ESTATE OF DEEPIKA S MAZUMDER V UNIVERSITY OF MICHIGAN REGENTS
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STATE OF MICHIGAN
COURT OF APPEALS
MONIKA MAZUMDER, Personal Representative
of the Estate of DEEPIKA S. MAZUMDER,
Deceased,
FOR PUBLICATION
February 23, 2006
9:05 a.m.
Plaintiff-Appellee/Cross-Appellee,
v
UNIVERSITY OF MICHIGAN BOARD OF
REGENTS, ROBERT A. KOEPKE, PH.D.,
RAJIV TANDON, M.D., SATOSHI
MINOSHIMA, M.D., WASHTENAW COUNTY
COMMUNITY MENTAL HEALTH, JOSEPH
YAROCH, M.D., MOONSON R. ELLIOTT
ENINSCHE, B.A., R.S.W., C.S.M., and
RICHARD PFOUTZ, M.S.W., C.S.W.,
No. 261331
Washtenaw Circuit Court
LC No. 04-001101-NM
Defendants,
and
MOHAMED AZIZ, M.D., and STEPHAN F.
TAYLOR, M.D.,
Defendants-Appellants,
and
SRINIBAS MAHAPATRA, M.D.,
Defendant-Cross-Appellant.
MONIKA MAZUMDER, Personal Representative
of the Estate of DEEPIKA S. MAZUMDER,
Deceased,
Plaintiff-Appellee/Cross-Appellee,
-1-
No. 261333
Washtenaw Circuit Court
LC No. 04-001101-NM
v
UNIVERSITY OF MICHIGAN BOARD OF
REGENTS, MOHAMED AZIZ, M.D., STEPHAN
F. TAYLOR, M.D., ROBERT A. KOEPKE,
PH.D., RAJIV TANDON, M.D., SATOSHI
MINOSHIMA, M.D., and JOSEPH YAROCH,
M.D.,
Defendants,
Official Reported Version
and
WASHTENAW COUNTY COMMUNITY
MENTAL HEALTH, MOONSON R. ELLIOTT
ENINSCHE, B.A., R.S.W., C.S.M., and RICHARD
PFOUTZ, M.S.W., C.S.W.,
Defendants-Appellants,
and
SRINIBAS MAHAPATRA, M.D.,
Defendant-Cross-Appellant.
Before: Hoekstra, P.J., and Neff and Davis, JJ.
NEFF, J.
In these consolidated appeals involving a wrongful death medical malpractice action,
defendants appeal by leave granted an order of the trial court denying their motions for summary
disposition pursuant to MCR 2.116(C)(7) on the grounds that plaintiff 's action was time-barred.1
Dr. Srinibas Mahapatra also challenges on cross-appeal the order denying summary disposition.
We affirm, although not on the basis cited by the trial court.
I
1
Drs. Mohamed Aziz and Stephan F. Taylor appeal by leave granted in Docket No. 261331, and
Washtenaw County Community Mental Health; Moonson R. Elliott Eninsche, B.A., R.S.W.,
C.S.M.; and Richard Pfoutz, M.S.W., C.S.W., appeal by leave granted in Docket No. 261333.
-2-
This case is one of numerous appeals prompted by the Michigan Supreme Court's
decision in Waltz v Wyse, 469 Mich 642, 648-650; 677 NW2d 813 (2004), and more particularly,
this Court's decision in Ousley v McLaren, 264 Mich App 486, 494-495; 691 NW2d 817 (2004),
which determined that Waltz warrants retroactive application.2 The question in this case is
whether plaintiff 's wrongful death medical malpractice action is properly dismissed after the
decision in Waltz because the 182-day statutory tolling period, MCL 600.5856, on which
plaintiff relied in calculating the period of limitations for filing her action was no longer
applicable, and thus the saving period for filing a wrongful death action, MCL 600.5852, expired
during the required 182-day statutory notice period for filing a medical malpractice action, MCL
600.2912b. We conclude that principles of equity require affirmance under the circumstances of
this case.
II
In Waltz, the Supreme Court held that wrongful death actions filed by personal
representatives under MCL 600.5852 were subject to the 182-day statutory waiting period for
filing a medical malpractice action, MCL 600.2912b(1), but were not entitled to the concomitant
182-day statutory tolling of the limitations period under MCL 600.5856. Before the decision in
Waltz, the bench and bar in Michigan, including a significant portion of this Court, generally
functioned with the understanding that the notice period and the notice tolling provision operated
together so that the two-year saving period permitted for filing a wrongful death action by a
personal representative would be tolled during the 182-day waiting period. Consequently, after
the decision in Ousley holding that Waltz applied retroactively, numerous cases pending in the
lower courts were summarily dismissed as time-barred because the plaintiffs had filed the actions
presuming a statutory tolling period, which under Waltz no longer applied. Like the proverbial
deer in the headlights, the plaintiffs' causes of action have been frozen in time and space by the
retroactive application of Waltz by Ousley, leaving them with no recourse or remedy.
The legal fallout from the decision in Waltz has been significant. This Court has been
presented with numerous appeals of nearly identical issues of time-bar dismissal, all disputing
the correctness and reach of Waltz and its progeny. These issues have consumed inordinate time
and effort on the part of the bench and bar at various levels. For defense counsel, Waltz and
Ousley were essentially a windfall in pending cases. For the plaintiffs' counsel, and their clients,
the decisions had serious repercussions.3
2
See also Forsyth v Hopper, 472 Mich 929 (2005); Wyatt v Oakwood Hosp & Med Centers, 472
Mich 929 (2005); Evans v Hallal, 472 Mich 929 (2005); McMiddleton v Bolling, 267 Mich App
667, 671; 705 NW2d 720 (2005); Lentini v Urbancic (On Remand), 267 Mich App 579, 582 n 3;
705 NW2d 701 (2005).
3
Not only were the cases dismissed, but the grounds of dismissal call into question the adequacy
of counsel's representation; a statute of limitations error on the part of trial counsel is the most
rudimentary error.
-3-
Viewing Waltz and Ousley as correct, the fact that so many members of this state's bench
and bar committed such rudimentary errors would be a discredit to the profession. Viewing
Waltz or Ousley as incorrect, the fact that members of the bench and bar can ignore the
inequities in these circumstances is a discredit to our sense of fairness and justice. Either way,
permitting the summary dismissal of these legitimately filed claims is an indictment of our legal
system, not merely the plaintiffs' lawyers. The Supreme Court has generally recognized and
applied equitable principles to avoid injustice in circumstances such as these. Bryant v
Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004); Gladych v New
Family Homes, Inc, 468 Mich 594, 606; 664 NW2d 705 (2003); Pohutski v City of Allen Park,
465 Mich 675, 698-699; 641 NW2d 219 (2002). We conclude that the application of principles
of equity is similarly warranted in this case to reinstate plaintiff 's action.
III
Plaintiff Monika Mazumder filed this action as personal representative of the estate of the
decedent, Deepika S. Mazumder, following Deepika's death on June 3, 2000. According to
plaintiff 's complaint, Deepika committed suicide as a result of defendants' negligence in treating
her mental illness.
Personal representative letters of authority were issued for Deepika's estate on May 2,
2002. Plaintiff filed a notice of intent for the medical malpractice action on April 27, 2004, and
subsequently filed her complaint on October 21, 2004. Presuming that the saving period was
tolled during the 182-day notice period, plaintiff calculated that she had the remainder of the
two-year saving period in which to file her complaint, and thus the complaint was timely filed.5
4
Waltz was decided on April 14, 2004. Under the analysis in Waltz, plaintiff 's action
would be time-barred because Waltz held that the notice tolling provision, MCL 600.5856, did
not toll the wrongful death saving period, MCL 600.5852, and therefore the saving period
expired May 2, 2004, during the 182-day waiting period following her notice of intent. This
Court subsequently held that Waltz applied retroactively; thus, the analysis in Waltz became
applicable to plaintiff 's case. Ousley, supra at 494-495.
IV
Defendants argue that the trial court erred in denying their motions for summary
disposition on the basis that plaintiff timely filed her complaint within the "five-year ceiling"
permitted for filing a wrongful death action under MCL 600.5852. We agree for reasons
discussed below.
4
Although plaintiff apparently is the successor personal representative, she relies on the date the
initial personal representative, Bhaskar Mazumder, was appointed.
5
The number of days from April 27, 2004, to May 2, 2004, added to the 182 days.
-4-
Further, it seems clear that applying the analyses in Waltz and subsequent cases would
result in the dismissal of plaintiff 's case in hindsight because plaintiff could not meet the 182day waiting period following her notice of intent, during which she was precluded from filing
suit, and still file her complaint before the end of the two-year saving period under MCL
600.5852. However, given the widespread recognition within the bench and bar of notice tolling
during the saving period before the decision in Waltz, and the injustice that results from ignoring
that recognition, plaintiff is entitled to equitable relief. Bryant, supra at 432; Apsey v Mem Hosp
(On Reconsideration), 266 Mich App 666, 681-682; 702 NW2d 870 (2005); see also Ward v
Rooney-Gandy, 265 Mich App 515, 517-520; 696 NW2d 64 (2005) (setting forth principles for
equitable tolling), rev'd 474 Mich 917 (2005). No principled basis exists for denying plaintiff
her right to proceed with her pending action.
A
Whether a period of limitations applies in particular circumstances constitutes a legal
question that this Court considers de novo. Detroit v 19675 Hasse, 258 Mich App 438, 444; 671
NW2d 150 (2003).
We [also] review de novo decisions regarding summary disposition
motions. 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).]
This Court considers de novo the applicability of equitable doctrines. Yankee Springs Twp v
Fox, 264 Mich App 604, 611; 692 NW2d 728 (2004).
B
The trial court denied defendants' motions for summary disposition on the grounds that
plaintiff 's complaint was timely filed in light of what the court perceived as a "five-year ceiling"
in MCL 600.5852. We disagree.
MCL 600.5852 sets forth a saving period in which a personal representative may pursue
a wrongful death action:
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.
-5-
The trial court reasoned that under the wrongful death saving provision, plaintiff had
three years from the time she was issued letters of authority in which to file her complaint, or
until June 3, 2005. However, as this Court noted in Farley v Advanced Cardiovascular Health
Specialists, PC, 266 Mich App 566, 573 n 16; 703 NW2d 115 (2005), the three-year period
referenced in the second sentence of MCL 600.5852 does not establish a wrongful death saving
period separate from the period of two years after the issuance of letters of authority:
We note that the three-year ceiling in this provision does not establish an
independent period during which a personal representative may bring suit.
Specifically, it does not authorize a personal representative to file suit at any time
within three years after the period of limitations has run. Rather, the three-year
ceiling limits the two-year saving period to those cases brought within three years
of when the malpractice limitations period expired. As a result, while the threeyear ceiling can shorten the two-year window during which a personal
representative may file suit, it cannot lengthen it.
Consequently, plaintiff 's action is not saved by the three-year ceiling in MCL 600.5852, and the
trial court erred in granting summary disposition on this basis.
C
The period of limitations applicable to a wrongful death action is generally the period
applicable to the underlying theory of liability. Waltz, supra at 648. The limitations period for a
medical malpractice action is two years from the date the claim first accrued.6 MCL 600.5805(1)
and (5);7 Farley, supra at 571. However, MCL 600.5852 sets forth a saving period in which a
personal representative may pursue a wrongful death action:
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.
Accordingly, "a personal representative may file a medical malpractice suit on behalf of a
deceased person for two years after letters of authority are issued, as long as that suit is
commenced within three years after the two-year malpractice limitations period expired."
Farley, supra at 572-573.
6
The six-month discovery rule, MCL 600.5838a(2), does not apply in this case.
7
Effective March 31, 2003, former MCL 600.5805(5) was renumbered as subsection 6. 2002
PA 715. Because subsection 5 prescribed the period of limitations applicable at the time this
action accrued, MCL 600.5838a(1), this opinion refers to subsection 5.
-6-
In 1993, the Legislature enacted a number of changes to the Revised Judicature Act,
including a 182-day notice provision for medical malpractice actions, MCL 600.2912b(1), and a
provision for tolling the period of limitations during the 182-day notice period, MCL
600.5856(d). 1993 PA 78; Morrison v Dickinson, 217 Mich App 308, 311-312; 551 NW2d 449
(1996). The purpose of the notice requirement is "to encourage settlement without the need for
formal litigation." Neal v Oakwood Hosp Corp, 226 Mich App 701, 715; 575 NW2d 68 (1997).
MCL 600.2912b(1) provides:
Except as otherwise provided in this section, a person shall not commence
an action alleging medical malpractice against a health professional or health
facility unless the person has given the health professional or health facility
written notice under this section not less than 182 days before the action is
commenced.
MCL 600.5856 provides:
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.[8]
Under the statutory scheme for notice, "filing a notice of intent to sue will toll any period of
limitations or repose, if such period . . . would otherwise bar the claim, for the time set out in the
written notice of intent provision (MCL 600.2912b[1]), that is, for a period not longer than 182
days." Farley, supra at 572.
In Waltz, the Supreme Court held that the medical malpractice notice tolling provision
did not toll the saving period under MCL 600.5852 for filing a wrongful death action:
Section 5856(d), by its express terms, tolls only the applicable "statute of
limitations or repose." As we recently stated in Miller [v Mercy Mem Hosp, 466
Mich 196, 202; 644 NW2d 730 (2002)], the wrongful death provision, § 5852, "is
a saving statute, not a statute of limitations." (Emphasis supplied.) See also
Lindsey v Harper Hosp [455 Mich 56, 60-61, 65; 564 NW2d 861 (1997)], in
which we explained that § 5852, as "the statute of limitations saving provision"
and an "exception to the statute of limitations," operated "to suspend the running
8
Effective April 22, 2004, MCL 600.5856 was amended, relettering subsection d as c, and
making other changes that do not affect this appeal. 2004 PA 87. This opinion cites the former
subsection for consistency.
-7-
of the statute until a personal representative is appointed to represent the interests
of the estate."
The plain language of § 5852 wholly supports our conclusion that it is not
itself a "statute of limitations." . . . By its own terms, § 5852 is operational only
within the context of the separate "period of limitations" that would otherwise bar
an action. Section 5852 clearly provides that it is an exception to the limitation
period, allowing the commencement of a wrongful death action as many as three
years after the applicable statute of limitations has expired. [Waltz, supra at 650651.]
D
The parties do not dispute the timing of the following relevant events in this case: (1) The
decedent died on June 3, 2000, after alleged acts of malpractice by defendants beginning on
March 3, 2000; (2) the probate court issued letters of authority appointing a personal
representative of the decedent's estate on May 2, 2002;9 and (3) the personal representative gave
defendants notice of the estate's intent to pursue medical malpractice claims against them on
April 27, 2004.
Plaintiff filed suit on October 21, 2004, nearly six months after the expiration of the
grace period for filing a medical malpractice action pursuant to the wrongful death saving
statute. Under the analysis in Waltz and its progeny, plaintiff 's complaint would be considered
untimely. Waltz, supra at 651; Farley, supra at 573-575.
E
The decision in Waltz, and subsequent decisions, essentially retroactively foreclosed any
statutory basis for tolling the two-year filing period in the saving statute, MCL 600.5852. Waltz
was decided on April 14, 2004, less than two weeks before the notice of intent in this case on
April 27, 2004, and less than three weeks before the two-year saving period expired on May 2,
2004. Under pre-Waltz decisions, our courts clearly applied the notice tolling provision to the
two-year saving period in the wrongful death statute. Plaintiff proceeded accordingly in this
case. If Waltz had not "eliminated" the tolling period, plaintiff 's complaint, filed on October 21,
2004, would have been timely in light of the 182-day notice tolling provision. Given the timing
of the Waltz decision, it was not possible for plaintiff to alter the course of the litigation to
protect her right to a cause of action.
9
Plaintiff argues that the wrongful death saving provision in MCL 600.5852 began to run on
May 2, 2002, the date that her predecessor personal representative, Bhaskar Mazumder, was
issued letters of authority. Plaintiff does not argue that the wrongful death saving period should
recommence on the date that she received letters of authority appointing her as the successor
personal representative, and thus we do not address this consideration.
-8-
In rendering its decision in Waltz, the Supreme Court acknowledged that its earlier
decision in Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d 177 (2000), "might be
viewed as sanctioning application of the notice tolling provision to the wrongful death saving
provision," and to that extent overruled Omelenchuk. Waltz, supra at 655. In Omelenchuk,
supra at 577, a unanimous Court referred to MCL 600.5852 as a "limitation period," and
calculated the limitations period on the basis of the date the personal representative was
appointed, February 14, 1994, rather than the accrual date of the cause of action, February 13,
1994. See Waltz, supra at 654. Accordingly, in Omelenchuk, supra at 577, the Court observed
that "the two-year limitation period was set to expire on February 14, 1996," two years after the
personal representative was appointed, indicating that the two-year period was tolled during the
statutory notice period, i.e., the wrongful death saving period under MCL 600.5852. See Waltz,
supra at 654.
Although in Waltz the Court determined that the dates in Omelenchuk were miscalculated
and should have been based on the accrual date of the cause of action, February 13, 1994, rather
than on the date the personal representative was appointed, February 14, 1994, the fact remains
that Omelenchuk undeniably applied the tolling provision to the wrongful death saving
provision, even if contrary to the plain language of the statute. The bench and bar subsequently
relied on the analysis in Omelenchuk and the dates as calculated. See, e.g., Waltz v Wyse,
unpublished opinion per curiam of the Court of Appeals, issued October 1, 2002 (Docket No.
231324), slip op, p 3 n 2 ("To the extent that plaintiff relies on Omelenchuk, supra at 577, we
find that case distinguishable. In that case, the Supreme Court added the 182-day tolling period
to the two-year limitation periods that started when the personal representative was appointed . .
. .").
In addition to Omelenchuk, pre-Waltz published decisions of this Court similarly
recognized tolling with respect to the required 182-day notice period.10 In Fournier v Mercy
10
A review of both published and unpublished decisions in which this Court recognized that
tolling applied during the statutory notice period reveals that at least 17 members of this Court
presumed that tolling applied to the wrongful death saving statute. Fournier v Mercy
Community Health Care System-Port Huron, 254 Mich App 461; 657 NW2d 550 (2002)
(authored by Judge Kelly, joined by Judges Smolenski and Hood); Lentini v Urbancic, 262 Mich
App 552; 686 NW2d 510 (2004) (authored by Judge Smolenski and joined by Judges White and
Kelly), vacated and remanded, 472 Mich 885 (2005), on remand 267 Mich App 579 (2005);
Crockett v Fieger Fieger Kenney & Johnson, PC, unpublished opinion per curiam of the Court
of Appeals, issued October 28, 2003 (Docket No. 240863) (Judges Bandstra, Hoekstra, and
Borrello); Waltz v Wyse, unpublished opinion per curiam of the Court of Appeals, issued October
1, 2002 (Docket No. 231324) (Judges Cooper, Hoekstra, and Markey); Chernoff v Sinai Hosp of
Greater Detroit, unpublished opinion per curiam of the Court of Appeals, issued March 22, 2002
(Docket No. 228014) (Judges Neff, Fitzgerald, and Talbot); Gillary v Sisters of Mercy Health
Corp, unpublished opinion per curiam of the Court of Appeals, issued July 10, 2001 (Docket No.
221665) (Judges Saad, Holbrook, and Murphy); Williams v Spohn, unpublished opinion per
curiam of the Court of Appeals, issued December 12, 2000 (Docket No. 212792) (Judges Wilder,
(continued…)
-9-
Community Health Care System-Port Huron, 254 Mich App 461; 657 NW2d 550 (2002), the
Court clearly based its analysis and decision on the premise that the tolling provision, MCL
600.5856, applied to the wrongful death saving provision, MCL 600.5852. The Court held that
because the plaintiff failed to comply with requirements for the notice of intent under MCL
600.2912b, the notice of intent did not toll the "statutory period of limitation," which expired two
years after the probate court issued letters of authority appointing the plaintiff personal
representative. Fournier, supra at 468-469. In Fournier, the decedent died on July 7, 1998.
The plaintiff was appointed personal representative on July 13, 1998. The plaintiff mailed six
notices of intent on July 12, 2000, next-day delivery, all of which were mistakenly sent to one
recipient who was not named as a defendant. Id. at 463. The Court noted that "under the
particular facts of this case, the period of limitation expired July 13, 2000, two years after the
letters of authority were issued." Id. at 466-467 (emphasis added).
Likewise, in Lentini v Urbancic, 262 Mich App 552; 686 NW2d 510 (2004), vacated and
remanded, 472 Mich 885 (2005), on remand 267 Mich App 579 (2005), the "Court accepted that
MCL 600.5856(d) tolled the period described under MCL 600.5852 . . . ." Lentini, supra, 267
Mich App 581. In the initial opinion, the Court addressed the question of "when" the letters of
authority were considered "issued" for the purposes of tolling the period of limitations. The
Court held that the letters are "issued" on the date they are signed by the probate judge. Id. The
decedent died on April 11, 1999. The letters of authority were signed on October 15, 1999, and
certified and mailed to the plaintiff on October 19, 1999. On October 12, 2001, the plaintiff filed
a notice of intent. Id. at 580-581. In its initial decision, the Court stated:
If the date of issuance of the letters of authority is fixed as October 15,
1999, plaintiff had three days remaining under the statute of limitations when he
tolled the running of the statutory period on October 12, 2001. The saving
provision would give plaintiff three days to timely file his malpractice complaint
when the tolling provision expired on April 12, 2002, or until April 15, 2002. But
if the date of issuance of the letters of authority is deemed to be October 19, 1999,
plaintiff had seven days remaining under the statute of limitations at the time it
was tolled, and, therefore, when the tolling provision expired on April, 12, 2002,
plaintiff had until April 19, 2002, to timely file his complaint. Plaintiff filed his
complaint on April 17, 2002. Thus, whether plaintiff 's complaint survives is
wholly dependent on the date the letters of authority were "issued." [Lentini,
supra, 262 Mich App 554-555.]
No matter which date the letters of authority were considered "issued," the Court recognized that
the tolling period applied to the wrongful death saving statute. Pre-Waltz decisions by lower
courts likewise applied the tolling provision to the wrongful death saving provision.
(…continued)
Holbrook, and McDonald). Our review indicates that, before the holding in Ousley, no panel
had indicated a contrary view and, further, that defense counsel as well generally held the view
that tolling applied to the saving period. See, e.g. Chernoff, supra, slip op, p 1 and n 1.
-10-
Moreover, in Morrison, this Court addressed the statutory scheme for the notice of intent
requirement, MCL 600.2912b, and the tolling provision, MCL 600.5856, as enacted under 1993
PA 78. Because of the effective date and the enacting provisions of the public act, the plaintiffs'
case was subject to the notice requirement, but not the tolling provision. The Legislature enacted
the notice provision and the tolling provision, both effective April 1, 1994. Id. at 311. The act,
however, provided that the tolling provision did not apply to causes of action arising before
October 1, 1993, whereas the notice provision applied to cases filed on or after October 1, 1993.
Id. at 312.
In Morrison, the plaintiffs' malpractice action arose on May 21, 1992, with respect to a
childbirth; however, the plaintiffs provided their notice of intent on April 28, 1994, and filed
their complaint on May 19, 1994. Id. at 310. The defendants claimed that they were entitled to
summary disposition because the plaintiffs failed to give the required 182-day notice. The
Morrison Court held that although the plaintiffs failed to comply with the notice requirement,
they could not be denied the tolling period, even though technically it did not apply to their
cause of action because "enforcement would vitiate an accrued medical malpractice claim
without providing the potential plaintiff the benefit of the 182-day tolling provision." Id. at 318.
The Court held that the plaintiffs, as well as all similarly situated plaintiffs, were free to refile
their suits following the dismissal of their actions. Id. at 319. Morrison clearly recognized that
the Legislature's intent was that the 182-day notice provision would be counterbalanced by the
182-day tolling provision. Id. at 315-316.
F
In this case, plaintiff 's "untimely" filing was not due to her miscalculation of the
applicable limitations period. Plaintiff relied on the courts' repeated recognition and the general
understanding among the bench and bar that tolling applied under the circumstances of this
case.11 Accordingly, in keeping with established precedent, equitable principles compel
affirmance.
The Supreme Court has generally recognized and applied equitable principles to avoid
injustice in circumstances such as these. Bryant, supra at 432; Pohutski, supra at 698-699.
Given this precedent, including the recognition in Waltz, supra at 655, that Omelenchuk "might
be viewed as sanctioning application of the notice tolling provision to the wrongful death saving
provision," we find the equitable principles applied by Justice Markman in Bryant, supra at 432,
a proper basis for reinstating plaintiff 's action. In this case, as in Bryant, "[p]laintiff 's failure to
comply with the applicable statute of limitations is the product of an understandable confusion
about the legal nature of her claim, rather than a negligent failure to preserve her rights." Id.
11
The number of recent and pending appeals presenting nearly identical issues of time-bar
dismissal in the context of the wrongful death saving provision, MCL 600.5852, is further
evidence of this general understanding.
-11-
The fact that the language of the statute plainly refers to a "statute of limitations" or a
"statute of repose," see Waltz, supra at 651, 655, does not change this result. In Pohutski,
considering similar equities, Justice Corrigan, writing for the majority, obtained a similar result
under the same reasoning. The Court held that "the plain language of the governmental tort
liability act does not contain a trespass-nuisance exception to governmental immunity," but
nonetheless determined that it would be inequitable to apply the holding to pending cases. Id. at
689-690. Justice Corrigan concluded:
Thus, if we applied our holding in this case retroactively, the plaintiffs in
cases currently pending would not be afforded relief under Hadfield [v Oakland
Co Drain Comm'r, 430 Mich 139; 422 NW2d 205 (1988)] or 2001 PA 222.
Rather, they would become a distinct class of litigants denied relief because of an
unfortunate circumstance of timing.
Accordingly, this decision will be applied only to cases brought on or after
April 2, 2002. In all cases currently pending, the interpretation set forth in
Hadfield will apply. [Pohutski, supra at 698-699.]
Although Justice Corrigan's statements were made in the context of retroactivity, there is no
principled basis for failing to similarly uphold the "administration of justice" in this case. Id. at
699; see also Gladych, supra at 606. The equities do not change merely because of the nature of
the action. Plaintiff 's circumstances are no less worthy of equity, fairness, or justice with respect
to her right of action.
Even absent this Supreme Court precedent, the doctrine of judicial or equitable tolling
should be invoked to prevent the unjust forfeiture of plaintiff 's cause of action. Ward, supra at
520. In Ward, this Court set forth the principles of equitable or judicial tolling:
"The time requirements in lawsuits between private litigants are
customarily subject to equitable tolling if such tolling is necessary to prevent
unfairness to a diligent plaintiff." 51 Am Jur 2d, Limitation of Actions, § 174, p
563. "In order to serve the ends of justice where technical forfeitures would
unjustifiably prevent a trial on the merits, the doctrine of equitable tolling may be
applied to toll the running of the statute of limitations, provided it is in
conjunction with the legislative scheme." 54 CJS, Limitations of Actions, § 86, p
122. . . .
* * *
This Court in United States Fidelity & Guaranty Co v Amerisure Ins Co,
195 Mich App 1, 6; 489 NW2d 115 (1992), noted that "Michigan and federal case
law provides precedent for the principle that limitation statutes are not entirely
rigid, allowing judicial tolling under certain circumstances[.]"
* * *
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Equitable tolling has been applied where "the plaintiff actively pursued his
or her judicial remedies by filing a defective pleading during the statutory period
or the claimant has been induced or tricked by the defendant's misconduct into
allowing the filing deadline to pass." Am Jur 2d, supra at 563. While equitable
tolling applies principally to situations in which a defendant actively misleads a
plaintiff about the cause of action or in which the plaintiff is prevented in some
extraordinary way from asserting his rights, the doctrine does not require
wrongful conduct by a defendant. Id. at 564. An element of equitable tolling is
that a plaintiff must exercise reasonable diligence in investigating and bringing
his claim. Id. at § 175, p 564. [Id. at 517-520.]
The doctrine of equitable or judicial tolling "must and should be rarely invoked" only "to ensure
fundamental practicality and fairness and to prevent the unjust technical forfeiture of a cause of
action . . . ." Id. at 520; see also Apsey, supra at 681-682. Such circumstances exist in this case.
Although the Supreme Court recently reversed the majority decision in Ward in lieu of
granting leave to appeal for the reasons stated in the dissent in Ward, see 474 Mich 917 (2005),
the Ward dissent did not eschew the doctrine of equitable tolling, but concluded that it did not
apply in the circumstances of that case because the affidavit was grossly nonconforming and the
filing of the defective affidavit did not toll the period of limitations. Ward, supra at 529.
Contrasting Bryant, supra at 432, the dissent concluded that the plaintiff 's filing of an affidavit
regarding the wrong patient "was undoubtedly 'the product' of a 'negligent failure' rather than an
'understandable confusion . . . .'" Ward, supra at 528-529. In this case, to the contrary, there is
no indication that the timing of plaintiff 's complaint resulted from any negligent failure; rather, it
was based on the confusion among the bench and bar concerning the existing law in Michigan.
Apsey, supra at 681.
Plaintiff 's failure to comply with the statute of limitations was the product of an
understandable misinterpretation of the notice tolling provision, resulting from not only the
appellate courts' interpretation of the statutes at issue, but also from the presumed legislative
intent. We hold that plaintiff is entitled to equitable relief. Accordingly, we affirm the trial
court's order denying defendants' motions for summary disposition pursuant to MCR
2.116(C)(7).
V
Regardless of whether the decision in Waltz reached a correct result reading the plain
language of MCL 600.5856, this result could not have been intended by the Legislature. In this
case, as in Morrison, plaintiff is subject to the notice provision, but not the tolling provision,
which is contrary to the legislative intent as set forth in Morrison. The notice of intent tolling
provision, MCL 600.5856, should apply to the wrongful death saving period, MCL 600.5852,
because it is the only way to harmonize the statutes and thereby effectuate the plain enactments
of the Legislature.
In effect, Waltz established a judicial obstacle to a cause of action that the Legislature
established pursuant to the strict requirement of a 182-day waiting period to file a medical
malpractice action. The 182-day waiting period is used as a sword to shorten the two-year
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saving period. Wrongful death medical malpractice actions are generally time-consuming and
difficult to evaluate; personal representatives should at least have the benefit of the two-year
minimal period for filing a cause of action that the Legislature has determined is appropriate for
medical malpractice actions generally. We urge the Legislature to respond legislatively to
restore the two-year saving period for a wrongful death cause of action to eliminate confusion.
Affirmed.
Davis, J., concurred.
/s/ Janet T. Neff
/s/ Alton T. Davis
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