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,
v
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No. 261333
Washtenaw Circuit Court
LC No. 04-001101-NM
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 Owens, JJ.
HOEKSTRA, P.J., (concurring in part and dissenting in part).
I agree with the majority that our Supreme Court's decision in Waltz v Wyse, 469 Mich
642; 677 NW2d 813 (2004), "retroactively foreclosed any statutory basis for tolling the two-year
filing period in the saving statute, MCL 600.5852." Ante at ___. I respectfully dissent, however,
from the majority's conclusion that the doctrine of equitable tolling may be applied here to
uphold the trial court's denial of summary disposition in favor of defendants.
As noted by the majority, this case stems from the June 3, 2000, death of plaintiff 's
decedent, who committed suicide allegedly as a result of malpractice by defendants. Regarding
the application of the principles of equity, plaintiff 's sole argument on appeal is that summary
disposition of the wrongful death medical malpractice suit subsequently brought by her as
personal representative of the decedent's estate was properly denied because, "[a]t the time [her]
cause of action arose . . ., Omelenchuk [v City of Warren, 461 Mich 567; 609 NW2d 177 (2000)]
was the controlling law in this state." Plaintiff asserts that she reasonably relied on Omelenchuk
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in concluding that the tolling provision of MCL 600.5856(d)1 applied to the two-year period for
commencing a wrongful death action as personal representative of a decedent's estate set forth in
MCL 600.5852. Thus, plaintiff requests that this Court invoke its equitable powers to alleviate
the effects of retroactively applying the Supreme Court's subsequent decision in Waltz to the case
at bar. As explained below, however, legal considerations and a diligent reading of the relevant
precedents preclude this Court from applying principles of equity to judicially toll the period of
limitations and, thereby, spare plaintiff from the admittedly harsh result of summary dismissal of
her claim on the basis that Omelenchuk was controlling precedent.
Well before the decedent's death, our Supreme Court, in Lindsey v Harper Hosp, 455
Mich 56, 58-59; 564 NW2d 861 (1997), addressed whether the two-year period set forth in MCL
600.5852 began to run when the plaintiff was issued letters of authority as "temporary" personal
representative, or when the plaintiff was later appointed as the permanent personal representative
of the decedent's estate. In concluding that the period began to run at the issuance of the letters
appointing the plaintiff temporary personal representative, and that, as a result, the plaintiff 's
claim for medical malpractice was time-barred, the Court made repeated references to MCL
600.5852 as a "saving provision" that, "as an exception to a statute of limitation, must be
narrowly construed." Id. at 64-67, 69. Noting the generally arbitrary manner in which "all
statutes of limitation set . . . time limits for legal claims," however, the Court declined to limit the
retroactive effect of its holding despite the fact that the "plaintiff 's claim may seem unfairly
barred by [its] holding . . . ." Id. at 69.
Several years later, and only shortly before the death of plaintiff 's decedent, our Supreme
Court released its decision in Omelenchuk, supra at 571-577, in which it addressed whether the
notice tolling provision of MCL 600.5856(d) tolled the period of limitations for a medical
practice claim for a full 182 days, or only 154 days, when a medical malpractice claimant does
not receive a written response to the notice of intent required by MCL 600.2912b. Declining to
rewrite MCL 600.2912b, the Court held that while the statute allows the 182-day "no suit"
waiting period to be "reduced to [154] days if the [defendant] fails to respond to the notice," the
two-year limitations period applicable to a claim for medical malpractice nonetheless remains
tolled in such circumstances for the full 182 days. Id. at 573, 575. In applying its holding,
however, the Court calculated the "limitation period" at issue as beginning on the date of the
appointment of the decedent's personal representative, rather than the date of the accrual of the
claim. Id. at 577 (emphasis added). After then applying the notice tolling provision of MCL
600.5856(d) to this period, the Court reversed this Court's conclusion that the plaintiff 's claim
was time-barred. Id. at 577-578.
1
As recognized by the majority, MCL 600.5856 was amended by 2004 PA 87, effective April
22, 2004. As part of this amendment, MCL 600.5856(d) was reworded in a manner that does not
change the substantive meaning of the provision, and reassigned as MCL 600.5856(c). Because
many of the precedents discussed in this opinion and the events relevant to the timeliness of
plaintiff 's complaint occurred before the effective date of 2004 PA 87, I will refer to the
arrangement of MCL 600.5856 before its amendment.
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Approximately two years after the Court's decision in Omelenchuk, plaintiff was issued,
on May 2, 2002, letters of authority appointing her personal representative of the decedent's
estate. Although acknowledging that MCL 600.5852 expressly afforded her a period of two
years from that date in which to file her claim, plaintiff asserts that the Supreme Court's holding
in Omelenchuk provided her a reasonable basis to presume that this period could be extended by
the notice tolling provision of MCL 600.5856(d). However, during the month following
plaintiff 's appointment as personal representative, the Supreme Court issued its opinion in Miller
v Mercy Mem Hosp, 466 Mich 196; 644 NW2d 730 (2002). Unlike Omelenchuk, in which MCL
600.5852 was only tangentially implicated, in Miller the Court was asked to expressly address
the provisions of MCL 600.5852. Specifically, the Court was asked to decide whether the sixmonth discovery rule of MCL 600.5838a(2) constituted a "period of limitations" within the
meaning of MCL 600.5852. Miller, supra at 197. In concluding that it does, the Court strictly
construed the plain language of MCL 600.5852, citing both Lindsey and the fact that "[s]ection
5852 is a saving statute, not a statute of limitations." Miller, supra at 202-203.
Two years after Miller was decided, and just weeks before plaintiff served defendants
with notice of her intent to file a medical malpractice claim on April 27, 2004, the Court released
its decision in Waltz, supra at 644, 650, in which it expressly addressed the question at issue
here, i.e., whether MCL 600.5856(d) tolls the two-year period for commencing a wrongful death
action provided for under MCL 600.5852. Noting that it "'need look no further than the language
of the tolling statute to resolve this issue,'" the Court in Waltz held that the notice of intent tolling
provision of MCL 600.5856(d) does not toll the two-year period for commencing an action as
personal representative of a decedent's estate provided for by MCL 600.5852, but, "by its express
terms, tolls only the applicable 'statute of limitations or repose.'" Id. at 649-650, quoting Waltz v
Wyse, unpublished opinion per curiam of the Court of Appeals, issued October 1, 2002 (Docket
No. 231324), slip op at 2, and MCL 600.5856(d). As support for its conclusion in this regard,
the Court recalled its earlier pronouncements in both Miller and Lindsey that MCL 600.5852 is
not itself a statute of limitations, but rather a "'statute of limitations saving provision' and an
'exception to the statute of limitations' . . . ." Id. at 650, quoting Lindsey, supra at 61, 65. With
respect to its characterization of MCL 600.5852 as creating a "limitation period" in Omelenchuk,
the Court acknowledged that its "imprecise choice of words" in resolving the question before it
in that case had resulted in some confusion. Waltz, supra at 653-654. The Court noted,
however, that its "passing references to § 5852 as creating a 'limitation period,'" as well as its
mistaken calculations of time in applying its holding were unnecessary to resolution of the issue
in Omelenchuk. Id. at 653-655.
Relying on Waltz, defendants sought summary disposition of the medical malpractice
claims alleged by plaintiff in the wrongful death action filed by her October 21, 2004. At about
that same time, a panel of this Court approved for publication its decision in Ousley v McLaren,
264 Mich App 486; 691 NW2d 817 (2004), in which it addressed whether the Supreme Court's
decision in Waltz met the requirements for exception from the general rule that judicial decisions
are to be given complete retroactive effect. In answering this question, the panel noted that for
the exception to apply, the decision must either overrule clear and uncontradicted case law or
decide an issue of first impression that was not clearly foreshadowed. Id. at 493. Noting further
that the question whether the notice tolling provision of MCL 600.5856(d) applied to the
wrongful death saving provision of MCL 600.5852 was not before the Court in Omelenchuk, the
panel found that the only law Waltz might arguably have overruled was the admittedly confusing
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and imprecise dicta used by the Court in applying its holding in Omelenchuk. Id. at 493-495.
The panel further concluded that "to the extent that Waltz decided an issue of first impression in
deciding that § 5856(d) does not toll § 5852, that resolution was 'clearly foreshadowed,' if not
actually determined, by the [Supreme Court's] previous decision holding that § 5852 is a saving
provision, not a statute of limitations or repose." Id. at 495, citing Waltz, supra at 653-654.
Thus, the panel concluded that Waltz meets neither of the two exceptions to the general rule
requiring retroactive application of judicial decisions and that its holding, therefore, applies
retroactively. Ousley, supra at 495.
The trial court here found both Waltz and Ousley to be distinguishable on the grounds
that the plaintiffs in those cases failed to file an action within the five-year outside limit set by
MCL 600.5852. To the extent the majority concludes that the trial court erred in denying
defendants' motions on these grounds, and that application of Waltz and its progeny renders
plaintiff 's complaint untimely, I concur. See ante at ___, ___. I do not agree, however, that the
doctrine of equitable tolling is available to remedy the dismissal required by these conclusions.
The doctrine of equitable, or judicial, tolling may be applied to toll the running of a
period of limitations in the interests of justice. See 51 Am Jur 2d, Limitation of Actions, § 174,
p 563-564. Proper application of the doctrine, however, is limited to those instances in which a
plaintiff has exercised reasonable diligence in pursuing a claim, but "is prevented in some
extraordinary way from asserting his or her rights." Id. at 564. Here, plaintiff maintains that she
reasonably relied on Omelenchuk to conclude that the notice tolling provisions of MCL
600.5856(d) apply to the period for commencing a wrongful death action under MCL 600.5852.
However, as recognized by the courts in both Waltz and Ousley, any such implication by the
Court in Omelenchuk was expressed in dicta that clearly contradicted the clear and unambiguous
language employed in MCL 600.5856(d) and MCL 600.5852, as well as the characterization of
MCL 600.5852 as a statute of limitations "saving provision" and an "exception" to the statute of
limitations in Lindsey, which was decided before Omelenchuk, and in Miller, which was decided
after Omelenchuk. Waltz, supra at 650; Ousley, supra at 492, 494-495. Under such
circumstances, it cannot be said that plaintiff exercised reasonable diligence in the timely pursuit
of her claim, in choosing to rely on Omelenchuk to afford the relevant statutes a broad
interpretation not supported by the plain language of the statute, such that the interests of justice
require application of the doctrine of equitable tolling. Indeed, as recognized by the Court in
Waltz, supra at 650-651, and again by this Court in Ousley, supra at 495, a diligent and
reasonable reading of the relevant precedents and statutory language plainly advises that a
medical malpractice plaintiff 's filing of a notice of intent to sue does not toll the wrongful death
saving provision. Consequently, I do not believe that application of the doctrine of equitable
tolling is warranted in this case.
Further, I disagree with the majority's conclusion that "equitable principles compel [our]
affirmance" in this matter because "[p]laintiff relied on the courts' repeated recognition and the
general understanding among the bench and bar that tolling applied under the circumstances of
this case." Ante at ___. Setting aside the fact that plaintiff herself makes no such claim, but
simply argues that Omelenchuk was controlling precedent, I nonetheless would conclude that
even if this case were as the majority alleges, equitable tolling is not a remedy to which the
plaintiff here, or those in other similarly situated cases, can look for relief.
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In Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432-433; 684 NW2d 864
(2004), our Supreme Court applied the principles underlying the doctrine of equitable tolling to
permit the plaintiff to proceed with medical malpractice claims filed by her as claims of ordinary
negligence outside the period established by MCL 600.5805(6) and MCL 600.5852. Although
observing that, "under ordinary circumstances," the plaintiff 's claims for medical malpractice
would be time-barred, the Court found that the "equities" of that case compelled a different
result. Bryant, supra at 432. In doing so, the Court noted that "[t]he distinction between actions
sounding in medical malpractice and those sounding in ordinary negligence [had] troubled the
bench and bar," and thus found that the "[p]laintiff 's failure to comply with the applicable statute
of limitations [was] the product of an understandable confusion about the legal nature of her
claim, rather than a negligent failure to preserve her rights." Id. The Court, therefore, applied its
equitable power to permit the plaintiff 's medical malpractice claims to proceed to trial along
with her claim of ordinary negligence. Id.
The Court, however, recently clarified the limits of this equitable power in Devillers v
Auto Club Ins Ass'n, 473 Mich 562, 590 n 5; 702 NW2d 539 (2005), in which, declining to apply
these same principles to toll the one-year-back rule of MCL 500.3145(1), the Court explained
that "a categorical redrafting of a statute in the name of equity violates fundamental principles of
equitable relief and is a gross departure from the proper exercise of the 'judicial power,'" and, in
doing so, distinguished its application of equity in Bryant:
[I]n Bryant, there was no controlling statute negating the application of
equity. Instead the disputed issue in Bryant—whether a claim sounds in medical
malpractice or ordinary negligence—was controlled by this Court's case law. On
the other hand, in the present case, there is a statute that controls the recovery of
PIP benefits: § 3145(1). Section 3145(1) specifically states that a claimant "may
not recover benefits for any portion of the loss incurred more than 1 year before
the date on which the action was commenced," and this Court lacks the authority
to say otherwise.
As in Devillers, an application of the doctrine of equitable tolling here would result in the
"categorical redrafting" of the plain and unambiguous language employed in both MCL
600.5856(d) and MCL 600.5852. Therefore, such relief is beyond the authority of this Court.
Additionally, I note that although developed to alleviate an unjustly harsh result arising
from the strict application of a statute of limitations, equitable tolling is a fact-based remedy
driven by the unique circumstances of an individual case. See Keenan v Bagley, 400 F3d 417,
421 (CA 6, 2005) (the applicability of equitable tolling must be decided on a case-by-case basis).
In contrast, where, as here, the alleged inequity or injustice arises from the judicial
pronouncement of a rule of law, and thus applies broadly across a class of cases, the proper
remedy lies in the determination whether the rule announced is to operate retroactively or only
prospectively. See, e.g., James B Beam Distilling Co v Georgia, 501 US 529, 543; 111 S Ct
2439; 115 L Ed 2d 481 (1991) (opinion of Souter, J.) ("Once retroactive application is chosen for
any assertedly new rule, it is chosen for all others who might seek its prospective application.").
With respect to such a determination, our Supreme Court did not, as it did in Lindsey, supra at
68-69, address the effect of its holding in Waltz on those cases pending at the time of its decision.
It is evident from its precedent, however, that in those circumstances where the Court believes
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that "injustice might result from full retroactivity," it has seen fit to limit retroactive application
of its holdings. Pohutski v City of Allen Park, 465 Mich 675, 695-696; 641 NW2d 219 (2002);
see also Gladych v New Family Homes, Inc, 468 Mich 594, 606; 664 NW2d 705 (2003). Rather
than do so here, our Supreme Court has denied leave to appeal this Court's decision in Ousley,
see 472 Mich 927 (2005), and has directed that this Court give its holding in Waltz "full
retroactive application" in at least three other cases, Wyatt v Oakwood Hosp & Medical Centers,
472 Mich 929 (2005); Evans v Hallal, 472 Mich 929 (2005), and Forsyth v Hopper, 472 Mich
929 (2005). The Court's view on the matter thus seems clear, despite its failure to directly
address the question of the retroactive application of Waltz. Although adherence to this view
commands a harsh result for this plaintiff, and potentially a great number of other plaintiffs, we
cannot ignore the Court's directives and, in any event, are bound to follow the holding in Ousley,
MCR 7.215(J)(1), and apply Waltz retroactively to the case at bar.2
For all these reasons, and because to apply the doctrine of equitable tolling here is to
afford Waltz only prospective application, I respectfully dissent from the majority's conclusion
that the doctrine may validly be applied to uphold the trial court's denial of summary disposition
in favor of defendants.
/s/ Joel P. Hoekstra
2
Despite my disagreement with the majority concerning the application of equitable tolling, I
fully agree that the issues arising from Waltz "have consumed inordinate time and effort on the
part of the bench and bar at various levels." Ante at ___. In this Court, the recent decision of
Mullins v St Joseph Mercy Hosp, 269 Mich App ___; ___ NW2d ___ (2006), has invoked the
conflict procedure, MCR 7.215(J)(2), regarding the holding in Ousley. See 269 Mich App 801
(2006). With its opinion today, the majority applies equitable tolling essentially as a substitute
for prospective application, a decision that in my judgment may well result in another panel
declaring a conflict. All the while that these issues swirl through this Court, litigants are faced
with prolonged uncertainty regarding the viability of their claims. It seems to me that under
these circumstances, it is incumbent on the Supreme Court to take up these issues and resolve
them definitively. In this regard, I fully concur with the majority's reasoning in McLean v
McElhaney, 269 Mich App 196, ___; ___ NW2d ___ (2005).
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