715 N.W.2d 96 | Mich. Ct. App. | 2006
Monika MAZUMDER, Personal Representative of the Estate of Deepika S. Mazumder, Deceased, Plaintiff-Appellee/Cross-Appellee,
v.
UNIVERSITY OF MICHIGAN BOARD of REGENTS, Robert A. Koepke, Ph. D., Rajiv Tandon, M.D., Satoshi Minoshima, M.D., Washtenaw County Community Mental Health, Joseph Yaroch, M.D., Moonson R. Elliott Eninsche, B.A., R.S.W., C.S.M., And Richard Pfoutz, M.S.W., C.S.W., Defendants, and
Mohamed Aziz, M.D., and Stephan F. Taylor, M.D., Defendants-Appellants, and
Srinibas Mahapatra, M.D., Defendant-Cross-Appellant.
Monika Mazumder, Personal Representative of the Estate of Deepika S. Mazumder, Deceased, Plaintiff-Appellee/Cross-Appellee,
v.
University of Michigan Board of Regents, Mohamed Aziz, M.D., Stephan F. Taylor, M.D., Robert A. Koepke, Ph.D., Rajiv Tandon, M.D., Satoshi Minoshima, M.D., And Joseph Yaroch, M.D., Defendants, 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., Defendants-Appellants, and
Srinibas Mahapatra, M.D., Defendant-Cross-Appellant.
Court of Appeals of Michigan.
*98 Blaske & Blaske, P.L.C. (by Thomas H. Blaske and John F. Turck IV), Ann Arbor, for Monika Mazumder.
Hebert, Eller & Chandler, PLLC (by Kevin P. Hanbury), Bingham Farms, 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), Bloomfield Hills, for Srinibas Mahapatra, M.D.
Yockey Yockey & Schliem (by John A. Klarr), Farmington Hills, for Washtenaw County Community Mental Health, Moonson R. Elliott Eninsche, and Richard Pfoutz.
Before: HOEKSTRA, P.J., and NEFF, DAVIS and OWENS, 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 MCR 2.116(C)(7) on the grounds that plaintiff's action was time-barred.[1] Dr. Srinibas Mahapatra also challenges on cross-appeal the order denying summary disposition. We affirm, although not on the basis cited by the trial court.
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 N.W.2d 813 (2004), and more particularly, this Court's decision in Ousley v. McLaren, 264 Mich.App. 486, 494-495, 691 N.W.2d 817 (2004), which determined that Waltz warrants retroactive application.[2] The question in this case is whether plaintiff's wrongful death medical malpractice action is properly dismissed after the decision in Waltz because the 182-day statutory tolling period, MCL 600.5856, on which plaintiff relied in calculating the period of limitations for filing her action was no longer applicable, and thus the saving period for filing a wrongful death action, MCL 600.5852, expired during the required 182-day statutory notice period for filing a medical malpractice action, MCL 600.2912b. We conclude that principles of equity require affirmance under the circumstances of this case.
*99 II
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(1), 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.[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 injustice in circumstances such as these. Bryant v. Oakpointe Villa Nursing Ctr., Inc., 471 Mich. 411, 432, 684 N.W.2d 864 (2004); Gladych v. New Family Homes, Inc., 468 Mich. 594, 606, 664 N.W.2d 705 (2003); Pohutski v. City of Allen Park, 465 Mich. 675, 698-699, 641 N.W.2d 219 (2002). We conclude that the application of principles of equity is similarly warranted in this case to reinstate plaintiff's action.
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 *100 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, 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, 691 N.W.2d 817.
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 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 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, 684 N.W.2d 864; Apsey v. Mem. Hosp. (On Reconsideration), 266 Mich.App. 666, 681-682, 702 N.W.2d 870 (2005); see also Ward v. Rooney-Gandy, 265 Mich.App. 515, 517-520, 696 N.W.2d 64 (2005) (setting forth principles for equitable tolling), rev'd 474 Mich. 917, 705 N.W.2d 686 (2005). No principled basis exists for denying plaintiff her right to proceed with her pending action.
A
Whether a period of limitations applies in particular circumstances constitutes a legal question that this Court considers de novo. Detroit v. 19675 Hasse, 258 Mich.App. 438, 444, 671 N.W.2d 150 (2003).
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, 677 N.W.2d 813, quoting Fane v. Detroit Library Comm., 465 Mich. 68, 74, 631 N.W.2d 678 (2001).]
This Court considers de novo the applicability of equitable doctrines. Yankee Springs Twp. v. Fox, 264 Mich.App. 604, 611, 692 N.W.2d 728 (2004).
B
The trial court denied defendants' motions for summary disposition on the grounds that plaintiff's complaint was *101 timely filed in light of what the court perceived as a "five-year ceiling" in MCL 600.5852. We disagree.
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, 266 Mich.App. 566, 573 n. 16, 703 N.W.2d 115 (2005), the three-year period referenced in the second sentence of MCL 600.5852 does not establish a wrongful death saving period separate from the period of two years after the issuance of letters of authority:
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 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, 677 N.W.2d 813. The limitations period for a medical malpractice action is two years from the date the claim first accrued.[6] MCL 600.5805(1) and (5);[7]Farley, supra at 571, 703 N.W.2d 115. However, 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.
*102 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, 703 N.W.2d 115.
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(1), and a provision for tolling the period of limitations during the 182-day notice period, MCL 600.5856(d). 1993 PA 78; Morrison v. Dickinson, 217 Mich.App. 308, 311-312, 551 N.W.2d 449 (1996). The purpose of the notice requirement is "to encourage settlement without the need for formal litigation." Neal v. Oakwood Hosp. Corp., 226 Mich.App. 701, 715, 575 N.W.2d 68 (1997).
MCL 600.2912b(1) 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[1]), that is, for a period not longer than 182 days." Farley, supra at 572, 703 N.W.2d 115.
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 N.W.2d 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 N.W.2d 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 *103 of a wrongful death action as many as three years after the applicable statute of limitations has expired. [Waltz, supra at 650-651, 677 N.W.2d 813.]
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 its progeny, plaintiff's complaint would be considered untimely. Waltz, supra at 651, 677 N.W.2d 813; Farley, supra at 573-575, 703 N.W.2d 115.
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, plaintiff's 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, 461 Mich. 567, 609 N.W.2d 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, 677 N.W.2d 813. In Omelenchuk, supra at 577, 609 N.W.2d 177, a unanimous Court referred to MCL 600.5852 as a "limitation period," and calculated the limitations period on the basis of the date the personal representative was appointed, February 14, 1994, rather than the accrual date of the cause of action, February 13, 1994. See Waltz, supra at 654, 677 N.W.2d 813. Accordingly, in Omelenchuk, supra at 577, 609 N.W.2d 177, the Court observed that "the two-year limitation period was set to expire on February 14, 1996," two years after the personal representative was appointed, indicating that the two-year period was tolled during the statutory notice period, i.e., the wrongful death saving period under MCL 600.5852. See Waltz, supra at 654, 677 N.W.2d 813.
Although in Waltz the Court determined that the dates in Omelenchuk were miscalculated and should have been based on the *104 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, 2002 WL 31188430 ("To the extent that plaintiff relies on Omelenchuk, supra at 577, 609 N.W.2d 177, 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 Fournier v. Mercy Community Health Care System-Port Huron, 254 Mich.App. 461, 657 N.W.2d 550 (2002), the Court clearly based its analysis and decision on the premise that the tolling provision, MCL 600.5856, applied to the wrongful death saving provision, MCL 600.5852. The Court held that because the plaintiff failed to comply with requirements for the notice of intent under MCL 600.2912b, the notice of intent did not toll the "statutory period of limitation," which expired two years after the probate court issued letters of authority appointing the plaintiff personal representative. Fournier, supra at 468-469, 657 N.W.2d 550. In Fournier, the decedent died on July 7, 1998. The plaintiff was appointed personal representative on July 13, 1998. The plaintiff mailed six notices of intent on July 12, 2000, next-day delivery, all of which were mistakenly sent to one recipient who was not named as a defendant. Id. at 463, 657 N.W.2d 550. The Court noted that "under the particular facts of this case, the period of limitation expired July 13, 2000, two years after the letters of authority were issued." Id. at 466-467, 657 N.W.2d 550 (emphasis added).
Likewise, in Lentini v. Urbancic, 262 Mich.App. 552, 686 N.W.2d 510 (2004), vacated *105 and remanded, 472 Mich. 885, 695 N.W.2d 66 (2005), on remand 267 Mich. App. 579, 705 N.W.2d 701 (2005), the "Court accepted that MCL 600.5856(d) tolled the period described under MCL 600.5852 . . . ." Lentini, supra, 267 Mich. App. at 581, 705 N.W.2d 701. In the initial opinion, the Court addressed the question of "when" the letters of authority were considered "issued" for the purposes of tolling the period of limitations. The Court held that the letters are "issued" on the date they are signed by the probate judge. Id. The decedent died on April 11, 1999. The letters of authority were signed on October 15, 1999, and certified and mailed to the plaintiff on October 19, 1999. On October 12, 2001, the plaintiff filed a notice of intent. Id. at 580-581, 705 N.W.2d 701. In its initial decision, the Court stated:
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. at 554-555, 686 N.W.2d 510.]
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.
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 1993 PA 78. Because of the effective date and the enacting provisions of the public act, the plaintiffs' case was subject to the notice requirement, but not the tolling provision. The Legislature enacted the notice provision and the tolling provision, both effective April 1, 1994. Id. at 311, 551 N.W.2d 449. The act, however, provided that the tolling provision did not apply to causes of action arising before October 1, 1993, whereas the notice provision applied to cases filed on or after October 1, 1993. Id. at 312, 551 N.W.2d 449.
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, 551 N.W.2d 449. 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, 551 N.W.2d 449. 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, 551 N.W.2d 449. Morrison clearly recognized that the Legislature's *106 intent was that the 182-day notice provision would be counterbalanced by the 182-day tolling provision. Id. at 315-316, 551 N.W.2d 449.
F
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, 684 N.W.2d 864; Pohutski, supra at 698-699, 641 N.W.2d 219. Given this precedent, including the recognition in Waltz, supra at 655, 677 N.W.2d 813, 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, 684 N.W.2d 864, 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, 677 N.W.2d 813, 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, 641 N.W.2d 219. 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 N.W.2d 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, 641 N.W.2d 219.]
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, 641 N.W.2d 219; see also Gladych, supra at 606, 664 N.W.2d 705. 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, 696 N.W.2d 64.
*107 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 C.J.S., Limitations of Actions, § 86, p. 122. . . .
* * *
This Court in United States Fidelity & Guaranty Co. v. Amerisure Ins. Co., 195 Mich.App. 1, 6, 489 N.W.2d 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, 696 N.W.2d 64. 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, 696 N.W.2d 64.]
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, 696 N.W.2d 64; see also Apsey, supra at 681-682, 702 N.W.2d 870. 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, 705 N.W.2d 686 (2005), the Ward dissent did not eschew the doctrine of equitable tolling, but concluded that it did not apply in the circumstances of that case because the affidavit was grossly nonconforming and the filing of the defective affidavit did not toll the period of limitations. Ward, supra at 529, 696 N.W.2d 64. Contrasting Bryant, supra at 432, 684 N.W.2d 864, the dissent concluded that the plaintiff's filing of an affidavit regarding the wrong patient "was undoubtedly `the product' of a `negligent failure' rather than an `understandable confusion . . . .'" Ward, supra at 528-529, 696 N.W.2d 64. In this case, to the contrary, there is no indication that the timing of plaintiff's complaint resulted from any negligent failure; rather, it was based on the confusion among the bench and bar concerning the existing law in Michigan. Apsey, supra at 681, 702 N.W.2d 870.
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, *108 we affirm the trial court's order denying defendants' motions for summary disposition pursuant to MCR 2.116(C)(7).
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.
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 N.W.2d 813 (2004), "retroactively foreclosed any statutory basis for tolling the two-year filing period in the saving statute, MCL 600.5852." Ante at 103. I respectfully dissent, however, from the majority's conclusion that the doctrine of equitable tolling may be applied here to uphold the trial court's denial of summary disposition in favor of defendants.
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 personal representative of the decedent's estate was properly denied because, "[a]t the time [her] cause of action arose. . ., Omelenchuk [v. City of Warren, 461 Mich. 567, 609 N.W.2d 177 (2000)] was the controlling law in this state." Plaintiff asserts that she reasonably relied on Omelenchuk in concluding that the tolling provision of MCL 600.5856(d)[1] applied to the two-year period for commencing a wrongful death action as personal representative of a decedent's estate set forth in MCL 600.5852. Thus, plaintiff requests that this Court invoke its equitable powers to alleviate the effects of retroactively applying the Supreme Court's subsequent decision in *109 Waltz to the case at bar. As explained below, however, legal considerations and a diligent reading of the relevant precedents preclude this Court from applying principles of equity to judicially toll the period of limitations and, thereby, spare plaintiff from the admittedly harsh result of summary dismissal of her claim on the basis that Omelenchuk was controlling precedent.
Well before the decedent's death, our Supreme Court, in Lindsey v. Harper Hosp., 455 Mich. 56, 58-59, 564 N.W.2d 861 (1997), addressed whether the two-year period set forth in MCL 600.5852 began to run when the plaintiff was issued letters of authority as "temporary" personal representative, or when the plaintiff was later appointed as the permanent personal representative of the decedent's estate. In concluding that the period began to run at the issuance of the letters appointing the plaintiff temporary personal representative, and that, as a result, the plaintiff's claim for medical malpractice was time-barred, the Court made repeated references to MCL 600.5852 as a "saving provision" that, "as an exception to a statute of limitation, must be narrowly construed." Id. at 64-67, 69, 564 N.W.2d 861. Noting the generally arbitrary manner in which "all statutes of limitation set . . . time limits for legal claims," however, the Court declined to limit the retroactive effect of its holding despite the fact that the "plaintiff's claim may seem unfairly barred by [its] holding. . . ." Id. at 69, 564 N.W.2d 861.
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, 609 N.W.2d 177, 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, 609 N.W.2d 177. 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, 609 N.W.2d 177 (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 plaintiff's claim was time-barred. Id. at 577-578, 609 N.W.2d 177.
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., 466 Mich. 196, 644 N.W.2d 730 (2002). Unlike Omelenchuk, in which MCL 600.5852 was only tangentially implicated, in Miller the Court was asked to expressly address the provisions of MCL 600.5852. *110 Specifically, the Court was asked to decide whether the six-month discovery rule of MCL 600.5838a(2) constituted a "period of limitations" within the meaning of MCL 600.5852. Miller, supra at 197, 644 N.W.2d 730. In concluding that it does, the Court strictly construed the plain language of MCL 600.5852, citing both Lindsey and the fact that "[s]ection 5852 is a saving statute, not a statute of limitations." Miller, supra at 202-203, 644 N.W.2d 730.
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, 677 N.W.2d 813, 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, 677 N.W.2d 813, 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 a "`statute of limitations saving provision' and an `exception to the statute of limitations' . . . ." Id. at 650, 564 N.W.2d 861, quoting Lindsey, supra at 61, 65, 564 N.W.2d 861. 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, 677 N.W.2d 813. 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, 609 N.W.2d 177.
Relying on Waltz, defendants sought summary disposition of the medical malpractice claims alleged by plaintiff in the wrongful death action filed by her 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 N.W.2d 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 uncontradicted case law or decide an issue of first impression that was not clearly foreshadowed. Id. at 493, 691 N.W.2d 817. Noting further that the question whether the notice tolling provision of MCL 600.5856(d) applied to the wrongful death saving provision of MCL 600.5852 was not before the Court in Omelenchuk, the panel found that the only law Waltz might arguably have overruled was the admittedly confusing and imprecise dicta used by the Court in applying its holding in Omelenchuk. Id. at 493-495, 691 N.W.2d 817. The panel further concluded that "to the extent that Waltz decided an issue of first impression in deciding that § 5856(d) does not toll § 5852, that resolution was `clearly foreshadowed,' if not actually determined, by the [Supreme *111 Court's] previous decision holding that § 5852 is a saving provision, not a statute of limitations or repose." Id. at 495, 691 N.W.2d 817, citing Waltz, supra at 653-654, 677 N.W.2d 813. Thus, the panel concluded that Waltz meets neither of the two exceptions to the general rule requiring retroactive application of judicial decisions and that its holding, therefore, applies retroactively. Ousley, supra at 495, 691 N.W.2d 817.
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 plaintiff's complaint untimely, I concur. See ante at 100, 101. I 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, 677 N.W.2d 813. 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, 677 N.W.2d 813; Ousley, supra at 492, 494-495, 691 N.W.2d 817. 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, 677 N.W.2d 813, and again by this Court in Ousley, supra at 495, 691 N.W.2d 817, a diligent and reasonable reading of the relevant precedents and statutory language plainly advises that a medical malpractice plaintiff's 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 "[p]laintiff 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 106. 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 *112 those in other similarly situated cases, can look for relief.
In Bryant v. Oakpointe Villa Nursing Ctr., Inc., 471 Mich. 411, 432-433, 684 N.W.2d 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 MCL 600.5805(6) and MCL 600.5852. Although observing that, "under ordinary circumstances," the plaintiff's claims for medical malpractice would be time-barred, the Court found that the "equities" of that case compelled a different result. Bryant, supra at 432, 684 N.W.2d 864. In doing so, the Court noted that "[t]he distinction between actions sounding in medical malpractice and those sounding in ordinary negligence [had] troubled the bench and bar," and thus found that the "[p]laintiff's failure to comply with the applicable statute of limitations [was] the product of an understandable confusion about the legal nature of her claim, rather than a negligent failure to preserve her rights." Id. The Court, therefore, applied its equitable power to permit the plaintiff's medical malpractice claims to proceed to trial along with her claim of ordinary negligence. Id.
The Court, however, recently clarified the limits of this equitable power in Devillers v. Auto Club Ins. Ass'n., 473 Mich. 562, 590 n. 5, 702 N.W.2d 539 (2005), in which, declining to apply these same principles to toll the one-year-back rule of MCL 500.3145(1), the Court explained that "a categorical redrafting of a statute in the name of equity violates fundamental principles of equitable relief and is a gross departure from the proper exercise of the `judicial power,'" and, in doing so, distinguished its application of equity in Bryant:
[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, 400 F.3d 417, 421 (C.A.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 prospectively. See, e.g., James B Beam Distilling Co. v. Georgia, 501 U.S. 529, 543, 111 S. Ct. 2439, 115 L. Ed. 2d 481 (1991) (opinion of Souter, J.) (Once retroactive application is chosen for any assertedly new rule, it is chosen for all others who might seek its prospective application.). *113 With respect to such a determination, our Supreme Court did not, as it did in Lindsey, supra at 68-69, 564 N.W.2d 861, address the effect of its holding in Waltz on those cases pending at the time of its decision. It is evident from its precedent, however, that in those circumstances where the Court believes that "injustice might result from full retroactivity," it has seen fit to limit retroactive application of its holdings. Pohutski v. City of Allen Park, 465 Mich. 675, 695-696, 641 N.W.2d 219 (2002); see also Gladych v. New Family Homes, Inc., 468 Mich. 594, 606, 664 N.W.2d 705 (2003). Rather than do so here, our Supreme Court has denied leave to appeal this Court's decision in Ousley, see 472 Mich. 927, 697 N.W.2d 525 (2005), and has directed that this Court give its holding in Waltz "full retroactive application" in at least three other cases, Wyatt v. Oakwood Hosp. & Medical Centers, 472 Mich. 929, 697 N.W.2d 527 (2005); Evans v. Hallal, 472 Mich. 929, 697 N.W.2d 526 (2005), and Forsyth v. Hopper, 472 Mich. 929, 697 N.W.2d 526 (2005). The Court's view on the matter thus seems clear, despite its failure to directly address the question of the retroactive application of Waltz. Although adherence to this view commands a harsh result for this plaintiff, and potentially a great number of other plaintiffs, we cannot ignore the Court's directives and, in any event, are bound to follow the holding in Ousley, MCR 7.215(J)(1), and apply Waltz retroactively to the case at bar.[2]
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.
NOTES
[1] 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.
[2] See also Forsyth v. Hopper, 472 Mich. 929, 697 N.W.2d 526 (2005); Wyatt v. Oakwood Hosp. & Med. Centers, 472 Mich. 929, 697 N.W.2d 527 (2005); Evans v. Hallal, 472 Mich. 929, 697 N.W.2d 526 (2005); McMiddleton v. Bolling, 267 Mich.App. 667, 671, 705 N.W.2d 720 (2005); Lentini v. Urbancic (On Remand), 267 Mich.App. 579, 582 n. 3, 705 N.W.2d 701 (2005).
[3] 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.
[4] Although plaintiff apparently is the successor personal representative, she relies on the date the initial personal representative, Bhaskar Mazumder, was appointed.
[5] The number of days from April 27, 2004, to May 2, 2004, added to the 182 days.
[6] The six-month discovery rule, MCL 600.5838a(2), does not apply in this case.
[7] Effective March 31, 2003, former MCL 600.5805(5) was renumbered as subsection 6.2002 PA 715. Because subsection 5 prescribed the period of limitations applicable at the time this action accrued, MCL 600.5838a(1), this opinion refers to subsection 5.
[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. 2004 PA 87. This opinion cites the former subsection for consistency.
[9] 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.
[10] 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, 254 Mich.App. 461, 657 N.W.2d 550 (2002) (authored by Judge Kelly, joined by Judges Smolenski and Hood); Lentini v. Urbancic, 262 Mich.App. 552, 686 N.W.2d 510 (2004) (authored by Judge Smolenski and joined by Judges White and Kelly), vacated and remanded, 472 Mich. 885, 695 N.W.2d 66 (2005), on remand 267 Mich.App. 579, 705 N.W.2d 701 (2005); Crockett v. Fieger Fieger Kenney & Johnson, PC, unpublished opinion per curiam of the Court of Appeals, issued October 28, 2003 (Docket No. 240863, 2003 WL 22439718) (Judges Bandstra, Hoekstra, and Borrello); Waltz v. Wyse, unpublished opinion per curiam of the Court of Appeals, issued October 1, 2002 (Docket No. 231324) (Judges Cooper, Hoekstra, and Markey); Chernoff v. Sinai Hosp. of Greater Detroit, unpublished opinion per curiam of the Court of Appeals, issued March 22, 2002 (Docket No. 228014, 2002 WL 483533) (Judges Neff, Fitzgerald, and Talbot); Gillary v. Sisters of Mercy Health Corp., unpublished opinion per curiam of the Court of Appeals, issued July 10, 2001 (Docket No. 221665, 2001 WL 772738) (Judges Saad, Holbrook, and Murphy); Williams v. Spohn, unpublished opinion per curiam of the Court of Appeals, issued December 12, 2000 (Docket No. 212792, 2000 WL 33395288) (Judges Wilder, Holbrook, and McDonald). Our review indicates that, before the holding in Ousley, no panel had indicated a contrary view and, further, that defense counsel as well generally held the view that tolling applied to the saving period. See, e.g. Chernoff, supra, slip. op. p. 1 and n. 1.
[11] 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.
[1] As recognized by the majority, MCL 600.5856 was amended by 2004 PA 87, effective April 22, 2004. As part of this amendment, MCL 600.5856(d) was reworded in a manner that does not change the substantive meaning of the provision, and reassigned as MCL 600.5856(c). Because many of the precedents discussed in this opinion and the events relevant to the timeliness of plaintiff's complaint occurred before the effective date of 2004 PA 87, I will refer to the arrangement of MCL 600.5856 before its amendment.
[2] 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 99. In this Court, the recent decision of Mullins v. St. Joseph Mercy Hosp., 269 Mich.App. 586, 711 N.W.2d 448 (2006), has invoked the conflict procedure, MCR 7.215(J)(2), regarding the holding in Ousley. See 269 Mich.App 801 (2006). With its opinion today, the majority applies equitable tolling essentially as a substitute for prospective application, a decision that in my judgment may well result in another panel declaring a conflict. All the while that these issues swirl through this Court, litigants are faced with prolonged uncertainty regarding the viability of their claims. It seems to me that under these circumstances, it is incumbent on the Supreme Court to take up these issues and resolve them definitively. In this regard, I fully concur with the majority's reasoning in McLean v. McElhaney, 269 Mich. App. 196, 204, 711 N.W.2d 775 (2005).