Flaintiff appeals as of right the trial court’s order granting summary disposition in defendants’ favor. We reverse because we are required by MCR 7.215(J)(1) to follow the holding in
Mazumder v Univ of Michigan Bd of Regents,
I. FACTS
On January 18, 2001, the decedent was admitted to Sparrow Hospital for a total knee revision arthroplasty surgery. The surgery took longer than expected because of complications. After surgery, the decedent was transferred to a hospital room, where a nurse, who noted the decedent’s low blood pressure, paged defendant John C. Siano, Jr., M.D., three times. Dr. Siano called in an order, but a doctor did not see the decedent until the *586 next morning. At that time, the decedent was transferred to the intensive care unit, where he was treated for adult respiratory distress syndrome, transient disseminated intravascular coagulation, and thrombocytopenia. The decedent was intubated on January 27, 2001, and continued to suffer complications. He died on May 11, 2001.
On July 5, 2001, plaintiff was appointed the personal representative of the decedent’s estate. Plaintiff notified defendants of his intent to file a medical malpractice claim on May 9, 2003. Plaintiff filed his initial complaint on October 20, 2003.
Dr. Siano and Lansing Internal Medicine Associates, EC., filed a motion for summary disposition under MCR 2.116(C)(4), (7), and (10), arguing, in relevant part, that plaintiffs claim was not timely filed. Edward W Sparrow Hospital Association concurred and also filed a motion for summary disposition. Defendants specifically argued that plaintiff had two years from the date of the malpractice, January 18, 2001, or two years from his appointment as personal representative, July 5, 2001, to initiate this action. However, plaintiff filed his complaint on October 20, 2003, approximately nine months after the statutory period of limitations expired and approximately three months after the wrongful death saving period expired.
Plaintiff responded to these motions arguing, among other things, that, pursuant to
Omelenchuk v City of Warren,
The trial court determined that Waltz was applicable to plaintiffs claim and entered an order granting defendants’ motions for summary disposition. On appeal, plaintiff contends that the trial court erred in dismissing his claim.
II. ANALYSIS
A. STANDARD OF REVIEW
This Court reviews de novo whether the statutory period of limitations bars a claim.
Farley v Advanced Cardiovascular Health Specialists, PC,
B. APPLICATION OF WALTZ
There is no question that plaintiffs claim is barred by the application of
Waltz.
“The statute of limitations for a wrongful death action is governed by the statute of limitations applicable to the underlying theory of liability.”
Eggleston v Bio-Medical Applications of Detroit, Inc,
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. [3]
*589 Also at issue in this case is the wrongful death saving provision of MCL 600.5852, which states:
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 alleged malpractice in this case occurred, at the latest, on January 19, 2001. Therefore, the medical malpractice period of limitations would have expired on January 19, 2003. Plaintiff was appointed the personal representative of the decedent’s estate on July 5, 2001. The wrongful death saving provision then extended the time plaintiff had to file his suit until July 5, 2003. Plaintiff sent his notice of intent to file a claim on May 9, 2003, after the medical malpractice period of limitations expired, but before the saving period of MCL 600.5852 expired. However, plaintiff did not file his complaint until October 20, 2003, after the saving period expired.
Plaintiff contends that MCL 600.5856(d) tolled the saving period and gave him until January 3, 2004, to timely file his complaint. Plaintiff relies on Omelen *590 chuk, in which our Supreme Court referred to MCL 600.5852 as setting forth a “limitation period.” Omelenchuk, supra at 577. Accordingly, plaintiff believed that the notice tolling provision applied to the wrongful death saving provision in MCL 600.5852. However, in Waltz, our Supreme Court clarified that, despite the “imprecise choice of words” in Omelenchuk, MCL 600.5852 “is not a statute of limitations, but a saving statute.” Waltz, supra at 654 (emphasis in original). The Court further stated, “Section 5852 clearly provides that it is an exception to the limitations period, allowing the commencement of a wrongful death action as many as three years after the applicable statute of limitations has expired.” Id. at 651 (emphasis in original). This exception to the limitations period cannot be tolled by MCL 600.5856(d). Id. at 651-652. The Court continued, “The source of the confusion surrounding our holding in Omelenchuk stems in part from our passing references to § 5852 as creating a ‘limitation period.’ ” Id. at 653. The Court clarified that MCL 600.5852 does not create a separate limitations period, but is a saving statute. Id. at 654. The Court held, “To the limited extent. . . Omelenchuk might be viewed as sanctioning application of the notice tolling provision to the wrongful death saving provision, it is hereby overruled.” Id. at 655.
As mentioned previously, the medical malpractice period of limitations in this case expired on January 19, 2003. Therefore, plaintiff would have had to provide his notice of intent before this date to avail himself of the tolling provision of MCL 600.5856(d). Waltz, supra at 651. Because plaintiff did not provide the notice of intent until May 9, 2003, MCL 600.5856(d) does not apply. To avail himself of the saving provision of MCL 600.5852, plaintiff had to file his complaint within two years of being appointed personal representative of the *591 estate, i.e., by July 5, 2003. Plaintiff did not file his complaint until October 20, 2003. Therefore, under Waltz, plaintiffs complaint is time-barred.
C. RETROACTIVITY OF WALTZ
Plaintiff, however, contends that Waltz should be applied prospectively and should not affect this case. We disagree.
“Judicial decisions generally are given full retroactive effect.”
Holmes v Michigan Capitol Med Ctr,
In
Ousley v McLaren,
This Court is bound to follow the rule of law established by a published decision of the Court of Appeals issued on or after November 1, 1990. MCR 7.215(J)(1). Accordingly, we are required to follow
Ousley.
Because
Waltz
did not clearly establish a new principle of law, consideration of the factors listed in
Pohutski
was not necessary. It also appears manifest that our Supreme Court intended
Waltz
to apply retroactively from the remand orders in
Wyatt, Evans,
and
Forsyth.
Orders of our Supreme Court with an understandable rationale constitute binding precedent.
Evans & Luptak, PLC v Lizza,
We note that, in
Mullins v St Joseph Mercy Hosp,
Plaintiff also argues that applying Waltz retroactively denies him his constitutional right to due process of law because applying Waltz shortens the period of limitations for his claim by 182 days. We disagree. The period of limitations for a medical malpractice case is still two years, with tolling allowed if a notice of intent is sent within the period of limitations. The only period being shortened is the saving period of MCL 600.5852. The Court in Waltz, supra at 652 n 14, rejected a similar argument that its decision shortened the two-year period under MCL 600.5852. Therefore, we reject plaintiffs argument that applying Waltz denied him due process.
Plaintiff also argues that there was a change in the statute of limitations with
Waltz
and that courts are to apply the statute of limitations in effect at the time the cause of action arose, which, in this case, would allow tolling of the wrongful death saving period. Plaintiff correctly asserts that “the applicable statute of limitations is the one in effect when the plaintiffs cause of action arose.”
Rzadkowolski v Pefley,
*594 D. EQUITABLE TOLLING
Plaintiff also contends that the trial court should have denied defendants’ summary disposition motion on the basis of judicial tolling. Since this appeal was filed, this Court issued its opinion in Mazumder, in which a majority of the panel invoked equitable tolling as a basis for post-notice-of-intent tolling of the wrongful death saving period, MCL 600.5852, under MCL 600.5856(d). Though we are required to follow it, we disagree with the majority’s decision in Mazumder.
1. SUMMARY OF MAZUMDER MAJORITY’S DECISION
In Mazumder, the plaintiff alleged that the defendants’ medical malpractice caused the wrongful death of the decedent on June 3, 2000. On May 2, 2002, the plaintiff was appointed personal representative of the decedent’s estate. On April 27,2004, the plaintiff sent the defendants notice of her intent to file a medical malpractice claim. On October 21,2004, the plaintiff filed suit. Mazumder, supra at 47. On appeal of the trial court’s denial of the defendants’ motions for summary disposition pursuant to MCR 2.116(C)(7), this Court confronted the
question... whether plaintiffs 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. [Mazumder, supra at 45.]
The Supreme Court decided Waltz on April 14, 2004, shortly before the plaintiff provided the defendants with notice of intent to file a malpractice claim. Mazumder, supra at 47, 54.
*595 The Mazumder majority acknowledged that, in Ousley and subsequent decisions, this Court had affirmed that Waltz applies with full retroactivity. Mazumder, supra at 44-47. 4 The Mazumder majority further acknowledged that, according to this precedent, the two-year wrongful death saving period, MCL 600.5852, was not tolled under MCL 600.5856(d) after the plaintiff sent notices of intent to sue, MCL 600.2912b, and the plaintiffs complaint would be considered untimely. Mazumder, supra at 47-50.
Nevertheless, the Court in
Mazumder
reasoned that “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.”
Id.
at 48. In support of this holding, the Court, in part IV(E) of its decision, relied on (1) the dicta in
Omelenchuk
suggesting that MCL 600.5852 set forth a period of limitations,
Mazumder, supra
at 54-55; (2) two published decisions and five unpublished opinions of this Court purportedly following the
Omelenchuk
dicta,
Mazumder, supra
at 55 n 10; and (3)
Morrison v Dickinson,
In part IV(F) of the majority opinion in
Mazumder,
this Court reviewed the circumstances in which a court may apply the equitable or judicial tolling doctrine, and concluded that the doctrine applied in
Mazumder
be
*596
cause, in light of the
Omelenchuk
dicta and subsequent decisions apparently adopting it, the plaintiff understandably “relied on the courts’ repeated recognition and the general understanding among the bench and bar that tolling applied under the circumstances of this case.”
Id.
at 59-62. Among other authority,
5
this Court cited
Bryant v Oakpointe Villa Nursing Ctr, Inc,
*597 2. BINDING PRECEDENT REGARDING EQUITABLE TOLLING IGNORED BY MAZUMDER MAJORITY
A fatal flaw in the application of equitable tolling in Mazumder is that the majority neglected to completely examine and apply controlling precedent limiting the equitable tolling doctrine. The Michigan Supreme Court has held that equitable tolling cannot apply when a statute setting forth an applicable period of limitations contains no language contemplating equitable tolling. The majority opinion in Mazumder failed to acknowledge these Michigan Supreme Court cases and the limitation they place on equitable tolling.
Equitable or judicial tolling does not apply when a clear and unambiguous statute sets forth the applicable period of limitations and the statute does not “hint... that the Legislature intended that there be any tolling of that time.”
Secura Ins Co v Auto-Owners Ins Co,
*598 This Court has rejected similar attempts to modify statutes of limitations. See.. . Secura Ins Co [supra at 387-388] (holding that the doctrine of judicial tolling cannot be applied in the absence of statutory language permitting such tolling).... While the judicial temptation to relax a statute of limitations may be understandable in the context of a lawsuit in which a plaintiff, alleging that he or she has suffered a serious wrong, has been denied his or her day in court, the costs involved in terms of undermining the clarity and predictability of the law, allowing stale complaints to proceed, and injecting uncertainty into a myriad of legal relationships, are considerable, not to mention that a court that does so would be exercising “legislative,” not “judicial,” power. See Const 1963, art 3, § 2; art 4, § 1; art 6, § 1. [Garg, supra at 285 n 12.]
In
Devillers, supra
at 564, the Supreme Court overruled its prior holding in
Lewis v DAIIE,
[t]he Lewis majority impermissibly legislated from the bench in allowing its own perception concerning the lack of “sophistication” possessed by no-fault claimants, as well as its speculation that the average claimant expects payment without the necessity for litigation, to supersede the plainly expressed legislative intent that recovery of PIP benefits be limited to losses incurred within the year prior to the filing of the lawsuit. [Devillers, supra at 582-583 (emphasis added).]
The Supreme Court’s holding in Devillers supports the conclusion that equitable or judicial tolling does not *599 apply in this case because the plain language in the relevant statutes, MCL 600.5805(5), 600.5852, and 600.5856, does not contemplate the possibility of judicial tolling. See Mazumder, supra at 71 (HOEKSTRA, EJ., dissenting) (opining that “[a]s 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,” which “relief is beyond the authority of this Court”).
Furthermore, the Supreme Court in
Devillers
expressly distinguished
Bryant,
in which the Court found that, in light of the plaintiffs understandable confusion regarding the nature of her claims, i.e., whether medical malpractice or ordinary negligence, “[t]he equities of this case” warranted suspension of the applicable periods of limitations.
Bryant, supra
at 432. The Supreme Court in
Devillers
explained in relevant part that, unlike the involvement of the plain statutory language of MCL 500.3145(1) in the case before it, “in
Bryant,
there was no controlling statute negating the application of equity.”
Devillers, supra
at 591 n 65. In
Titan Ins Co v North Pointe Ins Co,
In summary, the majority in
Mazumder
ignored the controlling Michigan Supreme Court precedent in
Devillers, Garg,
and
Secura Ins Co,
which dictates that, in
*600
the absence of any hint that the Legislature intended for equitable or judicial tolling to apply, a court may not apply tolling contrary to the plain statutory language of MCL 600.5852 and 600.5856. The majority in
Mazumder
seems also to have disregarded the well-established principle that “the doctrine of stare decisis requires [the Court of Appeals] to follow the majority decisions of the [Michigan] Supreme Court, even when [the Court of Appeals] disagreed] with them.”
Detroit v Vavro,
3. QUESTIONABLE MERITS OF MAZUMDER MAJORITY’S EQUITABLE TOLLING ANALYSIS
With respect to the majority’s equitable tolling analysis in Mazumder, we also note that the majority concluded that the plaintiff justifiably relied on the confusing dicta in Omelenchuk, but the majority failed to recognize or address the Supreme Court’s pre Omelenchuk characterization of MCL 600.5852 as a saving provision, not a statute of limitations. Lindsey, supra at 58-69. 7 We agree with Judge HOEKSTRA, who provided the dissenting opinion in Mazumder:
*601 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. 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 the application of the doctrine of equitable tolling. Indeed, as recognized by the Court in Waltz, and again by this Court in Ousley, a diligent and reasonable reading of the relevant precedents and statutory language plainly advises that a medical malpractice plaintiffs filing of a notice of intent to sue does not toll the wrongful death saving provision. [Mazumder, supra at 69 (HOEKSTRA, EJ., dissenting) (citations omitted; emphasis added).]
Given (1) that the plain language of MCL 600.5852 and 600.5856 does not contemplate equitable or judicial tolling and (2) the interrelationship of Lindsey, Omelenchuk, and Miller (discussed in Judge HOEKSTEA’s dissent in Mazumder), which does not give rise to a reasonable basis for a belief that Omelenchuk implicitly overruled Lindsey, we disagree that applying the statutory period of limitations to cases like Mazumder would occasion *602 some fundamental unfairness or warrant the extraordinary application of the equitable or judicial tolling doctrine.
III. CONCLUSION
For the reasons stated above, we believe that Mazumder was wrongly decided. Although we disagree with Mazumder, we nonetheless follow it as required by MCR 7.215(J)(2). Accordingly, we conclude that the trial court should have denied defendants’ motions for summary disposition on the basis that, although the statutory period of limitations expired, it was tolled by principles of equity, thereby rendering plaintiffs complaint timely. We recommend that this case be submitted to a special conflict panel pursuant to MCR 7.215(J)(3).
Reversed and remanded. We do not retain jurisdiction.
Notes
Now MCL 600.5805(6).
The statute allows a plaintiff to file suit 154 days after mailing the notice of intent if the plaintiff does not receive a written response to the notice within 154 days of mailing. MCL 600.2912b(8). A plaintiff may also file suit before the 182 days expire if the plaintiff receives written notice from the defendant that the defendant does not intend to settle the claim. MCL 600.2912b(9).
3 Effective April 22, 2004, MCL 600.5856 was amended and subsection d became subsection c. The pertinent portion of the statute now reads:
The statutes of limitations or repose are tolled in any of the following circumstances:
*589 (c) At the time the notice is given in compliance with the applicable notice period under section 2912b, if during that period a claim would he barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given.
Because subsection d was in effect at the time the cause of action accrued, we refer to MCL 600.5856(d) throughout this opinion.
This Court in Mazumder also cited the Michigan Supreme Court’s orders in Forsyth, Wyatt, and Evans that directed this Court to apply Waltz retroactively. Mazumder, supra at 45 n 2.
The Court in Mazumder, supra at 59-60, also cited Pohutski, in which the Supreme Court, contrary to 14 years of consistent Supreme Court and Court of Appeals precedent, eliminated the trespass-nuisance exception to governmental immunity on the basis that the plain language of the governmental tort liability act did not contemplate the trespass-nuisance exception. Pohutski, supra at 678-679, 689-690, 693-699 (applying its ruling prospectively in light of the “extensive reliance” on the incorrect statutory interpretation the Supreme Court announced in 1988 and the “longstanding” nature of the incorrect interpretation).
In Bryant, the Supreme Court primarily analyzed the distinctions between a medical malpractice claim and a claim of ordinary negligence. Id. at 420-432. The Supreme Court determined that, although the plaintiff had brought an action for ordinary negligence, several of her allegations sounded in medical malpractice and that the two-year medical malpractice period of limitations in MCL 600.5805(6), as well as the wrongful death saving period in MCL 600.5852, had expired. Id. at 424-432. The Supreme Court nonetheless reasoned that
[t]he equities of this case . .. 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, even in the wake of our opinion in Dorris [v Detroit Osteopathic Hosp Corp,460 Mich 26 ;594 NW2d 455 (1999)]. Plaintiffs 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. Accord *597 ingly, for this case and others now pending that involve similar procedural circumstances, we conclude that plaintiffs medical malpractice claims may proceed to trial along with plaintiffs ordinary negligence claim. MCR 7.316(A)(7). However, in future cases of this nature, in which the line between ordinary negligence and medical malpractice is not easily distinguishable, plaintiffs are advised as a matter of prudence to file their claims alternatively in medical malpractice and ordinary negligence within the applicable period of limitations. [Bryant, supra at 432-433.]
Neither the majority opinion in Mullins nor the dissent in McLean, supra at 204-208 (O’Connell, EJ., dissenting), to which the majority in *601 Mullins refers, mentions the Supreme Court’s 1997 Lindsey characterizations of MCL 600.5852 as a saving provision, distinct from a statute of limitations.