Mazumder v. Univ. Of Mich.
| Decision Date | 23 February 2006 |
| Docket Number | Docket No. 261333.,Docket No. 261331. |
| Citation | 270 Mich. App. 42,715 N.W.2d 96 |
| Parties | 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 | Court of Appeal of Michigan — District of US |
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.
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.
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.
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.
Plaintiff Monika Mazumder filed this action as personal representative of the estate of the decedent, Deepika S. Mazumder, following Deepika's death on June 3, 2000. According to plaintiff's complaint, Deepika committed suicide as a result of defendants' negligence in treating her mental illness.
Personal representative letters of authority were issued for Deepika's estate on May 2, 2002.4 Plaintiff filed a notice of intent for the medical malpractice action on April 27, 2004, and subsequently filed her complaint on October 21, 2004. Presuming that the saving period was tolled during the 182-day notice period, plaintiff calculated that she had the remainder of the two-year saving period in which to file her complaint, and thus the complaint was timely filed.5
Waltz was decided on April 14, 2004. Under the analysis in Waltz, plaintiff's action would be time-barred because Waltz held that the notice tolling provision, 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.
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) (), 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.
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).
The trial court denied defendants' motions for summary disposition on the grounds that plaintiff's complaint was timely filed in light of what the court perceived as a "five-year ceiling" in 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...
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