WARD v ROONEY-GANDY
Docket No. 250174
Court of Appeals of Michigan
Submitted February 1, 2005. Decided March 22, 2005.
265 Mich App 515
Leave to appeal granted, 472 Mich ___.
The Court of Appeals held:
On the basis of equitable tolling, or judicial tolling, and to ensure fundamental practicality and fairness and to prevent the unjust technical forfeiture of a cause of action, this case should be allowed to proceed in the trial court. The defendant knew of the error in the affidavit of merit attached to the complaint, waited until the period of limitations had run, then moved for summary disposition. The legislative purpose behind the requirement of an affidavit of merit in a medical malpractice action is to deter frivolous medical malpractice claims. The legislative purposes behind statutes of limitations are to encourage plaintiffs to diligently pursue claims and to protect the defendants from having to defend against stale and fraudulent claims. In this case, the plaintiff had diligently pursued his claims and filed his complaint before the period of limitations expired, and the defense counsel conceded that any delay in the proceedings related to the deficient affidavit of merit would not hinder or prejudice the defendant‘s ability to defend against the plaintiff‘s cause of action. Under the facts of this case, the doctrine of equitable tolling allows the reinstatement of plaintiff‘s case, which reinstatement is not contrary to the legislative purpose behind
Reversed.
LIMITATION OF ACTIONS — STATUTE OF LIMITATIONS — EQUITABLE TOLLING.
Equitable tolling of a period of limitations may be applied where a plaintiff actively pursued his judicial remedies by filing a defective pleading during the limitations period.
Kelman, Loria, Will, Harvey & Thompson (by Charles H. Chomet) for the plaintiff.
Aardema, Whitelaw & Sears-Ewald, PLLC (by Dolores Sears-Ewald and Timothy P. Buchalski), for the defendant.
Before: MARKEY, P.J., and MURPHY and O‘CONNELL, JJ.
MURPHY, J. Plaintiff appeals as of right the trial court‘s order granting summary disposition in favor of defendant pursuant to
This Court reviеws de novo a trial court‘s ruling on a motion for summary disposition. Koenig v South Haven, 460 Mich 667, 674; 597 NW2d 99 (1999). In the absence of disputed facts, whether a cause of action is barred by the statute of limitations is a question of law that is reviewed de novo. Boyle v Gen Motors Corp, 468 Mich 226, 229-230; 661 NW2d 557 (2003).
“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. In Lewis v Detroit Automobile Inter-Ins Exch, 426 Mich 93, 102; 393 NW2d 167 (1986), the Michigan Supreme Court, acknowledging the doctrine and quoting favorably United States Supreme Court precedent, stated:
In addition to the above-cited Michigan insurance cases, there is precedent in the case law for the principle of
judicial tolling. In American Pipe & Construction Co v Utah, 414 US 538, 559; 94 S Ct 756; 38 L Ed 2d 713 (1974), the United States Supreme Court stated: “These cases fully support the conclusion that the mere fact that a federal statute providing for substantive liability also sets a time limitation upon the institution of suit does not restrict the power of the federal courts to hold that the statute of limitations is tolled under certain circumstances not inconsistent with the legislative purpose.”
See also Steele v Bliss, 166 Mich 593; 132 NW 345 (1911). Although the facts in these cases are dissimilar to those of the instant case, they do stand for the proposition that limitation statutes are not entirely inflexible, allowing judicial tolling under certain compelling circumstances.
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[.]”
In Bryant, supra at 432, Justice MARKMAN, writing for the majority, applied the principles of the doctrine of equitable tolling in a medical malpractice action, while not specifically referring to the doctrine by name:
Having decided that two of plaintiff‘s claims sound in medical malpractice, we must determine whether plaintiff‘s medical malpractice claims are now time-barred. See
MCR 2.116(C)(7) .The period of limitations for a medical malpractice action is ordinarily two years.
MCL 600.5805(6) . According toMCL 600.5852 , plaintiff had two years from the date she was issued letters of authority as personal representative of Hunt‘s estate to file a medical malpractice complaint. Because the letters of authority were issued to plaintiff on January 20, 1998, the medical malpractice action had to be filed by January 20, 2000. Thus, under ordinary circum-stances, plaintiff‘s February 7, 2001, medical malprаctice complaint (her third complaint in total) would be time-barred. The equities of this case, however, compel a different result. The distinction between actions sounding in medical malpractice and those sounding in ordinary negligence is one that has troubled the bench and bar in Michigan[.] . . . Plaintiff‘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. Aсcordingly, for this case and others now pending that involve similar procedural circumstances, we conclude that plaintiff‘s medical malpractice claims may proceed to trial along with plaintiff‘s ordinary negligence claim.
MCR 7.316(A)(7) .2 [Emphasis added.]
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
We find it incumbent upon us to utilize this doctrine to ensure fundamental practicality and fairness and to prevent the unjust technical forfeiture of a cause of action in this case. It is inconsistent with fundamental justice to close the courthouse doors to a litigant who has essentially satisfied the intent of the Legislature relative to the prеrequisites for processing a medical malpractice claim, but who through clerical error attached the wrong affidavit to the complaint. Yet that is what occurred in this case, and the dissent has embraced it. To prevent injustice and provide plaintiff with his day in court, we invoke what must and should be rarely invoked, the doctrine of equitable or judicial tolling.
Plaintiff‘s cause of action alleges medical malpractice, and the period of limitations for medical malprac-
Limitation periods created by statute are grounded in a number of worthy policy considerations. They encourage the prompt recovery of damages, Buzzn v Muncey Cartage Co, 248 Mich 64, 67; 226 NW 836 (1929); they penalize plaintiffs who have not been industrious in pursuing their claims, First National Bank of Ovid v Steel, 146 Mich 308; 109 NW 423 (1906); they “afford security against stale demands when the circumstances would be unfavorable to a just examination and decision“, Jenny v Perkins, 17 Mich 28, 33 (1868); they relieve defendants of the prolonged fear of litigation, Bigelow [v Walraven, 392 Mich 566, 576; 221 NW2d 328 (1974)]; they prevent fraudulent claims from being asserted, Bailey v Glover, 88 US (21 Wall) 342; 22 L Ed 636 (1875); and they “remedy * * * the general inconvenience resulting from delay in the assertion of a legal right which it is practicable to assert“. Lenawee County v Nutten, 234 Mich 391, 396; 208 NW 613 (1926).
The primary purposes behind statutes of limitations can be summarized as (1) encouraging the plaintiffs to diligently pursue claims and (2) protecting the defendants from having to defend against stale and fraudulent claims. Lemmerman v Fealk, 449 Mich 56, 65; 534 NW2d 695 (1995).
Here, there can be no genuine dispute that plaintiff diligently pursued his cause of action.3 The surgery and
its immediate aftermath from which the alleged malpractice of defеndant arose dates back to October 2000. Less than a year later, in August 2001, plaintiff served the required notice of intent under
In regard to the matter of prejudice to defendant, defense counsel conceded at oral argument that any delay in the proceedings associated with the deficient affidavit of merit had not hindered or prejudiced defendant‘s ability to defend against plaintiff‘s cause of action. Furthermore, defendant acknowledged that the appropriate affidavit of merit relative to this case was in compliance with the statute.
The application of equitable tolling is not contrary to the legislative purpose behind the enactment of
Dismissal of plaintiff‘s complaint is fundamentally unfair and constitutes an unjust technical forfeiture of his cause of action. As in Bryant, the equities of this medical malpractice сase compel a finding that the action is not time-barred. But for a clerical error,
Our decision is not affected by this Court‘s ruling in Young v Sellers, 254 Mich App 447, 452; 657 NW2d 555 (2002), in which the Court reluctantly held that a medical malpractice complaint, which was filed without the affidavit of merit because of a clerical error, was barred by the statute of limitations рursuant to the holding in Scarsella v Pollak, 461 Mich 547; 607 NW2d 711 (2000). The affidavit was signed and prepared before the period of limitations on the plaintiff‘s claim expired; however, because of a clerical error it was not filed until after the limitations period had expired. Young, supra at 452. The Court, finding itself bound by stare decisis, held that the plaintiff‘s claim was barred. Id. Here, an affidavit of merit was timely filed albeit unrelated to plaintiff‘s case. Regardless, there is no indication in the language of Young that the Court considered the doctrine of equitable tolling. Moreovеr, our Supreme Court‘s decision in Bryant was not subject to consideration as it had not yet been issued. That being the case, we are not confined to the limited analysis set forth in Young.
We are cognizant of the decisions in Scarsella, Mouradian v Goldberg, 256 Mich App 566; 664 NW2d 805 (2003), and Geralds v Munson Healthcare, 259 Mich App 225; 673 NW2d 792 (2003). Those cases, however, were decided before Bryant and did not address equitable tolling, nor were the circumstances such that equity compelled a different outcome. In Scarsella, the plaintiff did not file any affidavit of merit until after the period of limitations elapsed, and there is no indi-
In the present case, Dr. Siegel‘s affidavit [of merit] not only fails to contend that Dr. Goldberg inappropriately injected the anesthetic during the second surgery, the affidavit also fails to certify any merit to the assertion in the complaint that Dr. Goldberg breached any standard of care in the second surgery. Rather, the statements in the affidavit concerning the second surgery refer only to other defendants.
Hencе, there did not exist a legally sound and valid affidavit of merit in Mouradian, and, thus, the legislative intent to deter frivolous medical malpractice lawsuits was not served by leaving equitable considerations by the wayside. Here, an admittedly sound and valid affidavit existed, and it existed long before the period of limitations expired. And although it was not timely filed because of an inadvertent clerical error, it minimally formed a basis to make an initial assessment that plaintiff‘s claim was not frivolous, thereby serving the legislative purpose of
Tolling the period of limitations from the time the original complaint was filed in March 2002 until discov-
Reversed and remanded for proceedings consistent with this opinion. We do not retain jurisdiction.
MARKEY, P.J., concurred.
O‘CONNELL, J. (dissenting). I respectfully dissent. Plaintiff filed the wrong affidavit of merit with his complaint. Therefore, the affidavit utterly failed to conform to the law. Because a grossly nonconforming affidavit does not toll the period of limitations, and the limitations period elapsed before the filing of a correct affidavit, plaintiff‘s claim is time barred. Therefore, I am required to follow Supreme Court precedent and must dissent from the majority‘s noble, but misguided, attempt to salvage this case.1
The trial court in this case originally denied defendant‘s motion for summary disposition, but after we issued Mouradian v Goldberg, 256 Mich App 566; 664 NW2d 805 (2003), the trial cоurt reconsidered its decision on its own motion and granted summary disposition. While plaintiff argued that Mouradian did not apply, he did not raise any issue regarding estoppel, waiver, or any other equitable doctrine that might conceivably excuse his failure to file the appropriate affidavit of merit with his complaint. Neither did plaintiff mention the issue of equitable tolling in his statement of appellate issues. The majority has researched,
Putting aside these procedural irregularities, the current state of the law does not justify application of the majority‘s equitable doctrine. In general, “a civil case is commenced and the period of limitation is tolled when a complaint is filed.” Scarsella v Pollak, 461 Mich 547, 549; 607 NW2d 711 (2000). However, in actions alleging medical malpractice, a plaintiff must file an affidavit of merit with the complaint for the complaint to initiate the lawsuit. Id.;
In Mouradian, supra at 574, we determined that an affidavit of merit that is “grossly nonconforming” with
Having presented the current state of the law, I must add that I disagree with any rule of law that encourages conniving, unethical practice on the part of attorneys. The public‘s disdain for such behavior prompted the legislation under review. Neither the Legislature, nor our courts, should try to equalize injustices, but should strive to erase them altogether. We will never obtain fairness by allowing the disadvantaged and exploited to cheat. Therefore, while I would apply the rule of law in this case, I would also note that the Michigan Court Rules could prevent this type of gamesmanship if they required a defendant to raise with particularity any objections to the validity of an affidavit of merit in the defendant‘s first responsive pleading. Failure to object would result in the defendant waiving any later objection to the efficacy of the affidavit. Objecting would put the plaintiff immediately on notice of the affidavit‘s infirmities and would inject a much-needed dose of integrity into the current system. I would encourage the Supreme Court to amend thе Michigan Court Rules accordingly.
Rather than directly approach this difficult issue, the majority equitably excuses plaintiff‘s failure to file the affidavit on the basis of a doctrine it discovers in Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004). However, that case specifically applied the doctrine of equitable tolling because “[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
The affidavit of merit filed by plaintiff in this case failed to meet the requirements of