Mazumder v. University of Michigan Board of RegentsMazumder v. University of Michigan Board of Regents
Lead Opinion
In these consolidated appeals involving a wrongful death medical malpractice action, defendants appeal by leave granted an order of the trial court denying their motions for summary disposition pursuant to MCR 2.116(C)(7) on the grounds that plaintiffs action was time-barred.
i
This case is one of numerous appeals prompted by the Michigan Supreme Court’s decision in Waltz v Wyse,
In Waltz, the Supreme Court held that wrongful death actions filed by personal representatives under MCL 600.5852 were subject to the 182-day statutory waiting period for filing a medical malpractice action, MCL 600.2912b(l), but were not entitled to the concomitant 182-day statutory tolling of the limitations period under MCL 600.5856. Before the decision in Waltz, the bench and bar in Michigan, including a significant portion of this Court, generally functioned with the understanding that the notice period and the notice tolling provision operated together so that the two-year saving period permitted for filing a wrongful death action by a personal representative would be tolled during the 182-day waiting period. Consequently, after the decision in Ousley holding that Waltz applied retroactively, numerous cases pending in the lower courts were summarily dismissed as time-barred because the plaintiffs had filed the actions presuming a statutory tolling period, which under Waltz no longer applied. Like the proverbial deer in the headlights, the plaintiffs’ causes of action have been frozen in time and space by the retroactive application of Waltz by Ousley, leaving them with no recourse or remedy.
The legal fallout from the decision in Waltz has been significant. This Court has been presented with numerous appeals of nearly identical issues of time-bar dismissal, all disputing the correctness and reach of Waltz and its progeny. These issues have consumed inordinate time and effort on the part of the bench and bar at various levels. For defense counsel, Waltz and Ousley were essentially a windfall in pending cases. For the plaintiffs’ counsel, and their clients, the decisions had serious repercussions.
Viewing Waltz and Ousley as correct, the fact that so many members of this state’s bench and bar committed such rudimentary errors would be a discredit to the profession. Viewing Waltz or Ousley as incorrect, the fact that members of the bench and bar can ignore the inequities in these circumstances is a discredit to our sense of fairness and justice. Either way, permitting the summary dismissal of these legitimately filed claims is an indictment of our legal system, not merely the plaintiffs’ lawyers. The Supreme Court has generally recognized and applied equitable principles to avoid injustice in circumstances such as these. Bryant v Oakpointe Villa Nursing Ctr, Inc,
hi
Plaintiff Monika Mazumder filed this action as personal representative of the estate of the decedent, Deepika S. Mazumder, following Deepika’s death on June 3, 2000. According to plaintiffs complaint, Deepika committed suicide as a result of defendants’ negligence in treating her mental illness.
Personal representative letters of authority were issued for Deepika’s estate on May 2, 2002.
Waltz was decided on April 14,2004. Under the analysis in Waltz, plaintiffs action would be time-barred because Waltz held that the notice tolling provision, MCL 600.5856, did not toll the wrongful death saving period, MCL 600.5852, and therefore the saving period expired May 2, 2004, during the 182-day waiting period following her notice of intent. This Court subsequently held that Waltz applied retroactively; thus, the analysis in Waltz became applicable to plaintiff’s case. Ousley, supra at 494-495.
IV
Defendants argue that the trial court erred in denying their motions for summary disposition on the basis that plaintiff timely filed her complaint within the “five-year ceiling” permitted for filing a wrongful death action under MCL 600.5852. We agree for reasons discussed below.
Further, it seems clear that applying the analyses in Waltz and subsequent cases would result in the dismissal of plaintiffs case in hindsight because plaintiff could not meet the 182-day waiting period following her notice of intent, during which she was precluded from filing suit, and still file her complaint before the end of the two-year saving period under MCL 600.5852. However, given the widespread recognition within the bench and bar of notice tolling during the saving period before the decision in Waltz, and the injustice that results from ignoring that recognition, plaintiff is entitled to equitable relief. Bryant, supra at 432; Apsey v Mem Hosp (On Reconsideration),
A
Whether a period of limitations applies in particular circumstances constitutes a legal question that this Court considers de novo. Detroit v 19675 Hasse,
We [also] review de novo decisions regarding summary disposition motions. Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by the statute of limitations. In determining whether summary disposition was properly granted under MCR 2.116(C)(7), this Court “consider[s] all documentary evidence submitted by the parties, accepting as true the contents of the complaint unless affidavits or other appropriate documents specifically contradict them.” [Waltz, supra at 647-648, quoting Fane v Detroit Library Comm,465 Mich 68 , 74;631 NW2d 678 (2001).]
This Court considers de novo the applicability of equitable doctrines. Yankee Springs Twp v Fox,
B
The trial court denied defendants’ motions for summary disposition on the grounds that plaintiffs complaint was
MCL 600.5852 sets forth a saving period in which a personal representative may pursue a wrongful death action:
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.
The trial court reasoned that under the wrongful death saving provision, plaintiff had three years from the time she was issued letters of authority in which to file her complaint, or until June 3, 2005. However, as this Court noted in Farley v Advanced Cardiovascular Health Specialists, PC,
We note that the three-year ceiling in this provision does not establish an independent period during which a personal representative may bring suit. Specifically, it does not authorize a personal representative to file suit at any time within three years after the period of limitations has run. Rather, the three-year ceiling limits the two-year saving period to those cases brought within three years of when the malpractice limitations period expired. As a result, while the three-year ceiling can shorten the two-year window during which a personal representative may file suit, it cannot lengthen it.
Consequently, plaintiffs action is not saved by the three-year ceiling in MCL 600.5852, and the trial court erred in granting summary disposition on this basis.
c
The period of limitations applicable to a wrongful death action is generally the period applicable to the underlying theory of liability. Waltz, supra at 648. The limitations period for a medical malpractice action is two years from the date the claim first accrued.
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.
In 1993, the Legislature enacted a number of changes to the Revised Judicature Act, including a 182-day notice provision for medical malpractice actions, MCL 600.2912b(l), and a provision for tolling the period of limitations during the 182-day notice period, MCL 600.5856(d).
MCL 600.2912b(l) provides:
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.
MCL 600.5856 provides:
The statutes of limitations or repose are tolled:
(d) 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.[8]
Under the statutory scheme for notice, “filing a notice of intent to sue will toll any period of limitations or repose, if such period . . . would otherwise bar the claim, for the time set out in the written notice of intent provision (MCL 600.2912b[l]), that is, for a period not longer than 182 days.” Farley, supra at 572.
In Waltz, the Supreme Court held that the medical malpractice notice tolling provision did not toll the saving period under MCL 600.5852 for filing a wrongful death action:
Section 5856(d), by its express terms, tolls only the applicable “statute of limitations or repose.” As we recently stated in Miller [v Mercy Mem Hosp,466 Mich 196 , 202;644 NW2d 730 (2002)], the wrongful death provision, § 5852, “is a saving statute, not a statute of limitations.” (Emphasis supplied.) See also Lindsey v Harper Hosp [455
Mich 56, 60-61, 65;564 NW2d 861 (1997)], in which we explained that § 5852, as “the statute of limitations saving provision” and an “exception to the statute of limitations,” operated “to suspend the running of the statute until a personal representative is appointed to represent the interests of the estate.”
The plain language of § 5852 wholly supports our conclusion that it is not itself a “statute of limitations.” ... 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 commencementof a wrongful death action as many as three years after the applicable statute of limitations has expired. [Waltz, supra at 650-651.]
D
The parties do not dispute the timing of the following relevant events in this case: (1) The decedent died on June 3, 2000, after alleged acts of malpractice by defendants beginning on March 3, 2000; (2) the probate court issued letters of authority appointing a personal representative of the decedent’s estate on May 2, 2002;
Plaintiff filed suit on October 21, 2004, nearly six months after the expiration of the grace period for filing a medical malpractice action pursuant to the wrongful death saving statute. Under the analysis in Waltz and its progeny, plaintiffs complaint would be considered untimely. Waltz, supra at 651; Farley, supra at 573-575.
E
The decision in Waltz, and subsequent decisions, essentially retroactively foreclosed any statutory basis for tolling the two-year filing period in the saving statute, MCL 600.5852. Waltz was decided on April 14, 2004, less than two weeks before the notice of intent in this case on April 27, 2004, and less than three weeks before the two-year saving period expired on May 2, 2004. Under pre-Waltz decisions, our courts clearly applied the notice tolling provision to the two-year saving period in the wrongful death statute. Plaintiff proceeded accordingly in this case. If Waltz had not “eliminated” the tolling period, plaintiffs complaint, filed on October 21, 2004, would have been timely in light of the 182-day notice tolling provision. Given the timing of the Waltz decision, it was not possible for plaintiff to alter the course of the litigation to protect her right to a cause of action.
In rendering its decision in Waltz, the Supreme Court acknowledged that its earlier decision in Omelenchuk v City of Warren,
Although in Waltz the Court determined that the dates in Omelenchuk were miscalculated and should have been based on the
In addition to Omelenchuk, pre-Waltz published decisions of this Court similarly recognized tolling with respect to the required 182-day notice period.
Likewise, in Lentini v Urbancic,
If the date of issuance of the letters of authority is fixed as October 15, 1999, plaintiff had three days remaining under the statute of limitations when he tolled the running of the statutory period on October 12, 2001. The saving provision would give plaintiff three days to timely file his malpractice complaint when the tolling provision expired on April 12, 2002, or until April 15, 2002. But if the date of issuance of the letters of authority is deemed to be October 19, 1999, plaintiff had seven days remaining under the statute of limitations at the time it was tolled, and, therefore, when the tolling provision expired on April, 12, 2002, plaintiff had until April 19, 2002, to timely file his complaint. Plaintiff filed his complaint on April 17, 2002. Thus, whether plaintiffs complaint survives is wholly dependent on the date the letters of authority were “issued.” [Lentini, supra,262 Mich App 554 -555.]
No matter which date the letters of authority were considered “issued,” the Court recognized that the tolling period applied to the wrongful death saving statute. Pre-WaZfe decisions by lower courts likewise applied the tolling provision to the wrongful death saving provision.
Moreover, in Morrison, this Court addressed the statutory scheme for the notice of intent requirement, MCL 600.2912b, and the tolling provision, MCL 600.5856, as enacted under
In Morrison, the plaintiffs’ malpractice action arose on May 21, 1992, with respect to a childbirth; however, the plaintiffs provided their notice of intent on April 28, 1994, and filed their complaint on May 19,1994. Id. at 310. The defendants claimed that they were entitled to summary disposition because the plaintiffs failed to give the required 182-day notice. The Morrison Court held that although the plaintiffs failed to comply with the notice requirement, they could not be denied the tolling period, even though technically it did not apply to their cause of action, because “enforcement would vitiate an accrued medical malpractice claim without providing the potential plaintiff the benefit of the 182-day tolling provision.” Id. at 318. The Court held that the plaintiffs, as well as all similarly situated plaintiffs, were free to refile their suits following the dismissal of their actions. Id. at 319. Morrison clearly recognized that the Legislature’s
f
In this case, plaintiffs “untimely” filing was not due to her miscalculation of the applicable limitations period. Plaintiff relied on the courts’ repeated recognition and the general understanding among the bench and bar that tolling applied under the circumstances of this case.
The Supreme Court has generally recognized and applied equitable principles to avoid injustice in circumstances such as these. Bryant, supra at 432; Pohutski, supra at 698-699. Given this precedent, including the recognition in Waltz, supra at 655, that Omelenchuk “might be viewed as sanctioning application of the notice tolling provision to the wrongful death saving provision,” we find the equitable principles applied by Justice MARKMAN in Bryant, supra at 432, a proper basis for reinstating plaintiffs action. In this case, as in Bryant, “[p]laintiff s failure to comply with the applicable statute of limitations is the product of an understandable confusion about the legal nature of her claim, rather than a negligent failure to preserve her rights.” Id.
The fact that the language of the statute plainly refers to a “statute of limitations” or a “statute of repose,” see Waltz, supra at 651, 655, does not change this result. In Pohutski, considering similar equities, Justice CORRIGAN, writing for the majority, obtained a similar result under the same reasoning. The Court held that “the plain language of the governmental tort liability act does not contain a trespass-nuisance exception to governmental immunity,” but nonetheless determined that it would be inequitable to apply the holding to pending cases. Id. at 689-690. Justice CORRIGAN concluded:
Thus, if we applied our holding in this case retroactively, the plaintiffs in cases currently pending would not be afforded relief under Hadfield [v Oakland Co Drain Comm’r,430 Mich 139 ;422 NW2d 205 (1988)] or2001 PA 222 . Rather, they would become a distinct class of litigants denied relief because of an unfortunate circumstance of timing.
Accordingly, this decision will be applied only to cases brought on or after April 2, 2002. In all cases currently pending, the interpretation set forth in Hadfield will apply.
[.Pohutski, supra at 698-699.]
Although Justice CORRIGAN’S statements were made in the context of retroactivity, there is no principled basis for failing to similarly uphold the “administration of justice” in this case. Id. at 699; see also Gladych, supra at 606. The equities do not change merely because of the nature of the action. Plaintiffs circumstances are no less worthy of equity, fairness, or justice with respect to her right of action.
Even absent this Supreme Court precedent, the doctrine of judicial or equitable tolling should be invoked to prevent the unjust forfeiture of plaintiffs cause of action. Ward, supra at 520. In
“The time requirements in lawsuits between private litigants are customarily subject to equitable tolling if such tolling is necessary to prevent unfairness to a diligent plaintiff.” 51 Am Jur 2d, Limitation of Actions, § 174, p 563. “In order to serve the ends of justice where technical forfeitures would unjustifiably prevent a trial on the merits, the doctrine of equitable tolling may be applied to toll the running of the statute of limitations, provided it is in conjunction with the legislative scheme.” 54 CJS, Limitations of Actions, § 86, p 122....
This Court in United States Fidelity & Guaranty Co v Amerisure Ins Co,195 Mich App 1 , 6;489 NW2d 115 (1992), noted that “Michigan and federal case law provides precedent for the principle that limitation statutes are not entirely rigid, allowing judicial tolling under certain circumstances[.]”
Equitable tolling has been applied where “the plaintiff actively pursued his or her judicial remedies by filing a defective pleading during the statutory period or the claimant has been induced or tricked by the defendant’s misconduct into allowing the filing deadline to pass.” Am Jur 2d, supra at 563. While equitable tolling applies principally to situations in which a defendant actively misleads a plaintiff about the cause of action or in which the plaintiff is prevented in some extraordinary way from asserting his rights, the doctrine does not require wrongful conduct by a defendant. Id. at 564. An element of equitable tolling is that a plaintiff must exercise reasonable diligence in investigating and bringing his claim. Id. at § 175, p 564. {Id. at 517-520.]
The doctrine of equitable or judicial tolling “must and should be rarely invoked” only “to ensure fundamental practicality and fairness and to prevent the unjust technical forfeiture of a cause of action . ...” Id. at 520; see also Apsey, supra at 681-682. Such circumstances exist in this case.
Although the Supreme Court recently reversed the majority decision in Ward in lieu of granting leave to appeal for the reasons stated in the dissent in Ward, see
Plaintiffs failure to comply with the statute of limitations was the product of an understandable misinterpretation of the notice tolling provision, resulting from not only the appellate courts’ interpretation of the statutes at issue, but also from the presumed legislative intent. We hold that plaintiff is entitled to equitable relief. Accordingly,
V
Regardless of whether the decision in Waltz reached a correct result reading the plain language of MCL 600.5856, this result could not have been intended by the Legislature. In this case, as in Morrison, plaintiff is subject to the notice provision, but not the tolling provision, which is contrary to the legislative intent as set forth in Morrison. The notice of intent tolling provision, MCL 600.5856, should apply to the wrongful death saving period, MCL 600.5852, because it is the only way to harmonize the statutes and thereby effectuate the plain enactments of the Legislature.
In effect, Waltz established a judicial obstacle to a cause of action that the Legislature established pursuant to the strict requirement of a 182-day waiting period to file a medical malpractice action. The 182-day waiting period is used as a sword to shorten the two-year saving period. Wrongful death medical malpractice actions are generally time-consuming and difficult to evaluate; personal representatives should at least have the benefit of the two-year minimal period for filing a cause of action that the Legislature has determined is appropriate for medical malpractice actions generally. We urge the Legislature to respond legislatively to restore the two-year saving period for a wrongful death cause of action to eliminate confusion.
Affirmed.
Notes
Drs. Mohamed Aziz and Stephan F. Taylor appeal by leave granted in Docket No. 261331, and Washtenaw County Community Mental Health; Moonson R. Elliott Eninsche, B.A., R.S.W, C.S.M.; and Richard Pfoutz, M.S.W, C.S.W, appeal by leave granted in Docket No. 261333.
See also Forsyth v Hopper,
Not only were the cases dismissed, but the grounds of dismissal call into question the adequacy of counsel's representation; a statute of limitations error on the part of trial counsel is the most rudimentary error.
Although plaintiff apparently is the successor personal representative, she relies on the date the initial personal representative, Bhaskar Mazumder, was appointed.
The number of days from April 27, 2004, to May 2, 2004, added to the 182 days.
The six-month discoveiy rule, MCL 600.5838a(2), does not apply in this case.
Effective March 31, 2003, former MCL 600.5805(5) was renumbered as subsection 6.
8 Effective April 22, 2004, MCL 600.5856 was amended, relettering subsection d as c, and making other changes that do not affect this appeal.
Plaintiff argues that the wrongful death saving provision in MCL 600.5852 began to run on May 2, 2002, the date that her predecessor personal representative, Bhaskar Mazumder, was issued letters of authority. Plaintiff does not argue that the wrongful death saving period should recommence on the date that she received letters of authority appointing her as the successor personal representative, and thus we do not address this consideration.
A review of both published and unpublished decisions in which this Court recognized that tolling applied during the statutory notice period reveals that at least 17 members of this Court presumed that tolling applied to the wrongful death saving statute. Fournier v Mercy Community Health Care System-Port Huron,
The number of recent and pending appeals presenting nearly identical issues of time-bar dismissal in the context of the wrongful death saving provision, MCL 600.5852, is further evidence of this general understanding.
Concurrence Opinion
(concurring in part and dissenting in part). I agree with the majority that our Supreme Court’s decision in Waltz v Wyse,
As noted by the majority, this case stems from the June 3, 2000, death of plaintiffs decedent, who committed suicide allegedly as a result of malpractice by defendants. Regarding the application of the principles of equity, plaintiffs sole argument on appeal is that summary disposition of the wrongful death medical malpractice suit subsequently brought by her as personal representative of the decedent’s estate was properly denied because, “[a]t the time [her] cause of action arose . .., Omelenchuk [c City of Warren,
Well before the decedent’s death, our Supreme Court, in Lindsey v Harper Hosp,
Several years later, and only shortly before the death of plaintiffs decedent, our Supreme Court released its decision in Omelenchuk, supra at 571-577, in which it addressed whether the notice tolling provision of MCL 600.5856(d) tolled the period of limitations for a medical practice claim for a full 182 days, or only 154 days, when a medical malpractice claimant does not receive a written response to the notice of intent required by MCL 600.2912b. Declining to rewrite MCL 600.2912b, the Court held that while the statute allows the 182-day “no suit” waiting period to be “reduced to [154] days if the [defendant] fails to respond to the notice,” the two-year limitations period applicable to a claim for medical malpractice nonetheless remains tolled in such circumstances for the full 182 days. Id. at 573, 575. In applying its holding, however, the Court calculated the “limitation period” at issue as beginning on the date of the appointment of the decedent’s personal representative, rather than the date of the accrual of the claim. Id. at 577 (emphasis added). After then applying the notice tolling provision of MCL 600.5856(d) to this period, the Court reversed this Court’s conclusion that the plaintiffs claim was time-barred. Id. at 577-578.
Approximately two years after the Court’s decision in Omelenchuk, plaintiff was issued, on May 2, 2002, letters of authority appointing her personal representative of the decedent’s estate. Although acknowledging that MCL 600.5852 expressly afforded her a period of two years from that date in which to file her claim, plaintiff asserts that the Supreme Court’s holding in Omelenchuk provided her a reasonable basis to presume that this period could be extended by the notice tolling provision of MCL 600.5856(d). However, during the month following plaintiff s appointment as personal representative, the Supreme Court issued its opinion in Miller v Mercy Mem Hosp,
Two years after Miller was decided, and just weeks before plaintiff served defendants with notice of her intent to file a medical malpractice claim on April 27, 2004, the Court released its decision in Waltz, supra at 644, 650, in which it expressly addressed the question at issue here, i.e., whether MCL 600.5856(d) tolls the two-year period for commencing a wrongful death action provided for under MCL 600.5852. Noting that it “ ‘need look no further than the language of the tolling statute to resolve this issue,’ ” the Court in Waltz held that the notice of intent tolling provision of MCL 600.5856(d) does not toll the two-year period for commencing an action as personal representative of a decedent’s estate provided for by MCL 600.5852, but, “by its express terms, tolls only the applicable ‘statute of limitations or repose.’ ” Id. at 649-650, quoting Waltz v Wyse, unpublished opinion per curiam of the Court of Appeals, issued October 1, 2002 (Docket No. 231324), slip op at 2, and MCL 600.5856(d). As support for its conclusion in this regard, the Court recalled its earlier pronouncements in both Miller and Lindsey that MCL 600.5852 is not itself a statute of limitations, but rather is a “ ‘statute of limitations saving provision’ and an ‘exception to the statute of limitations’ . ...” Id. at 650, quoting Lindsey, supra at 61, 65. With respect to its characterization of MCL 600.5852 as creating a “limitation period” in Omelenchuk, the Court acknowledged that its “imprecise choice of words” in resolving the question before it in that case had resulted in some confusion. Waltz, supra at 653-654. The Court noted, however, that its “passing references to § 5852 as creating a ‘limitation period,’ ” as well as its mistaken calculations of time in applying its holding were unnecessary to resolution of the issue in Omelenchuk. Id. at 653-655.
Relying on Waltz, defendants sought summary disposition of the medical malpractice claims alleged by plaintiff in the wrongful death action filed by her on October 21, 2004. At about that same time, a panel of this Court approved for publication its decision in Ousley v McLaren,
The trial court here found both Waltz and Ousley to be distinguishable on the grounds that the plaintiffs in those cases failed to file an action within the five-year outside limit set by MCL 600.5852. To the extent the majority concludes that the trial court erred in denying defendants’ motions on these grounds, and that application of Waltz and its progeny renders plaintiffs complaint untimely, I concur. See ante at 49-50, 53-54.1 do not agree, however, that the doctrine of equitable tolling is available to remedy the dismissal required by these conclusions.
The doctrine of equitable, or judicial, tolling may be applied to toll the running of a period of limitations in the interests of justice. See 51 Am Jur 2d, Limitation of Actions, § 174, p 563-564. Proper application of the doctrine, however, is limited to those instances in which a plaintiff has exercised reasonable diligence in pursuing a claim, but “is prevented in some extraordinary way from asserting his or her rights.” Id. at 564. Here, plaintiff maintains that she reasonably relied on Omelenchuk to conclude that the notice tolling provisions of MCL 600.5856(d) apply to the period for commencing a wrongful death action under MCL 600.5852. However, as recognized by the courts in both Waltz and Ousley, any such implication by the Court in Omelenchuk was expressed in dicta that clearly contradicted the clear and unambiguous language employed in MCL 600.5856(d) and MCL 600.5852, as well as the characterization of MCL 600.5852 as a statute of limitations “saving provision” and an “exception” to the statute of limitations in Lindsey, which was decided before Omelenchuk, and in Miller, which was decided after Omelenchuk. Waltz, supra at 650; Ousley, supra at 492, 494-495. Under such circumstances, it cannot be said that plaintiff exercised reasonable diligence in the timely pursuit of her claim, in choosing to rely on Omelenchuk to afford the relevant statutes a broad interpretation not supported by the plain language of the statute, such that the interests of justice require application of the doctrine of equitable tolling. Indeed, as recognized by the Court in Waltz, supra at 650-651, and again by this Court in Ousley, supra at 495, a diligent and reasonable reading of the relevant precedents and statutory language plainly advises that a medical malpractice plaintiffs filing of a notice of intent to sue does not toll the wrongful death saving provision. Consequently, I do not believe that application of the doctrine of equitable tolling is warranted in this case.
Further, I disagree with the majority’s conclusion that “equitable principles compel [our] affirmance” in this matter because “[pjlaintiff relied on the courts’ repeated recognition and the general understanding among the bench and bar that tolling applied under the circumstances of this case.” Ante at 59. Setting aside the fact that plaintiff herself makes no such claim, but simply argues that Omelenchuk was controlling precedent, I nonetheless would conclude that even if this case were as the majority alleges, equitable tolling is not a remedy to which the plaintiff here, or
In Bryant v Oakpointe Villa Nursing Ctr, Inc,
The Court, however, recently clarified the limits of this equitable power in Devillers v Auto Club Ins Ass’n,
[I]n Bryant, there was no controlling statute negating the application of equity. Instead the disputed issue in Bryant — whether a claim sounds in medical malpractice or ordinary negligence — was controlled by this Court’s case law. On the other hand, in the present case, there is a statute that controls the recovery of PIP benefits: § 3145(1). Section 3145(1) specifically states that a claimant “may not recover benefits for any portion of the loss incurred more than 1 year before the date on which the action was commenced,” and this Court lacks the authority to say otherwise.
As in Devillers, an application of the doctrine of equitable tolling here would result in the “categorical redrafting” of the plain and unambiguous language employed in both MCL 600.5856(d) and MCL 600.5852. Therefore, such relief is beyond the authority of this Court.
Additionally, I note that although developed to alleviate an unjustly harsh result arising from the strict application of a statute of limitations, equitable tolling is a fact-based remedy driven by the unique circumstances of an individual case. See Keenan v Bagley,
For all these reasons, and because to apply the doctrine of equitable tolling here is to afford Waltz only prospective application, I respectfully dissent from the majority’s conclusion that the doctrine may validly be applied to uphold the trial court’s denial of summary disposition in favor of defendants.
As recognized by the majority, MCL 600.5856 was amended by
Despite my disagreement with the majority concerning the application of equitable tolling, I fully agree that the issues arising from Waltz “have consumed inordinate time and effort on the part of the bench and bar at various levels.” Ante at 46. In this Court, the recent decision of Mullins v St Joseph Mercy Hosp,