MARY ARMIJO v. BRONSON METHODIST HOSPITAL, BRIAN DYKSTRA, M.D., WILLIAM NICHOLS, JR., D.O., ASCENSION ALLEGAN HOSPITAL, and MARTIN FREEMAN, M.D., and ANDREW FORSYTH, M.D.
No. 358728
No. 358729
STATE OF MICHIGAN COURT OF APPEALS
January 19, 2023
FOR PUBLICATION
REDFORD, J.
Defendants, Andrew Forsyth, M.D., Bronson Methodist Hospital, Brian Dykstra, M.D., and William Nichols, Jr., D.O., appeal by interlocutory leave granted1 in this consolidated appeal2 the trial court‘s order denying their motions to dismiss this matter pursuant to
I. BACKGROUND
For the purposes of this appeal, the facts about the underlying medical care that plaintiff received from defendants are undisputed. On February 23, 2018, plaintiff presented to the Emergency Department at Ascension Allegan Hospital with congestion, cough, headache, sore throat, and fever. After evaluation, blood tests, and administration of a pain killer and corticosteroid, the hospital discharged her with instruction to follow up with her primary care physician. On February 25, 2018, plaintiff‘s husband found her unresponsive and took her back to the hospital emergency which transferred her to Bronson Methodist Hospital where she was diagnosed and received various treatments for sepsis with shock that developed into multisystem organ failure.3 Bronson Methodist Hospital transferred plaintiff to the University of Michigan where she underwent multiple surgical and other medical procedures.
On February 19, 2020, as required under
On March 10, 2020, after plaintiff filed her notice of intent, Michigan Governor Gretchen Whitmer entered Executive Order 2020-4, which declared a state of emergency related to the COVID-19 pandemic. On March 23, 2020, our Supreme Court entered Administrative Order No. 2020-3, 505 Mich lxxxvi (2020), which stated:
In light of the continuing COVID-19 pandemic and to ensure continued access to courts, the Court orders that: For all deadlines applicable to the commencement of all civil and probate case-types, including but not limited to the deadline for the initial filing of a pleading under
MCR 2.110 or a motion raising a defense or an objection to an initial pleading underMCR 2.116 , and any statutory prerequisites to the filing of such a pleading or motion, any day that falls during the state of emergency declared by the Governor related to COVID-19 is not included for purposes ofMCR 1.108(1) .This order is intended to extend all deadlines pertaining to case initiation and the filing of initial responsive pleadings in civil and probate matters during the state of emergency declared by the Governor related to COVID-19. Nothing in this order precludes a court from ordering an expedited response to a complaint or motion in order to hear and resolve an emergency matter requiring immediate attention. We continue to encourage courts to conduct hearings remotely using two-way interactive video technology or other remote participation tools whenever possible.
This order in no way prohibits or restricts a litigant from commencing a proceeding whenever the litigant chooses. Courts must have a system in place to allow filings without face-to-face contact to ensure that routine matters, such as filing of estates in probate court and appointment of a personal representative in a decedent‘s estate, may occur without unnecessary delay and be disposed via electronic or other means.
On May 1, 2020, our Supreme Court entered Amended Administrative Order No. 2020-3, 505 Mich lxxiv (2020), which provided:
On order of the Court, the following amendment of Administrative Order No. 2020-3 is adopted, effective immediately.
[Additions to the text are indicated in underlining]
In light of the continuing COVID-19 pandemic and to ensure continued access to courts, the Court orders that:
For all deadlines applicable to the commencement of all civil and probate case-types, including but not limited to the deadline for the initial filing of a pleading under
MCR 2.110 or a motion raising a defense or an objection to an initial pleading underMCR 2.116 , and any statutory prerequisites to the filing of such a pleading or motion, any day that falls during the state of emergency declared by the Governor related to COVID-19 is not included for purposes ofMCR 1.108(1) .This order is intended to extend all deadlines pertaining to case initiation and the filing of initial responsive pleadings in civil and probate matters during the state of emergency declared by the Governor related to COVID-19. Nothing in this order precludes a court from ordering an expedited response to a complaint or motion in order to hear and resolve an emergency matter requiring immediate attention. We continue to encourage courts to conduct hearings remotely using two-way interactive video technology or other remote participation tools whenever possible.
This order in no way prohibits or restricts a litigant from commencing a proceeding whenever the litigant chooses, nor does it suspend or toll any time period that must elapse before the commencement of an action or proceeding. Courts must have a system in place to allow filings without face-to-face contact
to ensure that routine matters, such as filing of estates in probate court and appointment of a personal representative in a decedent‘s estate, may occur without unnecessary delay and be disposed via electronic or other means.
On June 12, 2020, our Supreme Court entered Administrative Order No. 2020-18, 505 Mich lxxxviii (2020), rescinding its previous administrative order as follows:
In Administrative Order No. 2020-3, the Supreme Court issued an order excluding any days that fall during the State of Emergency declared by the Governor related to COVID-19 for purposes of determining the deadline applicable to the commencement of all civil probable case types under
MCR 1.108(1) . Effective Saturday, June 20, 2020, that administrative order is rescinded, and the computation of time for those filings shall resume. For time periods that started before Administrative Order No. 2020-3 took effect, the filers shall have the same number of days to submit their filings on June 20, 2020, as they had when the exclusion went into effect on March 23, 2020. For filings with time periods that did not begin to run because of the exclusion period, the filers shall have the full periods for filing beginning on June 20, 2020. [4]
On December 14, 2020, plaintiff filed her complaint in the instant case. In July 2021, defendants moved for summary disposition pursuant to
applied to deadlines that occurred during the state of emergency, and did not apply to the deadlines in the instant case. Finally, defendants argued that the administrative orders did not apply to this case because plaintiff‘s notice of intent commenced a tolling period before the state of emergency, so it did not make sense to toll the case twice at once.
Plaintiff opposed defendants’ motions for summary disposition by arguing that the Supreme Court had the authority to issue the administrative orders and that defendants incorrectly interpreted the administrative orders. Defendants replied, arguing that plaintiff‘s interpretation of the Amended AO 2020-3 illogically contradicted the plain language of the amendment.
On September 2, 2021, the trial court held a hearing on defendants’ motions for summary disposition at which the parties reiterated the points made in their briefs.
II. STANDARD OF REVIEW
We review de novo a circuit court‘s summary disposition decision. Carmichael v Henry Ford Hosp, 276 Mich App 622, 624; 742 NW2d 387 (2007). “Whether a period of limitations applies in particular circumstances constitutes a legal question that this Court also considers de novo.” Id. (citation omitted). “Under
III. ANALYSIS
The period of limitations for medical malpractice actions is controlled by statute. Miller v Mercy Mem Hosp Corp, 466 Mich 196, 199; 644 NW2d 730 (2002). The limitations period for a malpractice action is two years.
Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.
The statutes of limitations or repose are tolled . . . [a]t the time notice is given in compliance with the applicable notice period under
MCL 600.2912b , if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute 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.
Our Supreme Court issued the aforementioned administrative orders in relation to the state of emergency Governor Whitmer declared because of the COVID-19 pandemic. Defendants assert four grounds for reversing the trial court‘s denial of their motion: (1) the judiciary lacks the authority to modify a legislatively enacted statute of limitations; (2) assuming the judiciary has emergency authority, the plain language of the orders applied only to deadlines that occurred during the state of emergency; (3) to the extent that the language of the tolling orders is interpreted to apply outside of a state of emergency, even emergency powers do not give the judiciary the power to change a statutory deadline that fell outside of the state of emergency, and (4) even if the COVID-19 tolling orders are interpreted as modifying deadlines outside of the statute of limitations, they had no impact on this case because COVID-19 tolling overlapped entirely with tolling already provided by plaintiff‘s service of her notice of intent, and no basis
Because we find the plain language of our Supreme Court‘s administrative orders dispositive, we decline to address the other issues raised by defendants. We “will not unnecessarily decide constitutional issues, People v Riley, 465 Mich 442, 447; 636 NW2d 514 (2001), and it is an undisputed principle of judicial review that questions of constitutionality should not be decided if the case may be disposed of on other grounds. MacLean v Mich State Bd of Control for Vocational Ed, 294 Mich 45, 50; 292 NW 662 (1940).” J & J Const Co v Bricklayers and Allied Craftsmen, Local 1, 468 Mich 722, 734; 664 NW2d 728 (2003). As a result, we do not address for purposes of this appeal whether our Supreme Court had authority to enter the administrative orders at issue in this case.
In Administrative Order No. 2020-3, 505 Mich lxxxvi (2020), our Supreme Court stated that it “intended to extend all deadlines pertaining to case initiation in civil . . . matters during the state of emergency declared by the Governor related to COVID-19” but did not prohibit or restrict a litigant from commencing an action. Then, in Amended Administrative Order No. 2020-3, 505 Mich lxxiv (2020), our Supreme Court in relevant part stated:
This order in no way prohibits or restricts a litigant from commencing a proceeding whenever the litigant chooses, nor does it suspend or toll any time period that must elapse before the commencement of an action or proceeding. [Emphasis added.]
The language of the initial administrative order expressed our Supreme Court‘s intent to extend statutory deadlines for filing civil matters during the state of emergency. In its amended
order, it again stated it ” . . . intended to extend all deadlines pertaining to case initiation . . . during the state of emergency . . .” It also added language, however, and specifically clarified that its order did not suspend or toll any time period that must elapse before the commencement of an action. The amended administrative order‘s clarification plainly indicated that a statutory period, such as the 182-day notice period specified in
The principles that apply to statutory construction apply equally to our interpretation of court rules. Green v Ziegelman, 282 Mich App 292, 301; 767 NW2d 660 (2009). Our goal in interpreting a court rule is to give effect to the intent of the Supreme Court, the drafter of the rules. Vyletel-Rivard v Rivard, 286 Mich App 13, 21; 777 NW2d 722 (2009). Because the administrative orders were promulgated by our Supreme Court, as are the court rules, similar rules of construction should apply. The first step in interpreting an administrative order requires analyzing the language used because the words contained therein are the most reliable evidence of the drafters’ intent. Green, 282 Mich App at 301. We must consider the administrative order in its entirety in order to produce a harmonious whole. Henry v Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009). If the administrative order‘s language is plain and unambiguous, then judicial construction is not permitted and it must be applied
In this case, the parties do not dispute that plaintiff‘s medical malpractice claims against these defendants accrued on March 6, 2018. Plaintiff gave defendants notice of her intent to file a medical malpractice action on February 19, 2020, as required under
Because Amended Administrative Order No. 2020-3, 505 Mich lxxiv (2020) clarified that the notice period continued to run and because the administrative orders by their language only applied to deadlines which took place during the state of emergency, August 19, 2020, was the earliest date on which plaintiff could commence her medical malpractice action. Under
Reversed and remanded for further proceedings consistent with this opinion. We do not retain jurisdiction.
/s/ James Robert Redford
/s/ Michael J. Riordan
/s/ Jane E. Markey
Notes
Note that although the order regarding computation of days entered on March 23, 2020, it excluded any day that fell during the State of Emergency declared by the Governor related to COVID-19, which order was issued on March 10, 2020. Thus, the practical effect of Administrative Order No. 2020-3 was to enable filers to exclude days beginning March 10, 2020. This timing is consistent with the executive orders entered by the Governor regarding the tolling of statutes of limitation. [AO 2020-18, 505 Mich at lxxxviii-lxxxvix.]