TIMOTHY KING V MCPHERSON HOSPITAL
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STATE OF MICHIGAN
COURT OF APPEALS
TIMOTHY KING, Successor Personal
Representative of the Estate of ANDREW
BAKER,
FOR PUBLICATION
October 19, 2010
Plaintiff-Appellant,
v
No. 284436
Livingston Circuit Court
LC No. 04-020535-NH
McPHERSON HOSPITAL, a/k/a TRINITY
HEALTH-MICHIGAN, MICHAEL BRIGGS,
D.O., MERLE HUNTER, M.D., and
EMERGENCY PHYSICIANS MEDICAL
GROUP, P.C.,
Defendants-Appellees.
Before: K.F. KELLY, P.J., and MARKEY, O’CONNELL, TALBOT, WILDER, MURRAY and FORT
HOOD, JJ.
O’CONNELL, J. (dissenting).
I concur with the majority that plaintiff diligently pursued his rights and arguments up
and down the judicial system, including an appeal to our Supreme Court. I also concur with the
majority and the panel in King v McPherson Hosp, 287 Mich App ___; ___ NW2d ___ (Docket
No. 284436, issued April 27, 2010) [King I], that a limited application of the now-famous order
in Mullins v St. Joseph Mercy Hosp, 480 Mich 948; 741 NW2d 300 (2007) [Mullins III], is
“unfair” and, in my opinion, will result in a miscarriage of justice.
I write separately to state that the majority opinion misconstrues both the scope and
purpose of the Supreme Court’s order in Mullins III. The Mullins III order is not, as the majority
opinion speculates, an “intervening change of the law.” The law remains the same after the
effective date of the Mullins III order as it was before the Mullins III order was issued. In this
regard, the order is an extraordinary edict from our Supreme Court.1 Rather than limit the
1
Since the Supreme Court’s order in Mullins III did not change the current state of the law, the
majority’s reliance on the well-written cases such as Sumner v Gen Motors Co (On Remand),
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Mullins III order to a select group of plaintiffs, I would apply the Mullins III order to all litigants
unceremoniously thrown off the litigation train before receiving their day in court. This is how
the Mullins III order was intended to be applied and how the King I panel has applied this order.
I see no justice or equity in creating two classes of plaintiffs and then unjudiciously picking
which class of plaintiffs will have their day in court and which class of plaintiffs will be denied
their day in court. To operate in such a manner is to recreate the same firestorm that generated
the Mullins III order in the first place.2
I. HISTORY OF THE MULLINS ORDER
In reality, the Supreme Court’s order in Mullins III operates as a pardon for those
plaintiffs who failed to timely discern the ramifications of the Supreme Court decision in Waltz v
Wyse.3 The Mullins III order recognized the difficult time this Court experienced interpreting the
current state of medical malpractice law. It also recognized that numerous plaintiffs, through no
fault of their own, had lost their ability to pursue their causes of action. In McLean v
McElhaney, 269 Mich App 196, 207-208; 711 NW2d 775 (2005), rev’d 480 Mich 978 (2007)
(O’CONNELL, J., dissenting), I metaphorically described the confused state of the law as follows:
The finest legal augur with the keenest sight and all the birds in the autumn sky
could not have anticipated Waltz’s outcome with enough certainty to provide
rudimentary counsel to a prospective client. This analysis would also lead to the
conclusion that equity forbids retroactive application of Waltz.
Undeniably, Omelenchuk [v City of Warren, 461 Mich 567; 609 NW2d
177 (2000)] stood as an unchallenged and clear pronouncement of the controlling
timetables until Waltz changed them. Plaintiffs responded to the original
schedules by timely arriving at the station, buying an outrageously expensive
ticket, and boarding the correct train. Fueled by even more money, the litigation
engine pulled smoothly out of the station and chugged its way up to speed. Now
Ousley [v McLaren, 264 Mich App 486; 691 NW2d 817 (2004)] ceremoniously
presents plaintiffs with the Supreme Court’s newly revised timetables;
paternalistically explains to them how, under the new schedules, they were
technically tardy to the station; warmly apologizes for the fallibility and
humanness of the legal system; and demands that we unceremoniously throw
plaintiffs from the speeding train. I do not see any justice or equity in this course
of action. Ousley should be disregarded, Waltz should only receive prospective
application, and I would reverse. [Footnote omitted.]
245 Mich App 653; 633 NW2d 1 (2001), and People v Maxom, 482 Mich 385; 759 NW2d 817
(2008), is misplaced.
2
Ironically, four of the Court of Appeals judges involved in the current dispute (Judges
Donofrio, K.F. Kelly, O’Connell, and Talbot) were also involved in the Mullins appellate
decisions.
3
Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004).
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It is important to remember that every judge on this Court experienced some difficulties
in attempting to follow the then-current state of medical malpractice law. Because of these
difficulties, Judge Fitzgerald and I declared a conflict with Ousley in our opinion in Mullins v St.
Joseph Mercy Hosp, 269 Mich App 586; 711 NW2d 448 (2006) [Mullins I]. Our Court then
voted to convene a conflict panel and, in Mullins v St. Joseph Mercy Hosp, 271 Mich App 503;
722 NW2d 666 (2006) [Mullins II], the conflict panel produced four separate, divergent
opinions.4 I believe it is fair to say that even the conflict panel was conflicted. Unfortunately,
the Mullins II majority sidestepped the substantive analysis of the issue raised in Mullins I
(whether Waltz should be applied prospectively or retroactively) and chose to resolve the case
based on a series of non-binding remand orders, leaving both the bench and bar in a state of
confusion.5 After the aborted attempt in Mullins II to resolve the retroactivity issue, I described
the chaotic situation in Ward v Siano, 272 Mich App 715, 721-722; 730 NW2d 1 (2006), rev’d
480 Mich 979 (2007), (O’CONNELL, J., concurring):6
The issue that truly ignited the firestorm was the related holding that
because MCL 600.5852 was a saving provision, the medical malpractice tolling
provision, MCL 600.5856, did not toll it. Waltz, supra at 655. This was an issue
of first impression on a settled area of law whose resolution would ordinarily be
limited to prospective application. See Pohutski v City of Allen Park, 465 Mich
675, 696-697; 641 NW2d 219 (2002); Bryant v Oakpointe Villa Nursing Ctr, Inc,
471 Mich 411, 432; 684 NW2d 864 (2004). It was not a nominal extension of
understood principles, but the plowing under of familiar and common legal
concepts and the reversal of years of standard practice. The ingrained nature of
the pre-Waltz approach to tolling statutes, saving statutes, and other extensions of
limitations periods, can best be seen by considering the legal concepts that
developed along the way.
***
With more than 60 cases involving Waltz issues in various stages of the
appellate process, the time is ripe for the Supreme Court to address the
4
I note that the King I opinion and the Mullins III order do not fit into the category described as
conventional legal analysis. Both are extraordinary statements that have been issued to afford
justice to those plaintiffs who failed to comprehend the significance of Waltz.
5
The confusion then turned to whether the Supreme Court’s remand orders were binding on this
Court.
6
In my concurring opinion in Ward, I requested that the Supreme Court grant leave on the
propriety of prospective or retroactive application of Waltz. It appears that the Mullins III order
was the response to this request. In my opinion, the Mullins III order is an astonishing statement
by our Supreme Court. It was a bold, assertive order issued to correct a wrong turn by this
Court. The Supreme Court should be commended for their foresight; in one paragraph they
devised the perfect solution for the then-existing problem.
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substantive issue presented to the Mullins II conflict panel. Without a plenary
discussion of the issues, we are left only with the remand orders. In my opinion,
only a learned and exhaustive opinion will amicably put these and other unsettled
issues to rest. I would simply ask that the Supreme Court grant leave to appeal in
one of these cases and resolve the issue of whether Waltz should be applied
prospectively or retroactively. [Footnotes omitted.]
II. THE SUPREME COURT’S EDICT
Mullins II was appealed to the Supreme Court, which resulted in an end to the chaos and
produced the now-famous Mullins III edict:7
We 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 (2004), does not apply to any causes of action filed after Omelenchuk v City
of Warren, 461 Mich 567 (2000), was decided in which the saving 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 saving 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. Reported below: 271 Mich App
503. [Mullins, 480 Mich 948.]
The Supreme Court order did not change the law; instead, it created a window in which
Waltz did not apply retroactively. In my opinion, the Supreme Court order applies to all
plaintiffs who were dispatched to the dustbin. All plaintiffs who were properly on the litigation
train and who properly exhausted all their appellate remedies should get their tickets stamped
and be placed back on the litigation train with full rights and privileges. As the King I panel
stated, “The Supreme Court in its use of the words, ‘any causes of action’ did not limit the
palliative nature of its order to only those cases still pending.” 287 Mich App ___, ___ (slip op
at p 10.)8
7
King I refers to the Supreme Court order as Mullins II, not Mullins III.
8
I am puzzled at the majority’s attempt to place a square peg in a round hole. This type of
thinking is what caused the chaos in the first place. See Ousley, 264 Mich App 486.
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I concur with the result reached in the King I opinion. I would reverse the decision of the
trial court.9
/s/ Peter D. O’Connell
/s/ Karen M. Fort Hood
9
As evidence of the complexity of this issue, I note that those Court of Appeals judges who have
opined on the King case are split five to five: five judges favor limited application of the Mullins
III order, and five judges favor applying the Mullins III order to all litigants who are denied their
day in court.
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