THELMA JOHNSON V HURLEY MEDICAL GROUP PC
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STATE OF MICHIGAN
COURT OF APPEALS
THELMA JOHNSON, Personal Representative of
the Estate of CARL JOHNSON, Deceased,
FOR PUBLICATION
April 13, 2006
9:05 a.m.
Plaintiff-Appellant,
v
No. 262143
Genesee Circuit Court
LC No. 00-069254-NH
HURLEY MEDICAL GROUP, P.C., d/b/a
HURLEY MEDICAL CENTER, and DR.
MOONGILMADUGU INBA-VAZHVU,
Official Reported Version
Defendants-Appellees.
Before: Fort Hood, P.J., and White and O'Connell, JJ.
O'CONNELL, J. (concurring in result only).
I agree with the majority's result, but I cannot adopt its reasoning. Rather than apply the
doctrine of judicial estoppel to reach the right result, I would, if writing on a clean slate, apply
the rule set forth in Pohutski v City of Allen Park, 465 Mich 675, 695-696; 641 NW2d 219
(2002), and I urge the Michigan Supreme Court to do the same. In Pohutski, the Court held that
the general rule is that judicial decisions are given full retroactive effect, however, "a more
flexible approach is warranted where injustice might result from full retroactivity." Id. at 696.
As explained in my dissent in McLean v McElhaney, 269 Mich App 196, 204-208; ___
NW2d ___ (2005), and my majority opinion in Mullins v St Joseph Mercy Hosp, 269 Mich App
586; ___ NW2d ___ (2006), I am of the opinion that injustice results from the retroactive
application of Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004). Therefore, I urge our
Supreme Court to apply the flexible approach it crafted in Pohutski to the rule it established in
Waltz.
By means of illustration, in Hardy v Maxheimer, 429 Mich 422, 449; 416 NW2d 299
(1987), Chief Justice Riley, writing in dissent, applied a textualist's approach to the wrongful
death statute and concluded that "a cause of action under the wrongful death statute accrues at
1
1
The Hardy decision is evidence that the confusion on the part of the bench and bar concerning
the application of the saving provision is not of recent origin.
-1-
death." She explained that "a wrongful death action does not survive death, but arises because of
it." Id. In accordance with this reasoning, she rejected the majority's conclusion that the saving
provision, MCL 600.5852, applied to wrongful death actions. She disagreed with the majority,
which she said held that the Legislature intended for MCL 600.5852 to "extend the statute of
limitations in every wrongful death action. . . ." Id. at 441.
The majority, however, expressly rejected Justice Riley's interpretation of MCL
600.5852. It responded that the dissent, by refusing to apply the time extensions provided in
MCL 600.5852 to the newly unified wrongful death action, "makes a nullity of the only statute
specifically placing a limitation on actions for wrongful death." Hardy, supra at 439 n 16
(emphasis added). The Court added, "We are not willing to disregard the precedent of our own
Court and the precise wording of ยง 2921 providing that all actions are survival actions in order to
provide a more uniform statute of limitations. That is the Legislature's work." Id. at 439-440 n
16. It concluded that the wrongful death suit was timely, "because the personal representatives
brought the action within two years of their appointment and within three years after the initial
period of limitation had run." Id. at 441 (emphasis added). From this language it is clear that
both sides of the issue in Hardy strictly interpreted the statute and agreed that if it applied to
wrongful death actions at all, it extended the period of limitations on the underlying conduct and,
essentially, operated as a new statute of limitations for wrongful death actions.
Therefore, it could be argued that MCL 600.5852 doubles as both a saving provision for
the medical malpractice action and, ultimately, as a statute of limitations or repose for the
wrongful death action. Cf. Ostroth v Warren Regency, GP, LLC, 474 Mich 36, 46; 709 NW2d
589 (2006) (holding that MCL 600.5839 is both a statute of limitations and a statute of repose).
Although this argument appears to undermine the premise in Waltz, it actually complements
Waltz by raising a legal issue that had previously gone unnoticed, an issue that fits squarely
within the parameters of the rule Waltz recognized.
Adding to the current legal confusion, however, is the fact that in Omelenchuk v City of
Warren, 461 Mich 567; 609 NW2d 177 (2000), the Supreme Court applied the tolling provision
to the saving provision in precise terms that indicated that the two statutes did operate together.
Omelenchuk's presentation of MCL 600.5805(6)2 and 600.5852 in tandem as alternative periods
of limitations, and especially its explicit use of a date stemming from the latter in applying the
tolling provision of MCL 600.5856(d), in my opinion, can only be interpreted as indicating that
the tolling statute applies to the saving provision. Before Waltz was decided, a malpractice
attorney seeking guidance on the operation of MCL 600.5852 and 600.5856(d) could hardly do
other than consult Omelenchuk and conclude from it that the latter applied to the former.
In my opinion, the level of confusion and imprecise language surrounding this issue
justifies the application of the flexible approach adopted in Pohutski.
/s/ Peter D. O'Connell
2
Omelenchuk refers to this provision as subsection 4, reflecting the designation in effect at the
time for claims covering malpractice. Omelenchuk, supra at 569 n 3.
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