of the
number
of
health
professionals
or
health
facilities notified.
The Court of Appeals considered the interplay between
§ 5856(d) and § 2912b(6) in Ashby v Byrnes, 251 Mich App
537, 544-545; 651 NW2d 922 (2002), a decision relied on by
the Court of Appeals in the instant case.
6
In Ashby, as
MCL 600.5856 provided, in pertinent part:
The
tolled:
statutes
of
limitations
or
repose
are
* * *
(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 days equal to the number of
days in the applicable notice period after the
date notice is given in compliance with section
2912b.
6
here, the plaintiffs mailed a second notice of intent to
sue within the last 182 days of the limitations period.
The plaintiffs argued that this second notice of intent to
sue
initiated
complaint
tolling
was
disagreed,
timely
concluding
under
§
5856(d),
filed.
that
The
“only
and
that
Court
their
Appeals
initial
‘the
of
notice’
results in a tolling of the limitation period ‘irrespective
of how many additional notices are subsequently filed.’”
Ashby, supra at 545.
This is true, the Court concluded,
even if the first notice of intent to sue did not initiate
tolling
under
§
5856(d)
because
§
2912b(6)
“nowhere
suggests that this limiting language applies only when the
first
notice
filing
tolled
the
period
of
limitation.”
Ashby, supra at 545.
We respectfully disagree.
“the
tacking
. . . .”
or
addition
Section 2912b(6) prohibits
of
successive
182-day
periods
When considering the meaning of this language,
Ashby failed to recognize that “tacking” is a legal term of
art, and that § 2912b(6) must be interpreted in a manner
that is consistent with the acquired meaning of the word
“tacking.”
such
as
meaning
See MCL 8.3a (“technical words and phrases, and
may
in
have
the
acquired
law,
shall
a
be
peculiar
construed
and
and
appropriate
understood
according to such peculiar and appropriate meaning”), and
7
People v Law, 459 Mich 419, 425 n 8; 591 NW2d 20 (1999).
Indeed, tacking is a familiar concept in cases involving
statutes of limitations.
time
periods
It generally refers to adding
together
to
affect
the
running
of
a
limitations period.7
With
this
definition
in
mind,
we
find
that
the
reference to “tacking” in § 2912b(6) is to the tacking of
limitations
periods
pursuant
§
to
that
5856(d);
have
the
actually
Legislature’s
been
initiated
concern
about
tacking successive 182-day periods is meaningful only to
the extent that such an action affects the expiration of
the limitations period.
As a result, the prohibition in §
2912b(6) against tacking only precludes a plaintiff from
enjoying the benefit of multiple tolling periods.
It does
not, as Ashby held, restrict the application of the tolling
provision in § 5856(d) to the initial notice of intent to
sue if the tolling provision in § 5856(d) did not even
7
See Black’s Law Dictionary (8th ed), p
that tacking can be a reference to the
consecutive periods of possession to satisfy
limitations period for adverse possession; see
Law Dictionary (6th ed), p 1452, noting that
also be used “to avoid the bar of a
limitations.”
8
1492, noting
joining of
a statutory
also Black’s
tacking can
statute of
apply to the initial notice of intent to sue.8
Stated
otherwise, if the initial notice did not toll the statute
of
limitations
period,
there
would
be
no
problem
of
“successive 182-day periods” that § 2912b(6) prohibits.
Applying this analysis to the undisputed facts shows
that
plaintiffs’
claims
against
both
General
Orthopedics
and Dr. Kohen were filed within the limitations period.
Plaintiffs gave only one notice to General Orthopedics, on
October 12, 2001, 42 days before the period of limitations
expired.
Because
only
one
notice
was
given,
the
prohibition in § 2912b(6) against “the tacking or addition
of
successive
182-day
periods”
does
not
apply.
The
timeliness of this claim depends only on whether tolling
under § 5856(d) was initiated.
clear,
this
initial
notice
And, as Omelenchuk makes
initiated
tolling
under
§ 5856(d) because it was filed within the last 182 days of
the
limitations
limitations
for
period.
As
plaintiffs’
a
result,
claim
the
against
period
of
General
Orthopedics was tolled for 182 days, or until April 12,
2002, and then ran for 42 more days, expiring on May 23,
2002.
Plaintiffs’ March 19, 2002, complaint, presenting
8
Accordingly, we overrule that part of Ashby that is
inconsistent with this opinion.
9
their claim against General Orthopedics, was filed within
the limitations period.
Plaintiffs sent two notices of intent to sue to Dr.
Kohen, but did not sue him within two years of the alleged
malpractice; therefore, for their claim against Dr. Kohen
to be timely, plaintiffs must show that one of the two
notices tolled the limitations period.
The first notice
was sent to Dr. Kohen only seven months into the two-year
limitations
period.
Because
the
presuit
notice
period
begun by this notice of intent to sue expired before the
period of limitations expired, the tolling provision of §
5856(d)
did
not
come
into
play.9
As
a
result,
the
timeliness of plaintiffs’ claim against Dr. Kohen depends
on whether their second notice initiated tolling under §
5856(d).
9
As we noted in Omelenchuk, supra at 574:
[I]f the interval when a potential plaintiff
is not allowed to sue ends before the limitation
period ends (i.e., if notice is given more than
one hundred eighty-two days before the end of the
limitation period), then MCL 600.5856(d); MSA
27A.5856(d) is of no consequence.
In that
circumstance, the limitation period is unaffected
by the fact that, during that period, there
occurs an interval when a potential plaintiff
cannot file suit.
10
The
Court
of
Appeals
considered
plaintiffs’
second
notice of intent to sue, and concluded that it did not
initiate
tolling
under
§ 5856(d)
because
§
2912b(6)
prevented plaintiffs from “obtaining the benefit of another
182-day
tolling
period
based
on
the
filing
of
multiple
notices of intent.” (Emphasis added.)
We
agree
with
this
description
of
the
scope
of
§ 2912b(6), but not with its application to these facts.
As
stated
initiate
earlier,
tolling
plaintiffs’
under
§
first
5856(d).
It
notice
is
did
not
not
accurate,
therefore, to state that plaintiffs sought to obtain the
benefit of “another” tolling period by sending Dr. Kohen a
second notice of intent to sue.
notice,
sent
with
fewer
than
Rather, plaintiffs’ second
182
days
remaining
in
the
limitations period, was the first one eligible to initiate
tolling under § 5856(d).
Because plaintiffs only invoked
the
§
tolling
provision
of
5856
once,
and
filed
their
complaint before the period of limitations expired, their
complaint
was
plaintiffs
periods”
to
are
timely.
not
make
In
the
“tacking
their
language
.
complaint
.
.
of
§
2912b(6),
successive
timely.
182-day
Nothing
in
§
2912b(6) prevents plaintiffs from deriving the benefit of a
single tolling period of 182 days as a result of a timely
11
given
notice
of
intent
to
sue,
as
long
as
the
notice
otherwise complies with the requirements of § 2912b.
IV.
CONCLUSION
Section 2912b(6) prohibits the tacking of successive
notice periods to create multiple tolling periods.
In this
case, § 2912b(6) poses no bar to plaintiffs’ ability to
invoke tolling under § 5856(d) because plaintiffs did not
seek to tack or add successive 182-day periods in order to
reap the benefits of multiple tolling periods.
Because
plaintiffs filed their claims against both Dr. Kohen and
General
Orthopedics
within
the
limitations
period,
as
tolled by § 5856(d), we reverse the judgment of the Court
of Appeals and remand this case to the trial court for
further proceedings consistent with this opinion.
Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman
12
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