368566

Mich. Ct. App.

Mar 20, 2025

KERAN ERNEST, Personal Representative of the ESTATE OF MAURICE ERNEST v. PAUL W. BROWN, JR., M.D., ELMAHDI M. SAEED, CYPRESS CARDIOLOGY PLLC, MCLAREN HEALTH CARE CORPORATION, and DR. FAROUK M. BELAL

No. 368566

STATE OF MICHIGAN COURT OF APPEALS

March 20, 2025

UNPUBLISHED; Genesee Circuit Court; LC No. 2023-119425-NH

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to revision until final publication in the Michigan Appeals Reports.

Before: CAMERON, P.J., and GARRETT and MARIANI, JJ.

PER CURIAM.

In this action for wrongful death arising out of medical malpractice, plaintiff appeals as of right the trial court‘s order granting summary disposition under MCR 2.116(C)(7) (statute of limitations) to defendants because plaintiff‘s claims were untimely. Wе affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff‘s decedent presented to the emergency room on July 16, 2020, complaining of chest pain. After being examinеd in the emergency room, decedent was moved to the cardiac unit for observation. He died the next day. Relevаnt to this appeal, on June 7, 2021, the Genesee County Probate Court issued letters of authority appointing Keran Ernest as thе personal representative of decedent‘s estate. Plaintiff sent its notice of intent to defendants on February 10, 2023, аnd filed suit on August 14, 2023. Defendants moved for summary disposition under MCR 2.116(C)(7) (statute of limitations), arguing that plaintiff‘s complaint was time-barred. The trial court granted the motions and dismissed the case. Plaintiff now appeals.

II. STANDARD OF REVIEW

“This Court reviews de novo both the applicability оf a statute of limitations ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and the trial court‘s ruling on a motion for summary disposition.” Dep‘t of Environmental Quality v Gomez, 318 Mich App 1, 21; 896 NW2d 39 (2016) (citations omitted). “Summary disposition under MCR 2.116(C)(7) is appropriate when the undisputed facts establish that the plaintiff‘s claim is barred under the applicable statute of limitations.” Dep‘t of Environmental Quality, 318 Mich App at 21 (quotation marks and citation omittеd). “Generally, the burden is on the defendant who relies on a statute of limitations defense to prove facts that bring the cаse within the statute.” Id. (quotation marks and citation omitted).

When reviewing a motion under MCR 2.116(C)(7), this Court must accept all well-pleaded factual allegations as true and construe them in favor оf the plaintiff, unless other evidence contradicts them. If any affidavits, depositions, admissions, or other documentary evidеnce are submitted, the court must consider them to determine whether there is a genuine issue of material fact. If no facts are in dispute, and if reasonable minds could not differ regarding the legal effect of those facts, the question whether the claim is barred is an issue of law for the court. However, if a question of fact exists to the extent that factual develоpment could provide a basis for recovery, dismissal is inappropriate. [Dep‘t of Environmental Quality, 318 Mich App at 21 (quotation marks and citation omitted).]

III. ANALYSIS

The question in this appeal involves the application of three statutes: (1) the statute of limitations for medical malpractice claims, MCL 600.5805(8), (2) the wrongful death savings provision (the “savings provision“), MCL 600.5852, and (3) the notice-tolling provision, MCL 600.5856(c).

Generally, medical malpractice actions are subject to a two-year statute of limitations from the time the claim accrues. MCL 600.5805(8). A claim for medical malpractice accrues “at the time of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the act or omission that is the basis for the claim[.]” MCL 600.5838a(1). A plaintiff alleging medical malpractice must give the defendant-provider written notice at least 182 days before filing suit. MCL 600.2912b(1). “At the time notice is given in compliance with the applicable notice period[,]” if the statute of limitations would have expired before the 182-day period elapsed, the limitations period “is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given.” MCL 600.5856(c). In this case, plaintiff‘s claim accrued when decedent allegedly recеived negligent medical care on July 16, 2020. Had plaintiff provided its notice of intent within two years of this date, the limitations period for bringing the claim under MCL 600.5805(8) would have been tolled, but plaintiff did not do so. Thus, when considered solely in the context of the original statute of limitations, plaintiff‘s claim expired on July 16, 2022, and its August 14, 2023 complaint was untimely.

However, the savings provision provided plaintiff with additional time in which to file suit. Relevant to this appeal, MCL 600.5852 states:

(1) If a person dies before the period of limitations has run or within 30 dаys after the period of limitations has run, an action that 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.

(2) If the action that survives by law is an action alleging medical malpractice, the 2-year period undеr subsection (1) runs from the date letters of authority are issued to the first personal ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍representative of an estate. Except as provided in subsection (3), the issuance of subsequent letters of authority does not enlarge the time within which the aсtion may be commenced.

* * *

(4) Notwithstanding subsections (1) to (3), an action shall not be commenced under this section later than 3 years after the period of limitations has run. [MCL 600.5852(1), (2), and (4).]

Plaintiff‘s letters of authority were issued on June 7, 2021. Thus, under MCL 600.5852, plaintiff had until June 7, 2023 to file suit, even thоugh the original statute of limitations had already expired. Again, plaintiff did not file its complaint until August 14, 2023. So, plaintiff‘s complaint was still untimely even when the savings provision is considered.

Plaintiff argues that the notice of intent it provided on February 10, 2023 tolled the period in which it could file suit under the savings provision. According to plaintiff, the notice tolling provision applies to the savings provision, rendering its suit timely. Plaintiff‘s claim fails because, in Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004), our Supreme Court expressly rejected the application оf the tolling provision in MCL 600.5856 to the savings provision in MCL 600.5852.

Plaintiff acknowledges that its argument is contrary to our Supreme Court‘s holding in Waltz, but asserts Waltz‘s holding is contrary to the Legislature‘s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍intent. In its effort to side step Waltz‘s holding, plaintiff spins two earlier cases from our Supreme Court to support its claim that the tolling provision in MCL 600.5856(c) applies to the savings provision: Hardy v Maxheimer, 429 Mich 422; 416 NW2d 299 (1987), and Omelenchuk v Warren, 461 Mich 567; 609 NW2d 177 (2000), overruled by Waltz, 469 Mich at 642. Plaintiff argues that Hardy remains good law because it was not expressly overruled by Waltz, and urges this Court to “apply the unambiguous language” of Omelenchuk despite it having been overruled by Waltz.

In Waltz, our Supreme Court held that MCL 600.5856 does not toll the time frame provided in MCL 600.5852. Waltz, 469 Mich at 650-651. It reasoned that MCL 600.5856 applies to a “period of limitations[,]” and MCL 600.5852 “clearly provides that it is an exception to the limitation period,” not a limitation period itself. Waltz, 469 Mich at 651. Thus, while MCL 600.5856 may serve to toll the two-year statute of limitations for the underlying medical-malpractice claim, it does not toll the two-year exception to the statute of limitations under MCL 600.5852.

Because Waltz is binding on this Court, we lack the authority to consider plaintiff‘s argument regarding legislative intent. See Assoc Builders & Contractors v Lansing, 499 Mich 177, 191; 880 NW2d 765 (2016) (“The Court of Appeals is bound to follow decisiоns by [our Supreme] Court except where those decisions have clearly been overruled or superseded“) (emphasis omitted). As for plaintiff‘s argument regarding Hardy and Omelenchuk, Waltz explicitly overruled Omelenchuk, see id., and Hardy predates Waltz, meaning we must follow Waltz, see Washington Mut Bank, FA v ShoreBank Corp, 267 Mich App 111, 119; 703 NW2d 486 (2005) (explaining that this Court is “obligated to follow the most recent ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍pronouncement of the Supreme Court on a principle of law.“).

Affirmed.

/s/ Thomas C. Cameron

/s/ Kristina Robinson Garrett

/s/ Philip P. Mariani

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