MAZUMDER v UNIVERSITY OF MICHIGAN BOARD OF REGENTS
Docket Nos. 261331, 261333
Michigan Court of Appeals
February 23, 2006
270 MICH APP 42
Submitted December 6, 2005, at Lansing. Leave to appeal sought.
The Court of Appeals held:
1. The trial court erred by denying the defendants’ motions on the basis of
2. The trial court, nonetheless, did not err by denying the defendants’ motion. The principles of equity require affirmance under the circumstances of this case. The plaintiff is entitled to equitable relief, given the widespread recognition within the bench and bar before Waltz that, under Omelenchuk v City of Warren, 461 Mich 567 (2000), the notice tolling provision applied to the wrongful death saving provision and the injustice that results from ignoring that recognition. Waltz was decided less than two weeks before the plaintiff filed her notice of intent and less than three weeks before the wrongful death saving period expired. Before Waltz, the plaintiff‘s complaint would have been timely because the courts applied the notice tolling provision to the saving period. When Waltz “eliminated” this tolling, it was impossible for the plaintiff to alter the course of her litigation to protect her right to a cause of action. No principled basis exists for denying the plaintiff her right to proceed with her pending action. The plaintiff‘s “untimely” filing was not due to her miscalculation of the applicable limitations period. She relied on the courts’ repeated recognition that tolling applied under the circumstances of this case. The doctrine of equitable or judicial tolling should be rarely invoked only to ensure fundamental practicality and fairness and to prevent the unjust technical forfeiture of a cause of action. There is no indication in this case that the timing of the plaintiff‘s complaint resulted from a negligent failure. Rather, it was the product of confusion among the bench and bar concerning the existing law and an understandable misinterpretation of the notice tolling provision.
Affirmed.
HOEKSTRA, P.J., concurring in part and dissenting in part, agreed that Waltz retroactively foreclosed any statutory basis for tolling the two-year saving period, but dissented from the conclusion that the doctrine of equitable tolling may be applied in this case. Legal considerations and a diligent reading of the relevant precedents preclude application of equitable principles. Equitable or judicial tolling may be applied to toll the running of a period of limitations in the interests of justice, but application is limited to instances in which a plaintiff has exercised reasonable diligence in pursuing a claim but is prevented in some extraordinary way from exercising his or her rights. The plaintiff‘s reliance on dicta in Omelenchuk that contradicted clear statutory language and other cases is not reasonable diligence. The doctrine of equitable tolling cannot be used to categorically redraft a plain and unambiguous statute. Moreover, equitable tolling is a fact-based remedy driven by the unique circumstances of an individual case. When the alleged inequity or injustice arises from the judicial pronouncement of a rule of law that applies broadly across a class of cases, the proper remedy lies in a determination of whether the rule operates retroactively or only prospectively. That issue has already been
Blaske & Blaske, P.L.C. (by Thomas H. Blaske and John F. Turck IV), for Monika Mazumder.
Hebert, Eller & Chandler, P.L.L.C. (by Kevin P. Hanbury), for Mohamed Aziz, M.D.; and Stephan F. Taylor, M.D.
O‘Connor, DeGrazia, Tamm & O‘Connor, P.C. (by Julie McCann O‘Connor, Richard M. O‘Connor, and Audrey J. Forbush) for Srinibas Mahapatra, M.D.
Yockey Yockey & Schliem (by John A. Klarr) for Washtenaw County Community Mental Health, Moonson R. Elliott Eninsche, and Richard Pfoutz.
Before: HOEKSTRA, P.J., and NEFF and DAVIS, JJ.
NEFF, J. 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
I
This case is one of numerous appeals prompted by the Michigan Supreme Court‘s decision in Waltz v Wyse, 469 Mich 642, 648-650; 677 NW2d 813 (2004), and,
II
In Waltz, the Supreme Court held that wrongful death actions filed by personal representatives under
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.3
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
III
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 plaintiff‘s 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, 2002.4 Plaintiff filed a notice of intent for the medical malpractice action on April 27, 2004, and subsequently filed her complaint on October 21, 2004. Presuming that the saving period was tolled during the 182-day notice period, plaintiff calculated that she had the remainder of the two-year saving period in which to file her complaint, and thus the complaint was timely filed.5
Waltz was decided on April 14, 2004. Under the analysis in Waltz, plaintiff‘s action would be time-barred because Waltz held that the notice tolling provision,
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
Further, it seems clear that applying the analyses in Waltz and subsequent cases would result in the dismissal of plaintiff‘s 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
A
Whether a period of limitations applies in particular circumstances constitutes a legal question that this
We [also] review de novo decisions regarding summary disposition motions. Under
This Court considers de novo the applicability of equitable doctrines. Yankee Springs Twp v Fox, 264 Mich App 604, 611; 692 NW2d 728 (2004).
B
The trial court denied defendants’ motions for summary disposition on the grounds that plaintiff‘s complaint was timely filed in light of what the court perceived as a “five-year ceiling” in
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.
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, plaintiff‘s action is not saved by the three-year ceiling in
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.6
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.
Accordingly, “a personal representative may file a medical malpractice suit on behalf of a deceased person for two years after letters of authority are issued, as long as that suit is commenced within three years after the two-year malpractice limitations period expired.” Farley, supra at 572-573.
In 1993, the Legislature enacted a number of changes to the Revised Judicature Act, including a 182-day notice provision for medical malpractice actions,
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:
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(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 (
In Waltz, the Supreme Court held that the medical malpractice notice tolling provision did not toll the saving period under
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 commencement of 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;9 and (3) the personal representative gave defendants notice of the estate‘s intent to pursue medical malpractice claims against them on April 27, 2004.
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
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,
In rendering its decision in Waltz, the Supreme Court acknowledged that its earlier decision in Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d 177 (2000), “might be viewed as sanctioning application of the notice tolling provision to the wrongful death saving provision,” and to that extent overruled Omelenchuk. Waltz, supra at 655. In Omelenchuk, supra at 577, a unanimous Court referred to
Although in Waltz the Court determined that the dates in Omelenchuk were miscalculated and should have been based on the accrual date of the cause of action, February 13, 1994, rather than on the date the personal representative was appointed, February 14, 1994, the fact remains that Omelenchuk undeniably applied the tolling provision to the wrongful death saving provision, even if contrary to the plain language of the statute. The bench and bar subsequently relied on the analysis in Omelenchuk and the dates as calculated. See, e.g., Waltz v Wyse, unpublished opinion per curiam of the Court of Appeals, issued October 1, 2002 (Docket No. 231324), slip op, p 3 n 2 (“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 periods that started when the personal representative was appointed....“).
In addition to Omelenchuk, pre-Waltz published decisions of this Court similarly recognized tolling with respect to the required 182-day notice period.10 In
Likewise, in Lentini v Urbancic, 262 Mich App 552; 686 NW2d 510 (2004), vacated and remanded, 472 Mich
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 plaintiff‘s 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-Waltz decisions by lower courts likewise applied the tolling provision to the wrongful death saving provision.
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 intent was that the 182-day notice provision would be counterbalanced by the 182-day tolling provision. Id. at 315-316.
In this case, plaintiff‘s “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.11 Accordingly, in keeping with established precedent, equitable principles compel affirmance.
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 plaintiff‘s 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 excep-
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)] or 2001 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. Plaintiff‘s 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 plaintiff‘s cause of action. Ward, supra at 520. In Ward, this Court set forth the principles of equitable or judicial tolling:
“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....
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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[.]”
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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 474 Mich 917 (2005), the Ward dissent did not eschew the doctrine of equitable tolling, but concluded that it
Plaintiff‘s 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, we affirm the trial court‘s order denying defendants’ motions for summary disposition pursuant to
V
Regardless of whether the decision in Waltz reached a correct result reading the plain language of
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.
DAVIS, J., concurred.
HOEKSTRA, P.J. (concurring in part and dissenting in part). I agree with the majority that our Supreme Court‘s decision in Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004), “retroactively foreclosed any statutory basis for tolling the two-year filing period in the saving statute,
As noted by the majority, this case stems from the June 3, 2000, death of plaintiff‘s decedent, who committed suicide allegedly as a result of malpractice by defendants. Regarding the application of the principles of equity, plaintiff‘s sole argument on appeal is that summary disposition of the wrongful death medical malpractice suit subsequently brought by her as per
Well before the decedent‘s death, our Supreme Court, in Lindsey v Harper Hosp, 455 Mich 56, 58-59; 564 NW2d 861 (1997), addressed whether the two-year period set forth in
Several years later, and only shortly before the death of plaintiff‘s decedent, our Supreme Court released its decision in Omelenchuk, supra at 571-577, in which it addressed whether the notice tolling provision of
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
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
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, 264 Mich App 486; 691 NW2d 817 (2004), in which it addressed whether the Supreme Court‘s decision in Waltz met the requirements for exception from the general rule that judicial decisions are to be given complete retroactive effect. In answering this question, the panel noted that for the exception to apply, the decision must either overrule clear and un
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
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
Further, I disagree with the majority‘s conclusion that “equitable principles compel [our] affirmance” in
In Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432-433; 684 NW2d 864 (2004), our Supreme Court applied the principles underlying the doctrine of equitable tolling to permit the plaintiff to proceed with medical malpractice claims filed by her as claims of ordinary negligence outside the period established by
The Court, however, recently clarified the limits of this equitable power in Devillers v Auto Club Ins Ass‘n, 473 Mich 562, 590 n 65; 702 NW2d 539 (2005), in which,
[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
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, 400 F3d 417, 421 (CA 6, 2005) (the applicability of equitable tolling must be decided on a case-by-case basis). In contrast, where, as here, the alleged inequity or injustice arises from the judicial pronouncement of a rule of law, and thus applies broadly across a class of cases, the proper remedy lies in the determination whether the rule announced is to operate retroactively or only