COLLENE E WALTZ V CAROL WYSE
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Michigan Supreme Court
Lansing, Michigan 48909
Chief Justice
Maura D. Corrigan
Opinion
Justices
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED APRIL 14, 2004
COLLENE E. WALTZ, Personal Representative
Of the Estate of JERRITH WALTZ, Deceased,
Plaintiff-Appellant,
Docket No. 122580
v
CAROL WYSE, D.O., and HILLS &
DALES COMMUNITY GENERAL HOSPITAL,
Defendants-Appellees.
_______________________________
BEFORE THE ENTIRE BENCH
YOUNG, J.
We
granted
leave
malpractice
case
to
600.5856(d)1
and
MCL
in
this
consider
the
600.5852.2
wrongful
death
interplay
medical
between
Specifically,
we
MCL
must
determine whether § 5856(d), the medical malpractice notice
1
MCL 600.5856(d) tolls the applicable “statute of
limitations or repose” when a claimant, in compliance with
MCL 600.2912b, provides written notice of her intent to
commence a medical malpractice action.
2
MCL
600.5852
extends
the
otherwise-applicable
limitation periods for wrongful death actions.
tolling provision, tolls the additional period permitted
for filing wrongful death actions under the wrongful death
saving provision, § 5852.
We conclude that § 5856(d) does
not apply to the wrongful death saving provision and that,
therefore,
Accordingly,
plaintiff’s
we
affirm
action
the
was
not
judgment
of
timely
the
filed.
Court
of
Appeals.
I.
FACTS3
AND
PROCEDURAL HISTORY
Plaintiff’s son, four-month-old Jerrith Waltz, died in
the emergency room of defendant Hills & Dales Community
General Hospital on April 18, 1994.
In the months prior to
his death, Jerrith was treated by defendant Dr. Carol Wyse
for vomiting, diarrhea, pneumonia, and problems leading to
dehydration and an inability to eat.
Bearing in mind that plaintiff’s son died on April 18,
1994, particularly relevant to this appeal are the dates on
which plaintiff took steps to file a medical malpractice
action against the hospital and Dr. Wyse:
1. In January 1999, plaintiff, who had not
yet been appointed personal representative of
Jerrith’s estate, notified the hospital and Dr.
Wyse of her intent to file suit as required by
MCL 600.2912b.
3
This matter was resolved on summary disposition. We
accept for purposes of this appeal the accuracy of the
recitation of facts contained in plaintiff’s notice of
intent to file suit and complaint.
2
2. On May 27, 1999, plaintiff was appointed
personal representative of Jerrith’s estate.
3. On June 23, 1999, plaintiff, in her
capacity as personal representative, filed a
wrongful death medical malpractice complaint
against the hospital and Dr. Wyse.
Defendants
sought
summary
disposition,
arguing
that
plaintiff had failed to file her complaint within either
the applicable two-year limitation period for malpractice
actions, MCL 600.5805(5),4 or the additional period allowed
for
wrongful
death
actions
under
§
5852.5
Defendants
contended that the notice tolling provision, § 5856(d),6 did
4
MCL 600.5805(5) was renumbered as MCL 600.5805(6) by
2002 PA 715, effective March 31, 2003.
5
MCL 600.5852 provides:
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.
Thus, § 5852 provides an exception to the otherwiseapplicable limitation periods by permitting the personal
representative of a decedent’s estate to file a wrongful
death action up to two years after letters of authority are
issued, subject to a three-year ceiling.
6
MCL 600.5856 provides, in relevant part:
The
tolled:
statutes
of
limitations
3
or
repose
are
not toll the additional period provided for wrongful death
actions under § 5852.
Defendants argued that § 5852 was
not itself a “statute of limitations or repose,” but was
instead a saving provision that merely provided a “grace
period” that extended the otherwise-applicable limitation
period.
Moreover, defendants contended that plaintiff had
no authority to file her notices of intent in January 1999,
before she was appointed personal representative; thus, the
notices did not serve to toll the time limit for filing
suit in any event.7
* * *
(d)
If, during the applicable notice period
under [MCL 600.2912b], 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.
Under this provision, the limitation period is tolled for
182 days if the plaintiff provides a valid notice of intent
before
the
limitation
period
expires.
See
MCL
600.2912b(1); Omelenchuk v Warren, 461 Mich 567; 609 NW2d
177 (2000).
7
In addition to her contention that the statute of
limitations barred plaintiff’s action, defendant Wyse
argued that (1) plaintiff failed to state a claim upon
which relief could be granted because she failed to allege
Dr. Wyse’s standard of care or facts demonstrating
proximate cause; (2) plaintiff’s affidavit of merit did not
comply with the provisions of MCL 600.2912d; and (3)
plaintiff’s notice of intent to file suit did not comply
with the provisions of § 2912b. Defendant hospital joined
in defendant Wyse’s motion only with respect to the statute
of limitations issue.
Because we conclude that summary
disposition was properly granted on that basis, it is
4
The trial court granted defendants’ motion, holding
that (1) because the notice tolling provision, § 5856(d),
did not toll the wrongful death “extension period,” § 5852,
and
(2)
because
plaintiff
was
not
appointed
personal
representative until after both the statute of limitations,
§ 5805(5), and the wrongful death “extension period” had
expired, the action was time-barred.8
The Court of Appeals affirmed, holding that the trial
court correctly concluded that the statute of limitations
barred plaintiff’s claim.
Unpublished opinion per curiam,
issued October 1, 2002 (Docket No. 231324).
We granted
plaintiff’s application for leave to appeal.
unnecessary to address the additional issues raised by Dr.
Wyse.
8
Although in light of our resolution of this matter it
is not necessary to address at any length the significance
of the fact that plaintiff had not yet been appointed
personal representative at the time that she filed her
notices of intent, we note that former MCL 700.332
(repealed and recodified in part at MCL 700.3701, 1998 PA
386, effective April 1, 2000) provided that “[t]he powers
of an independent personal representative relate back in
time to give acts by the person appointed which are
beneficial to the estate occurring before the appointment
the same effect as those occurring thereafter.”
The trial court additionally held that plaintiff
failed to state a claim on which relief could be granted,
MCR 2.116(C)(8), because she failed to specifically plead
the applicable standard of care. Because we agree that the
statute of limitations barred plaintiff’s action, we need
not address this alternate ground for summary disposition.
5
II.
We
review
de
STANDARD
novo
motions.9
disposition
OF
REVIEW
decisions
Under
summary
2.116(C)(7),
MCR
regarding
summary
disposition is proper when a claim is barred by the statute
of limitations.
was
properly
“consider[s]
In determining whether summary disposition
granted
all
under
MCR
documentary
2.116(C)(7),
evidence
this
submitted
Court
by
the
parties, accepting as true the contents of the complaint
unless
affidavits
or
other
appropriate
documents
specifically contradict them.”10
III.
A.
ANALYSIS
SECTION 5856(d) DOES NOT OPERATE
TO
TOLL § 5852
Plaintiff argues that her complaint was timely filed
under the wrongful death provision, § 5852, as extended by
the
notice
tolling
provision,
§
5856(d).
Plaintiff
contends that in Omelenchuk v Warren, this Court applied
the notice tolling provision to § 5852 and referred to §
5852 as setting forth a “limitation period.”
Thus, despite
the fact that she did not file her notices of intent until
well
after
limitation
the
expiration
period,
plaintiff
of
the
claims
two-year
that
she
malpractice
had
until
9
Maskery v Bd of Regents, 468 Mich 609, 613; 664 NW2d 165
(2003).
10
Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678
(2001); MCR 2.116(G)(5).
6
October 17, 1999 (182 days after the notices of intent were
served) to file suit.
The Court of Appeals rejected plaintiff’s argument,
holding that the notice tolling provision did not toll the
extended filing period for wrongful death actions:
In general, the statute of limitations for a
wrongful death action is the statute of limitations
for the underlying theory of liability, Eggleston v
Bio-Medical Applications of Detroit, Inc, 248 Mich
App 640, 646; 645 NW2d 279 (2001), which is two
years
for
medical
malpractice,
id.,
MCL
600.5805(5); Solowy v Oakwood Hosp Corp, 454 Mich
214, 219; 561 NW2d 843 (1997). . . . However, a
wrongful death savings provision applies if the
deceased died either before or within thirty days
after the period of limitations ended.
MCL
600.5852; McNeil v Quines, 195 Mich App 199, 202;
489 NW2d 180 (1992). Under the savings provision,
the personal representative of an estate may begin
a lawsuit within two years after letters of
authority are issued, as long as the lawsuit is
brought within three years after the two-year
general period of limitations ended. MCL 600.5852;
McNeil, supra at 202. This creates a maximum time
of five years for filing suit, unless the six-month
discovery rule in MCL 600.5838(2) applies.
Here, plaintiff failed to file her complaint
within five years after her son's death. However,
she argues that the five-year period was tolled for
182 days when her attorney sent both defendants
notices of intent before filing suit, as required
when a person alleges medical malpractice, MCL
600.2912b(1).
See also Rheaume v Vandenberg, 232
Mich App 417, 421; 591 NW2d 331 (1998). Generally,
the potential plaintiff must wait at least 182 days
after giving notice before filing a complaint, MCL
600.2912b(1); however, this period is reduced to
154 days if, as in this case, there was no written
response to the notice, MCL 600.2912b(8). See also
Omelenchuk, supra at 572-573.
When the interval
when a potential plaintiff is not allowed to
commence an action would end after the expiration
of the limitations period, then MCL 600.5856(d)
7
applies and the period of limitations is tolled for
182 days, Omelenchuk, supra at 574-575, if the
notice meets the substantive requirements set forth
in MCL 600.2912b, Roberts v Mecosta Co General
Hosp, 466 Mich 57, 59, 67, 70-71; 642 NW2d 663
(2002).
Here, the parties do not dispute that the
wrongful death savings statute applied, and thus
plaintiff could file suit within five years of the
infant's death, which plaintiff did not do.
However, plaintiff claims that the notices of
intent given to defendants tolled the extended
five-year limit set forth in the savings statute,
MCL 600.5852.
We disagree.
We need look no
further than the language of the tolling statute to
resolve this issue.
MCL 600.5856(d) expressly
tolls the "statute of limitations."
The Supreme
Court has said recently that MCL 600.5852 is not a
statute of limitations, but rather a savings
statute.
Miller [v Mercy Memorial Hosp, 466 Mich
196; 644 NW2d 730 (2002).]
Therefore, by its
express language, MCL 600.5856(d) tolls the statute
of limitations, not the extended limit in MCL
600.5852.
Consequently, the trial court did not
err because the statute of limitations barred
plaintiff's claim. [Slip op, pp 2-3.][11]
We agree with and adopt the reasoning of the Court of
Appeals in affirming the grant of summary disposition for
defendants.
Section 5856(d), by its express terms, tolls
only the applicable “statute of limitations or repose.”
As
we recently stated in Miller, supra at 202, the wrongful
11
The panel distinguished Omelenchuk:
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 period that started when the personal
representative was appointed, not the five-year
maximum at issue here. [Slip op p 3 n 2.]
8
death
provision,
§
5852,
“is
a
saving
statute,
(Emphasis supplied.)12
statute of limitations.”
not
a
See also
Lindsey v Harper Hosp, in which we explained that § 5852,
as “the statute of limitations saving provision” and an
“exception
suspend
to
the
the
statute
running
of
of
the
limitations,”
statute
until
operated
a
“to
personal
representative is appointed to represent the interests of
the estate.”13
The
plain
conclusion
language
that
limitations.”
it
is
of
§
not
5852
wholly
itself
a
supports
our
“statute
of
Again, § 5852 provides:
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
12
Even our dissenting colleague agrees that it has
long been settled that § 5852 is not a statute of
limitations, but a savings provision.
See post at 10.
However, the dissent does not address the plain language of
§ 5856(d), which tolls only the applicable “statute of
limitations or repose.”
The dissent further questions “how a claim may be
considered time-barred under the saving provision if the
saving provision is not a limitation period.” Post at 12.
The dissent misunderstands our analysis. Plaintiff’s claim
is not time-barred under the saving provision. Rather, it
is barred by the two-year statute of limitations for
medical malpractice actions.
The saving provision simply
does not save plaintiff’s claim because she did not file
her complaint until after the grace period provided for in
the saving provision had expired.
13
Lindsey v Harper Hosp, 455 Mich 56, 60-61, 65; 564
NW2d 861 (1997).
9
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. [Emphasis supplied.]
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.
In this case, the two-year limitation period provided
in § 5805(5) expired on April 18, 1996, two years after
Jerrith’s
5856(d),
death.
plaintiff
In
order
was
to
required
toll
to
the
period
provide
under
notices
§
of
intent in compliance with the provisions of MCL 600.2912b
before the expiration of the two-year limitation period.
Had she done so, the limitation period would have been
tolled for 182 days.
However,
See Omelenchuk, supra.
plaintiff
did
not
provide
her
notices
of
intent until January 1999, well after the expiration of the
two-year
limitation
period.
As
we
have
explained,
the
three-year ceiling provided in the wrongful death saving
provision was not “tolled” following plaintiff’s provision
10
of the notices of intent.
Thus, plaintiff’s June 23, 1999,
complaint was time-barred.14
B.
OMELENCHUK
V
WARREN
Plaintiff argues, and the Court of Appeals apparently
agreed, that this Court in Omelenchuk applied the notice
tolling provision to § 5852.
See slip op, p 3 n 2.
We
take this opportunity to clarify our holding in Omelenchuk.
The issue in Omelenchuk was whether the malpractice
notice tolling provision tolled the statutory limitation
period for a full 182 days or, instead, for only 154 days,
when a medical malpractice claimant does not receive the
written response to the notice of intent contemplated under
14
We disagree with the dissent’s assertion that our
reading of the applicable statutes “effectively reduce[s]”
by 182 days the two- and three-year periods provided for in
§ 5852.
See post at 21.
Plaintiff had a full two years
after letters of authority were issued to commence her
claim, as long as the claim was commenced within three
years after the expiration of the two-year limitation
period for medical malpractice actions.
Additionally,
plaintiff was entitled to a 182-day tolling period under §
5856(d), provided that she filed her notice of intent at
some
point
before
the
expiration
of
that
two-year
limitation period.
Potentially, then, under §§ 5805(5),
5852, and 5856(d), plaintiff had five years plus 182 days
to commence her lawsuit following the accrual of her cause
of action. However, because plaintiff waited until nearly
five years had passed after her infant’s death to file her
notice of intent, there was simply no unexpired “statute of
limitations” to toll.
This analysis in no way shortens
either the two-year extension period or the three-year
ceiling provided for in § 5852.
11
MCL 600.2912b(7).15
We held that the limitation period was
tolled for the entire 182-day period, notwithstanding the
fact
that
the
plaintiffs,
who
were
appointed
personal
representatives of the decedent’s estate the day after his
death
and
who
filed
their
notice
of
intent
before
the
expiration of the two-year limitation period, could have
commenced their lawsuit after only 154 days.
It was unnecessary in Omelenchuk to determine whether
the
182-day
notice
tolling
provision
wrongful death saving provision.
died on February 13, 1994.
applied
to
the
The plaintiffs’ decedent
Leaving aside application of
the wrongful death saving provision, the two-year medical
malpractice limitation period would thus have expired on
February 13, 1996.
The plaintiffs filed their notice of
intent on December 11, 1995, and they did not receive a
written response from the defendants.
We held that the
plaintiffs were entitled to a tolling period of a full 182
days, rather than only 154 days, even though under MCL
600.2912b(8) they could have filed suit after 154 days.
Applying
15
the
182-day
tolling
period,
the
two-year
MCL 600.2912b(7) provides that the recipient of a
notice of intent shall furnish a written response within
154 days after receipt. MCL 600.2912b(8) provides that if
no response is received by the claimant, he may commence a
medical malpractice action upon the expiration of the 154day period rather than waiting out the full 182-day period
otherwise contemplated by § 2912b(1).
12
limitation period would have expired on August 13, 1996,
irrespective of the wrongful death saving statute.
The
plaintiffs filed their complaint on July 19, 1996, well
before expiration of the limitation period as extended by
the tolling provision.
The source of the confusion surrounding our holding in
Omelenchuk stems in part from our passing references to §
5852
as
creating
a
“limitation
period.”
See,
e.g.,
Omelenchuk, supra at 577:
In the present case, the plaintiffs’ decedent
died on February 13, 1994. The plaintiffs received
their letters of authority the next day, February
14, 1994. Thus, [pursuant to § 5852,] the two-year
limitation period was set to expire on February 14,
1996. [Emphasis added.]
To
the
extent
Omelenchuk
that
our
implied
imprecise
that
§
5852
choice
of
created
a
words
in
separate
“limitation period,” we again clarify that § 5852 is not a
statute of limitations, but a saving statute.
We
additionally
note
that
we
mistakenly,
and
unnecessarily, based our time calculations on a starting
date
of
February
14,
1994
(the
date
the
personal
representatives were appointed), when we should have based
those calculations on the accrual date of the cause of
action,
February
13,
1994
(the
death).
See Omelenchuk, supra at 577:
13
date
of
the
decedent’s
In the present case, the plaintiffs' decedent
died on February 13, 1994. The plaintiffs received
their letters of authority the next day, February
14, 1994. Thus, the two-year limitation period was
set to expire on February 14, 1996.
On December 11, 1995 (sixty-five days before
the expiration of the limitation period) the
plaintiffs provided the required notice to the
defendants.
As a result of the notice, the
limitation period was tolled one hundred eighty-two
days.
Rather than expiring on February 14, 1996,
the limitation period thus was tolled from December
11, 1995, until June 10, 1996; it then resumed for
another sixty-five days until it expired on August
14, 1996.
* * *
The plaintiffs . . . filed their complaint on
July 19, 1996, nearly a month before the end of the
recalculated limitation period.
We should have stated that rather than expiring on
February 13, 1996, the limitation period was tolled from
December 11, 1995, until June 10, 1996, and then resumed
for another sixty-five days until it expired on August 13,
1996.
In
wrongful
any
event,
it
was
unnecessary
death
saving
provision
because
to
the
apply
the
action
was
commenced within the two-year limitation period.
To the
limited extent that the above-quoted portion of Omelenchuk
might be viewed as sanctioning application of the notice
tolling provision to the wrongful death saving provision,
it is hereby overruled.
IV.
Section
preserve
5852
actions
is
that
a
CONCLUSION
saving
survive
14
provision
death
in
designed
order
that
“to
the
representative of the estate may have a reasonable time to
pursue such actions.”
Lindsey, supra at 66.
It is not a
“statute of limitations” or a “statute of repose.”
Thus,
the notice tolling provision, § 5856(d)——which explicitly
applies only to “the statute of limitations or repose”——
does not operate to toll the additional period permitted
under § 5852 for filing wrongful death actions.
Because
plaintiff did not file her complaint until well after the
expiration
of
both
the
two-year
limitation
period
for
malpractice actions and the grace period provided for in §
5852, the lower courts properly determined that the action
was time-barred.
Accordingly, we affirm the judgment of
the Court of Appeals.
Robert P. Young, Jr.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Stephen J. Markman
15
S T A T E
M I C H I G A N
O F
SUPREME COURT
COLLENE E. WALTZ, Personal Representative
of the Estate of JERRITH WALTZ, Deceased,
Plaintiff-Appellant,
v
No. 122580
CAROL WYSE, D.O., AND HILLS &
DALES COMMUNITY GENERAL HOSPITAL,
Defendants-Appellees.
_______________________________
CAVANAGH, J. (dissenting).
This
case
calls
on
us
to
determine
whether
MCL
600.5856(d) tolls the period provided for filing wrongful
death claims under MCL 600.5852 where the wrongful death
claim is predicated on medical malpractice.
Because I find
that § 5856(d) applies to § 5852, I respectfully dissent
from the majority’s decision.
the
practical
effect
of
The majority’s holding has
shortening
the
period
the
Legislature expressly permits for bringing wrongful death
actions. Consistently with the will of the Legislature and
this Court’s unanimous opinion per curiam in Omelenchuk v
City of Warren, 461 Mich 567; 609 NW2d 177 (2000), I would
reverse the decision of the Court of Appeals.
I. INTERPLAY
Today’s
as
RELEVANT STATUTORY PROVISIONS
decision
misunderstanding
well
OF
the
of
the
interplay
evidences
nature
between
of
the
majority’s
plaintiff’s
the
statutory
claim,
as
limitation
provisions pertaining to wrongful death actions and medical
malpractice
claims.
Presumably,
it
is
this
basic
misunderstanding that drives the majority’s result.
majority
states,
“In
this
case,
the
two-year
The
limitation
period provided in § 5805(5) expired on April 18, 1996, two
years after Jerrith’s death.
In order to toll the period
under § 5856(d), plaintiff was required to provide notices
of
intent
in
compliance
with
the
provisions
of
MCL
600.2912b before the expiration of the two-year limitation
period.”
Ante at 11.
comprehend
the
Because the majority does not fully
nature
of
this
case,
an
examination
of
plaintiff’s claim and the applicable statutory provisions
is necessary.
“Early
in
its
history,
Michigan
adopted
a
rather
liberal ‘survival act’ to preserve causes of action which,
under common law, were terminated by the death either of
the person injured or the tortfeasor.”
Hawkins v Regional
Med Labs, PC, 415 Mich 420, 428-429; 329 NW2d 729 (1982).
MCL 600.2921 pertains to survival actions and provides:
2
All
actions
and
claims
survive
death.
Actions on claims for injuries which result in
death shall not be prosecuted after the death of
the injured person except pursuant to the next
section. If an action is pending at the time of
death the claims may be amended to bring it under
the next section.
A failure to so amend will
amount to a waiver of the claim for additional
damages resulting from death.
Thus,
survival
type
wrongful
death
actions
are
filtered
through MCL 600.2922, which provides in pertinent part:
(1) Whenever the death of a person or
injuries resulting in death shall be caused by
wrongful act, neglect, or fault of another, and
the act, neglect, or fault is such as would, if
death had not ensued, have entitled the party
injured to maintain an action and recover
damages, the person who or the corporation that
would have been liable, if death had not ensued,
shall be liable to an action for damages,
notwithstanding the death of the person injured,
and
although
the
death
was
caused
under
circumstances that constitute a felony.
The statute of limitations for a wrongful death action
is normally governed by the statute of limitations for the
underlying claim.
Mich
301,
314;
Larson v Johns-Manville Sales Corp, 427
399
NW2d
1
(1986).
In
general,
the
limitation period for a medical malpractice action is two
years.
Mich
MCL 600.5805(5); Miller v Mercy Memorial Hosp, 466
196,
however,
provisions
199;
has
644
set
relating
NW2d
forth
to
730
(2002).
specific
medical
death actions.
3
The
Legislature,
statutory
malpractice
limitation
and
wrongful
For example, MCL 600.5838a provides in pertinent part:
(1) For purposes of this act, a claim based
on the medical malpractice of a person or entity
who is or who holds himself or herself out to be
a licensed health care professional, licensed
health facility or agency, or an employee or
agent of a licensed health facility or agency who
is engaging in or otherwise assisting in medical
care and treatment, whether or not the licensed
health
care
professional,
licensed
health
facility or agency, or their employee or agent is
engaged in the practice of the health profession
in
a
sole
proprietorship,
partnership,
professional
corporation,
or
other
business
entity, accrues at the time of the act or
omission that is the basis for the claim of
medical malpractice, regardless of the time the
plaintiff discovers or otherwise has knowledge of
the claim.
* * *
(2) Except as otherwise provided in this
subsection, an action involving a claim based on
medical malpractice may be commenced at any time
within
the
applicable
period
prescribed
in
section 5805 or sections 5851 to 5856, or within
6 months after the plaintiff discovers or should
have discovered the existence of the claim,
whichever is later. [Emphasis added.]
Further, and at issue here, is the wrongful death saving
provision.
MCL 600.5852 provides in pertinent part:
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.
4
Under § 5852, the Legislature has expressly granted a
personal representative “an additional two years from the
date of issuance of letters [of authority] in which to
bring
suit
provided
that,
in
any
event,
the
[personal
representative] brings suit not more than three years after
the limitations period has run.”
Hawkins, supra at 438.
Thus, the Legislature has extended the time in which to
bring wrongful death claims, including those claims based
upon medical malpractice.
It
is
against
this
backdrop
that
the
tort reform measures must be considered.
requires
a
including
a
plaintiff
personal
alleging
representative
Legislature’s
The Legislature
medical
malpractice,
bringing
a
wrongful
death action, to provide notice of intent to commence an
action to the defendant before filing a complaint.
MCL
600.2912b; Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 65;
642 NW2d 663 (2002).
After giving notice of intent, a
plaintiff must wait at least one hundred eighty-two days
before filing the complaint; however, this period may be
reduced to one hundred fifty-four days if the plaintiff
does not receive a written response from the defendant.
MCL
600.2912b(1)
and
(8).
During
this
“waiting
period
required under MCL 600.2912b,” however, the Legislature has
provided
that
MCL
600.5856(d)
5
will
toll
the
period
of
limitations.
Roberts, supra at 60 (emphasis added).
MCL
600.5856(d) provides:
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.
The
Legislature
has
comprehensive
time
frame
malpractice.
The
seen
for
statutes
fit
to
actions
pertaining
provide
alleging
to
the
a
medical
timing
of
medical malpractice and wrongful death are intertwined.
II. OMELENCHUK
V
CITY
OF
WARREN
In Omelenchuk, nearly all the aforementioned statutory
provisions were implicated.
wisdom
and
its
avoiding
Thus, the majority’s newfound
that
decision
necessitate
a
thorough examination.
In
examining
the
language
of
the
notice
tolling
provision, § 5856(d), this Court began its analysis with
the following observation: “Certainly, that provision could
have been written more clearly.”
Omelenchuk, supra at 574.
In construing § 5856(d), this Court noted:
If, however, the interval when a potential
plaintiff is not allowed to file suit would end
after the expiration of the limitation period
(i.e., if notice is given one hundred eighty-two
days or less before the end of the limitation
period), then MCL 600.5856(d); MSA 27A.5856(d)
6
applies. In that instance, the limitation period
is tolled. [Id. (emphasis added).]
In determining how long the limitation period is tolled
under
§
preferred
2912b,
“we
construction
conclude[d]
is
that
the
and
[held]
limitation
that
the
period
is
tolled for the full one hundred eighty-two days.”
Id. at
575 (emphasis added).
In applying the notice tolling provision, § 5856(d),
to the wrongful death saving provision, § 5852, we noted:
In
the
present
case,
the
plaintiffs'
decedent
died
on
February
13,
1994.
The
plaintiffs received their letters of authority
the next day, February 14, 1994. Thus, the twoyear limitation period was set to expire on
February 14, 1996.
On December 11, 1995 (sixty-five days before
the expiration of the limitation period) the
plaintiffs provided the required notice to the
defendants. As a result of the notice, the
limitation period was tolled one hundred eightytwo days. Rather than expiring on February 14,
1996, the limitation period thus was tolled from
December 11, 1995, until June 10, 1996; it then
resumed for another sixty-five days until it
expired on August 14, 1996.
The plaintiffs were unable to file suit for
one hundred fifty-four days after they provided
notice on December 11, 1995. . . . This no-suit
interval ended on May 13, 1996, after which they
were able to file suit. The plaintiffs then filed
their complaint on July 19, 1996, nearly a month
before the end of the recalculated limitation
period. [Id. at 577 (emphasis added).]
Thus, this Court, in a unanimous decision, unquestionably
applied § 5856(d) to the limitation period provided under
§ 5852.
7
III. THE MAJORITY’S ATTEMPTS
The
majority,
ramifications
of
in
vain
this
TO
AVOID OMELENCHUK
attempts
Court’s
to
in
decision
avoid
the
Omelenchuk,
asserts that (1) “we mistakenly, and unnecessarily, based
our time calculations on a starting date of February 14,
1994”;1 and (2) confusion has stemmed from “our imprecise
choice of words in Omelenchuk [that] implied that § 5852
created a separate ‘limitation period.’”2
has
merit
and,
thus,
the
Neither assertion
majority’s
decision
to
conditionally overrule Omelenchuk is unwarranted.
A. THE TIME CALCULATIONS
IN
OMELENCHUK WERE ACCURATE
The Omelenchuk plaintiffs, as personal representatives
of
the
decedent’s
action.
By
decedent’s
estate,
operation
claim
of
instituted
§§
2921,
survived.
a
wrongful
2922,
Because
the
and
death
5852,
decedent
the
died
within the two-year period of limitation under § 5805, the
saving
provision
took
effect
and
the
plaintiffs
were
operating under the period set forth under § 5852, the
saving
provision.
unnecessarily
base
Thus,
our
we
did
calculations
not
on
1
Ante at 13 (emphasis in original).
2
Ante at 14-15.
8
mistakenly
or
the
of
date
appointment.
applicable
Under § 5852, we were required to measure the
two-year
period
from
the
date
the
personal
representatives were appointed.
We were not permitted to
consider
under
the
date
of
death
the
circumstances
presented in Omelenchuk.
The majority is simply wrong in its assertion that
Omelenchuk should have based its calculations on the date
the cause of action accrued.
The date of death in that
case, February 13, 1994, would only have been relevant (1)
if
the
decedent
somehow
survived
and
brought
a
medical
malpractice claim himself or (2) in determining the threeyear
ceiling
provided
under
§
5852.
As
such,
it
was
absolutely necessary for this Court to examine the wrongful
death saving provision because that was the nature of the
plaintiffs’
claim.
Thus,
the
majority’s
attempt
to
“clarify” Omelenchuk is disingenuous.
B. SECTION 5852 DOES SET FORTH
In
an
attempt
to
further
A
LIMITATION PERIOD
distance
itself
from
the
result reached in Omelenchuk, the majority now asserts that
we misspoke when we referred to § 5852 as a limitation
period.
Instead, the majority simply contends that § 5852
is not a statute of limitation, but a saving provision, in
order to justify its current holding.
This point of law,
however,
our
was
settled
long
9
before
decision
in
Omelenchuk.
Hardy v Maxheimer, 429 Mich 422, 425; 416 NW2d
299 (1987); Lindsey v Harper Hosp, 455 Mich 56, 60-61; 564
NW2d 861 (1997).
Further, while not formally labeled a
statute of limitation, it is clear from our prior decisions
that § 5852 is a limitation period because it sets forth
its own period of limitations.
In
Lindsey,
for
example,
the
defendant
moved
for
summary disposition under MCR 2.116(C)(7), asserting that
the plaintiff’s claim was barred under § 5852 because the
plaintiff
filed
appointed
temporary
supra
at
60.
suit
The
more
than
personal
two
years
after
representative.
plaintiff
argued
that
being
Lindsey,
the
claim
was
timely because the claim was filed within two years of the
issuance of formal letters of authority.
This Court held
that the saving provision begins to run when a plaintiff is
appointed temporary personal representative.
Because the
plaintiff did not bring suit within two years after being
appointed
temporary
personal
representative
as
required
under § 5852, the Lindsey Court held that the plaintiff’s
claim was untimely and, thus, barred.
As such, we did not
misspeak when we referred to § 5852 as a limitation period
in Omelenchuk.
Miller
Omelenchuk
also
that
supports
the
the
saving
10
conclusion
provision
is
reached
a
in
limitation
period.
In concluding that the six-month discovery rule, §
5838a(2), was a “period of limitation” within the meaning
of the saving provision, this Court noted:
Contrary to defendants' assertions, the sixmonth discovery rule is a distinct period of
limitation.
It is a statutory provision that
requires a person who has a cause of action to
bring suit within a specified time. As an
alternative to the other periods of limitation,
it is itself a period of limitation.
[Miller,
supra at 202.]
This inevitably leads to the conclusion that because § 5852
requires a plaintiff to bring suit within a specified time,
§ 5852 must be considered a limitation period.
Finally,
the
majority’s
decision
itself
necessarily
supports the notion that § 5852 is a limitation period.
The
majority
concludes
that
because
the
wrongful
death
saving provision was not tolled during the notice period,
plaintiff’s complaint is time-barred.
I question how a
claim
under
may
provision
period.3
be
if
considered
the
saving
time-barred
provision
is
not
the
a
saving
limitation
While § 5852 is not formally labeled as a statute
3
Contrary to the majority’s assertion, I do not
misunderstand its analysis.
Rather, I believe that its
analysis is fundamentally flawed. Plaintiff’s claim is not
governed by the two-year statute of limitations under
§ 5805 because her cause of action, by operation of law,
proceeds under the limitation period set forth under
§ 5852, the savings provision.
Therefore, if plaintiff’s
11
of limitation, it is clear that if a plaintiff does not
adhere to the period of limitations set forth under the
saving
provision,
he
is
dismissed as untimely.
misspeak
in
subject
to
having
his
claim
Thus, this unanimous Court did not
Omelenchuk
when
it
referred
to
§
5852
as
setting forth a limitation period.
In
sum,
I
find
the
Omelenchuk unacceptable.
majority’s
attempts
to
evade
I believe Omelenchuk reached the
correct result and effectively harmonized the applicable
statutory
provisions
pertaining
to
the
limitation
of
actions.
In fairness, however, I suppose the majority’s
avoidance of Omelenchuk is necessary to support its overly
narrow construction of § 5856(d).
IV. THE MAJORITY’S NARROW CONSTRUCTION
IS
CONTRARY
TO THE
LEGISLATURE’S
INTENT
The
majority
considers
§
5856(d)
in
isolation
and
strictly construes five words contained in that particular
provision
without
regard
to
the
other
relevant
and
applicable statutory provisions implicated in this action.
In
doing
so,
the
majority
undermines
the
Legislature’s
intent and violates several well-established principles of
statutory construction.
Applying accepted principles of
claim is to be considered time-barred at all,
necessarily be barred under § 5852, not § 5805.
12
it
must
construction, I would hold that § 5856(d) is applicable to
§ 5852.
“The primary goal of statutory interpretation is to
give effect to the intent of the Legislature.”
460 Mich 396, 411; 596 NW2d 164 (1999).
In re MCI,
To reach this
goal, this Court has recognized the rule that “statutes
relating to the same subject matter should be read and
construed together to determine the Legislature’s intent.”
Id.
at
416.
Further,
it
is
“a
maxim
of
statutory
construction that every word of a statute should be read in
such a way as to be given meaning . . . .”
Id. at 414
(emphasis added); see also Danse Corp v Madison Hts, 466
Mich 175, 182; 644 NW2d 721 (2002)(“The court must presume
that every word has some meaning and, if possible, effect
should be given to each provision.”).
As detailed above, the timing provisions relating to
wrongful
death
actions,
medical
malpractice
claims,
and
notice tolling are interconnected and are part of a common
legislative
provisions
framework.
implicated
Because
in
this
the
case
various
relate
to
statutory
the
same
subject matter, the terms of the provisions should be read
in pari materia.
Jennings v Southwood, 446 Mich 125, 136-
137; 521 NW2d 230 (1994).
materia
is
to
carry
“The object of the rule in pari
into
effect
13
the
purpose
of
the
legislature as found in harmonious statutes on a subject.”
Id. at 137, quoting Wayne Co v Auditor General, 250 Mich
227, 233; 229 NW 911 (1930).
In Detroit v Mich Bell Tel
Co, 374 Mich 543, 558; 132 NW2d 660 (1965), this Court
stated:
Statutes in pari materia are those which
relate to the same person or thing, or the same
class of persons or things, or which have a
common purpose.
It is the rule that in
construction of a particular statute, or in the
interpretation of its provisions, all statutes
relating to the same subject, or having the same
general purpose, should be read in connection
with it, as together constituting one law,
although enacted at different times . . . .[4]
The purpose of the wrongful death statutory framework
is to preserve causes of action, including those based on
medical malpractice, which were previously terminated by
the death of either the injured party or the wrongdoer
under
the
common
law.
Hawkins,
supra
at
428-429.
Similarly, the purpose of § 5852, the saving provision, is
to “preserve actions that survive death in order that the
4
See also Dearborn Twp Clerk v Jones, 335 Mich 658,
662; 57 NW2d 40 (1953)(“’It is elementary that statutes in
pari materia are to be taken together in ascertaining the
intention of the legislature, and that courts will regard
all statutes upon the same general subject matter as part
of 1 system.”); Remus v Grand Rapids, 274 Mich 577, 581;
265 NW 755 (1936)(“In the construction of a particular
statute, or in the interpretation of any of its provisions,
all acts relating to the same subject, or having the same
general purpose, should be read in connection with it, as
together constituting one law.’” [citation omitted].).
14
representative of the estate may have reasonable time to
pursue such actions.”
Lindsey, supra at 66.
Under § 5852,
the Legislature has deemed two years from the issuance of
letters of authority to be a reasonable time, but, in any
event, suit must be filed no more than three years from the
date the statute of limitations on the underlying claim has
expired.
The saving provision remained unchanged in the
face of tort reform; evidencing that the Legislature still
considered two years to be a reasonable time in which to
pursue
wrongful
malpractice,
death
subject
Consistently
with
the
claims
to
the
rule
predicated
of
on
medical
three-year
in
pari
ceiling.
materia,
the
aforementioned provisions must be read together with the
Legislature’s subsequent tort reform measures.
Under 1993 PA 78, the Legislature amended the Revised
Judicature
Act
and
drastically
changed
the
procedures
necessary to bring a medical malpractice claim in Michigan.
Notably,
§
2912b
requirement
and
introduced
its
the
corresponding
notice
of
no-suit
intent
interval.
However, the Legislature also amended § 5856 to include
subsection
d,
which
provides
that
the
“statute
of
limitations or repose” is tolled during this notice period.
“The
purpose
settlement
of
without
the
the
notice
need
15
requirement
is
for
litigation
formal
to
promote
and
reduce
the
cost
still
providing
of
medical
malpractice
compensation
for
litigation
meritorious
while
medical
malpractice claims that might otherwise be precluded from
recovery because of litigation costs.”
Neal v Oakwood Hosp
Corp, 226 Mich App 701, 705; 575 NW2d 68 (1997), citing
Senate Legislative Analysis, SB 270, August 11, 1993, and
House Legislative Analysis, HB 4403-4406, March 22, 1993.
Thus, the no-suit interval temporarily incapacitates a
medical
malpractice
plaintiff,
including
a
personal
representative bringing a wrongful death claim, so that the
defendant
may
investigate
the
claim
and
settlement negotiations may then occur.
meaningful
In exchange for
not being able to file suit, the Legislature has said that
the limitation period is tolled during the notice period so
that a plaintiff’s position is not prejudiced.
2912b,
2921,
2922,
5805,
5852,
and
5856(d)
When §§
are
read
together, it becomes clear that the Legislature intended
the
notice
tolling
provision
to
apply
to
the
saving
provision.
The approach I advance today is consistent with the
approach
this
Court
unanimously
used
in
Miller.
As
mentioned above, the issue in Miller was whether the sixmonth discovery provision for medical malpractice claims, §
5838a,
was
incorporated
in
16
the
wrongful
death
saving
provision.
This Court disagreed with the Court of Appeals
conclusion that the only “period of limitation” applicable
to a medical malpractice action under § 5852 was the twoyear period under § 5805(5).
In reaching our ultimate
conclusion that § 5838a(2) applied to § 5852, this Court
considered
that
the
purpose
of
§
5852
was
to
preserve
actions and to provide a reasonable time in which to pursue
wrongful death claims.
This Court further stated:
That purpose is fulfilled by our decision
today. Had plaintiff's decedent not died, he
would have been able to bring suit for six
months, or until July 1996. Suit would have been
timely, not under § 5805(5), but under §
5838a(2), not as an exception to the two-year
statute,
but
as
an
additional
period
of
limitation. [Miller, supra at 203.]
Thus, the saving provision must necessarily be considered
both a limitation period and, in light of the purposes of
that
provision
and
the
tort
reform
measures,
a
period
subject to the notice tolling provision.
Further,
while
currently
out
of
favor
with
some
members of this Court, the approach I advance today is also
consistent
with
construction.
may
depart
literal
another
accepted
maxim
of
statutory
It has long been recognized that “the Court
from
reading
strict
of
the
construction
principles
statute
produce
will
when
absurd
a
or
illogical results, and this Court should attempt to give
17
effect to all relevant statutory provisions.”
DiBenedetto
v West Shore Hosp, 461 Mich 394, 408; 605 NW2d 300 (2000)
(CAVANAGH, J., dissenting), citing Gross v Gen Motors Corp,
448 Mich 147; 528 NW2d 707 (1995), and In re Landaal, 273
Mich 248, 252; 262 NW 897 (1935).
Personal representatives who bring a wrongful death
claim on the basis of medical malpractice must comply with
the notice of intent provision and likewise may not file
suit during the no-suit interval.
However, by operation of
law, the limitation period for these causes of action is
governed by § 5852, not § 5805(5).
Under the majority’s
holding, wrongful death plaintiffs must still comply with
the notice requirement of § 2912b, but do not receive the
benefit of tolling under § 5856(d) because, according to
the
majority,
holding,
§
5856(d)
however,
plaintiffs
must
only
ignores
proceed
the
under
applies
fact
the
to
that
§
5805.
This
wrongful
death
limitation
period
set
forth by § 5852, not § 5805, and must follow the mandates
of § 2912b.
Further, the majority’s decision effectively
shortens
period
the
the
Legislature
has
plainly
under § 5852 by one hundred eighty-two days.
this
case
illustrate
the
absurdity
result.
18
of
allowed
The facts of
the
majority’s
Between
evaluated
February
plaintiff’s
and
April
1994,
four-month-old
defendant
son.
On
Wyse
April
13,
1994, plaintiff took her son to defendant Hills & Dales
Community
General
admitted.
back
to
Hospital;
however,
her
son
was
not
On April 17, 1994, plaintiff brought her son
defendant
hospital
and
the
baby
hospital the next day, April 18, 1994.
died
at
the
Thus, under § 5805,
the medical malpractice statute of limitations was set to
expire on April 18, 1996.
Further, the three-year ceiling
provided under § 5852 was set to expire on April 18, 1999.
Plaintiff,
estate,
had
as
to
personal
file
representative
suit
within
two
of
her
years
son’s
of
her
appointment, but was required to file no later than April
18, 1999, under the plain language of the saving provision.
Because
also
plaintiff
had
to
was
provide
alleging
medical
defendants
with
before filing her action.
notices
of
intent
in
malpractice,
notices
of
intent
Plaintiff served the required
January
1999,
well
before
the
expiration of the three-year ceiling under § 5852.
under
§
2912b,
plaintiff
she
could
not
file
suit
Yet,
for
one
hundred eighty-two days, or for one hundred fifty-four days
if defendants failed to give a written response.
Thus,
plaintiff could not have filed suit before the three-year
ceiling expired even if she so desired under the current
19
tort reform system because plaintiff was in the “no-suit
interval,” i.e., plaintiff was required to wait under §
2912b.
During this no-suit interval, the Legislature has said
that,
under
§
5856(d),
time
stands
still
so
that
a
plaintiff’s position is not prejudiced and the purposes of
the tort reform measures can come to fruition.
If time
were not tolled for wrongful death plaintiffs in the same
manner as other plaintiffs, the plain language of § 5852 is
shortened by one hundred eighty-two days.
A wrongful death
plaintiff would have to give notices of intent at least one
hundred
eighty-two
days
before
the
expiration
§
5852.
Thus, the two years expressly provided under the saving
provision are effectively reduced to one-and-a-half years,
and the three-year ceiling is reduced because plaintiffs
are
required
eighty-two
ceiling.
to
days
provide
before
notice
the
of
expiration
intent
of
one
the
hundred
three-year
In this case, for example, plaintiff would then
have been required to give her notices of intent by October
16, 1998.
Such a result is in direct conflict with the
plain language of § 5852 and is contrary to the purpose of
the tort reform measures.
20
The following highlights the differences between the
majority’s
decision
and
the
proper
reading
of
the
applicable provisions:
REQUIRED NO-SUIT INTERVAL
April 18, 1994
Plaintiff’s baby
dies
January 16 & 19, 1999
Plaintiff served notices
of intent as required
under § 2912b
April 18, 1996
Medical malpractice
statute of limitation
expires under § 5805
June 22, 1999
No-suit interval
expires under
§ 2912b(7) & (8)
April 18, 1999
Date majority
says plaintiff
must have filed
June 23,
1999
Plaintiff
files suit
§ 5852 TOLLED BY § 5856(d)
The Legislature clearly did not intend for wrongful
death
plaintiffs
interval.
majority.
Yet,
and
to
be
this
is
prejudiced
the
result
during
reached
the
no-suit
by
today’s
closing
By strictly construing five words in isolation
its
eyes
to
the
other
applicable
statutory
limitation provisions and legislative intent, the majority
effectively and impermissibly rewrites part of the Revised
Judicature Act.
elected
to
plaintiffs
treat
The majority, not the Legislature, has
the
alleging
notice
medical
period
for
malpractice
21
wrongful
death
differently
from
the notice period medical malpractice plaintiffs who happen
to survive their injuries.
V. CONCLUSION
Rather than rewriting the Revised Judicature Act, I
would read the various statutory provisions as one law.
Because the notice tolling provision and the wrongful death
savings provision are part of the same law, I would hold
that § 5856(d) applies to claims governed by the limitation
period under § 5852.
Legislature’s
intent,
This approach is consistent with the
accepted
principles
of
statutory
construction, and this Court’s unanimous opinion per curiam
in Omelenchuk.
I would, therefore, reverse the decision of the Court
of Appeals and remand for trial.5
Michael F. Cavanagh
Marilyn Kelly
5
As the majority accurately notes, former MCL 700.332
dictates
that
plaintiff’s
appointment
as
personal
representative relates back to the time she gave her
notices of intent. Thus, the trial court erred in granting
defendants’ motion for summary disposition on this ground.
Further, defendant Wyse’s arguments that plaintiff failed
to state a claim upon which relief could be granted and
that the notices of intent were deficient under § 2912b are
without merit.
22
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