Mullins v. St. Joseph Hosp.

• Decision Date: 11 July 2006
• Docket Number: Docket No. 263210.
• Citation: 722 N.W.2d 666,271 Mich. App. 503
• Parties: Mary MULLINS, Personal Representative of the Estate of Nina F. Mullins, Deceased, Plaintiff-Appellee, v. ST. JOSEPH MERCY HOSPITAL, d/b/a St. Joseph Mercy Health System, Jason White, M.D., Rafael J. Grossman, M.D., and Kimberly Stewart, M.D., Defendants-Appellants, and James R. Bengston and Walter Whitehouse, M.D., Defendants.
• Court: Court of Appeal of Michigan — District of US

722 N.W.2d 666

271 Mich. App. 503

Mary MULLINS, Personal Representative of the Estate of Nina F. Mullins, Deceased, Plaintiff-Appellee, v. ST. JOSEPH MERCY HOSPITAL, d/b/a St. Joseph Mercy Health System, Jason White, M.D., Rafael J. Grossman, M.D., and Kimberly Stewart, M.D., Defendants-Appellants, and James R. Bengston and Walter Whitehouse, M.D., Defendants.

Docket No. 263210.

Court of Appeals of Michigan.

Submitted June 19, 2006, at Lansing.

Decided July 11, 2006, at 9:10 a.m.

Released for Publication October 2, 2006.

Allan Falk, P.C. (by Allan Falk), Okemos, for Mary L. Mullins.

Johnson & Wyngaarden, P.C. (by David R. Johnson and Michael L. Van Erp), Kimberly Stewart, M.D., Jason White, M.D. and Rafael Grossman, M.D., Okemos, for St. Joseph Mercy Hospital.

Mark Granzotto, P.C. (by Mark Granzotto), Royal Oak, for the Michigan Trial Lawyers Association.

Before: HOEKSTRA, P.J., and MURPHY, WHITE, TALBOT, METER, COOPER, and DONOFRIO, JJ.

TALBOT, J.

This Court convened this special panel pursuant to MCR 7.215(J)(3) to resolve the conflict between vacated part III of the prior opinion in this case, Mullins v. St. Joseph Mercy Hosp., 269 Mich.App. 586, 591-593, 711 N.W.2d 448 (2006), and Ousley v. McLaren, 264 Mich.App. 486, 691 N.W.2d 817 (2004). Part III of the prior opinion disagreed with this Court's holding in Ousley, supra at 493-495, 691 N.W.2d 817, that the Supreme Court's holding in Waltz v. Wyse, 469 Mich. 642, 677 N.W.2d 813 (2004), applies with full retroactivity. In light of the fact that the Michigan Supreme Court has plainly and unambiguously expressed its intent that the decision in Waltz applies retroactively, we reject the analysis in part III of the prior opinion in Mullins, and reaffirm the retroactivity conclusion reached in Ousley.

This conflict presents a narrow question concerning the state of the law governing the retroactivity of Waltz at the time this Court issued its prior opinion in Mullins. In Ousley, supra at 493-495, 691 N.W.2d 817, this Court first addressed the Waltz retroactivity question in a binding published opinion, MCR 7.215(J)(1), holding that Waltz applied with full retroactivity. The Michigan Supreme Court denied the plaintiff's application for leave to appeal. Ousley v. McLaren, 472 Mich. 927, 697 N.W.2d 525 (2005). The Supreme Court's order denying leave does not constitute binding precedent, MCR 7.321, but the timing of the order is a relevant background fact.¹

On June 17, 2005, one day after the Michigan Supreme Court denied the plaintiff's application for leave to appeal in Ousley, the Supreme Court very clearly expressed its view regarding the extent to which courts should retroactively apply its holding in Waltz, supra at 648-655, 677 N.W.2d 813. In three consecutive orders, the Michigan Supreme Court offered the following, specific guidance:

In lieu of granting leave to appeal, the case is remanded to the Court of Appeals for consideration, as on leave granted, of the question whether the statute of limitations bars an action from proceeding where the complaint was filed more than two years after the original letters of authority and before the subsequent letters of authority were issued. That Court is to give the holding of Waltz v. Wyse, 469 Mich. 642, 677 N.W.2d 813 (2004), full retroactive application. [Wyatt v. Oakwood Hosp. & Med. Ctrs, 472 Mich. 929 (2005) (citation omitted; third emphasis added).]

In lieu of granting leave to appeal, the case is remanded to the Court of Appeals for consideration, as on leave granted, of the question whether the statute of limitations bars an action from proceeding where the complaint was filed more than two years after the original letters of authority and before the subsequent letters of authority were issued. That Court is to give the holding of Waltz v. Wyse, 469 Mich. 642, 677 N.W.2d 813 (2004), full retroactive application. [Evans v. Hallal, 472 Mich. 929, 697 N.W.2d 526 (2005) (citation omitted; third emphasis added).]

In lieu of granting leave to appeal, the case is remanded to the Court of Appeals for consideration as on leave granted. That Court is to give the holding of Waltz v. Wyse, 469 Mich. 642, 677 N.W.2d 813 (2004), full retroactive application. [Forsyth v. Hopper, 472 Mich. 929, 697 N.W.2d 526 (2005) (citation omitted; emphasis added).]

We find that the repeated and plain expressions of the Michigan Supreme Court in Wyatt, Evans, and Forsyth, which the majority in Mullins entirely failed to address, are dispositive of the Waltz retroactivity issue in this Court. Irrespective of the prior Mullins opinion's proffered disagreement with the analysis in Ousley, the panel in Mullins erred by disregarding these Supreme Court directives.

In recent supplemental briefing, plaintiff suggests that the orders in Wyatt, Evans, and Forsyth lack any precedential effect because they do not sufficiently explicate the Michigan Supreme Court's reasoning behind its directives to apply Waltz with full retroactivity. The requirement that a decision of our Supreme Court "shall contain a concise statement of the facts and reasons for each decision" derives from the Michigan Constitution. Const. 1963, art. 6, § 6. The Michigan Supreme Court has recognized that its summary disposition orders constitute binding precedent when they "contain[] a concise statement of the applicable facts and the reason for the decision." People v. Crall, 444 Mich. 463, 464 n. 8, 510 N.W.2d 182 (1993). Similarly, this Court consistently has adhered to the principle that the Michigan Supreme Court's summary disposition orders constitute binding precedent when they finally dispose of an application and are capable of being understood, even by reference to other published decisions. Evans & Luptak, PLC v. Lizza, 251 Mich.App. 187, 196, 650 N.W.2d 364 (2002); Wechsler v. Wayne Co. Rd. Comm., 215 Mich.App. 579, 591 n. 8, 546 N.W.2d 690 (1996), remanded on other grounds 455 Mich. 863, 567 N.W.2d 252 (1997).

Our treatment of the Supreme Court's orders in Wyatt, Evans, and Forsyth as binding precedent does not undermine Const. 1963, art. 6, § 6. First, the Supreme Court's orders in Wyatt and Evans each contain a concise statement of the operative facts where they state that "the complaint was filed more than two years after the original letters of authority and before the subsequent letters of authority were issued." (Emphasis omitted). Second, each of the three orders contains "reasons for each decision" through explicit reference to the Supreme Court's published decision in Waltz. Additionally, although the June 17, 2005, orders in Wyatt, Evans, and Forsyth do not specifically cite this Court's decision in Ousley, or other cases discussing principles of retroactivity, our Supreme Court was certainly cognizant of this Court's retroactivity analysis in Ousley, supra at 493-495, 691 N.W.2d 817, when it similarly concluded in Wyatt, Evans, and Forsyth that the decision in Waltz applies retroactively. We cannot forget or ignore that only the day before entry of the three June 17, 2005, orders, the Supreme Court had denied the Ousley plaintiff's application for leave to appeal, declining the opportunity to disturb this Court's conclusion that Waltz must apply with full retroactivity. When the Supreme Court entered the orders directing full retroactive application of Waltz, it essentially sanctioned the retroactivity conclusion reached by this Court in Ousley. Thus, considering the Supreme Court orders in Wyatt, Evans, and Forsyth in the context in which the Supreme Court entered them, the orders easily can be understood to contain "the facts and reasons for each decision" by reference to the full, published decisions in Waltz and Ousley, in satisfaction of the constitutional mandate. Wechsler, supra at 591 n. 8, 546 N.W.2d 690, citing Crall, supra at 464 n. 8, 510 N.W.2d 182.

In summary, the Supreme Court held in Waltz, supra at 648-655, 677 N.W.2d 813, that pursuant to then-applicable MCL 600.5856(d), now MCL 600.5856(c), a medical malpractice litigant's filing of a notice of intent does not toll the wrongful death saving period in MCL 600.5852, and this Court in Ousley, supra at 493-495, 691 N.W.2d 817, held that Waltz applies retroactively. When read together and in reference to Waltz and Ousley, we view the Supreme Court's orders in Wyatt, Evans, and Forsyth as complete and understandable. We, therefore, reject plaintiff's contention that the Supreme Court's one-sentence retroactivity statement in a single order, viewed alone and without context, lacks sufficient specificity to control the retroactivity question. We reiterate that the Supreme Court entered three separate orders in three distinct cases involving the issue of Waltz's retroactivity. Each of these cases plainly and unambiguously directed this Court to apply Waltz retroactively. We cannot reasonably characterize the Supreme Court's three consecutive June 17, 2005, orders, which identically directed the proper retroactive application of Waltz, as limited to the facts of their respective cases. The Supreme Court could not have more clearly expressed its conclusion that Waltz applies retroactively in all cases.

To the extent that we ideally might wish to have access to more fully developed guidance from the Supreme Court concerning the retroactivity of Waltz, the Supreme Court plainly found that the Waltz retroactivity question required no further analysis by it, and we simply cannot disregard the clear import of the guidance that the Supreme Court chose to offer in Wyatt, Evans, and Forsyth, specifically, that Waltz applies retroactively in all cases. A review of the Michigan Reports volumes reveals that the Supreme Court occasionally directs the retroactive reach of its prior decisions by orders of summary disposition.² In Wyatt, Evans, and Forsyth, the Supreme Court has repeatedly spoken through its orders instructing this Court to apply Waltz with full retroactivity, and,...