Ward v. Rooney-Gandy

Decision Date17 May 2005
Docket NumberDocket No. 250174.
Citation265 Mich. App. 515,696 N.W.2d 64
PartiesRonald WARD, Plaintiff-Appellant, v. Sharon ROONEY-GANDY, D.O., Defendant-Appellee.
CourtCourt of Appeal of Michigan — District of US

Kelman, Loria, Will, Harvey & Thompson (by Charles H. Chomet), Detroit, for the plaintiff.

Aardema, Whitelaw & Sears-Ewald, PLLC (by Dolores Sears-Ewald and Timothy P. Buchalski), Ada, for the defendant.

Before: MARKEY, P.J., and MURPHY and O'CONNELL, JJ.


Plaintiff appeals as of right the trial court's order granting summary disposition in favor of defendant pursuant to MCR 2.116(C)(7) in this medical malpractice action, in which plaintiff's counsel, through inadvertent clerical error, filed a timely affidavit of merit with the complaint, but which affidavit related to another medical malpractice client of the law firm. A proper affidavit of merit relative to plaintiff had been timely prepared and executed less than a year after the alleged malpractice occurred and well before the complaint was filed. The trial court dismissed the complaint without prejudice because of the deficient affidavit. Plaintiff filed a new action; however, it was filed beyond the two-year limitations period for medical malpractice claims, and the trial court ruled that the filing of the initial complaint and affidavit did not toll the period of limitations. We reverse, invoking the doctrine of equitable tolling, also referred to as judicial tolling, and relying on our Supreme Court's decision in Bryant v. Oakpointe Villa Nursing Ctr. Inc., 471 Mich. 411, 432, 684 N.W.2d 864 (2004).1

This Court reviews de novo a trial court's ruling on a motion for summary disposition. Koenig v. South Haven, 460 Mich. 667, 674, 597 N.W.2d 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 N.W.2d 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 C.J.S., Limitations of Actions, § 86, p. 122. In Lewis v. Detroit Automobile Inter-Ins. Exch., 426 Mich. 93, 102, 393 N.W.2d 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 U.S. 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 N.W. 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 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[.]"

In Bryant, supra at 432, 684 N.W.2d 864, 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 to MCL 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 circumstances, plaintiff's February 7, 2001, medical malpractice 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. Accordingly, 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 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, 684 N.W.2d 864. An element of equitable tolling is that a plaintiff must exercise reasonable diligence in investigating and bringing his claim. Id. at § 175, p. 564. In Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 96, 111 S.Ct. 453, 112 L.Ed.2d 435 (1990), the United States Supreme Court noted that it had "allowed equitable tolling in situations where the claimant has actively pursued his judicial remedies by filing a defective pleading during the statutory period[.]" In support, the Supreme Court cited, in part, Burnett v. New York Central R Co., 380 U.S. 424, 85 S.Ct. 1050, 13 L.Ed.2d 941 (1965), in which the plaintiff filed a timely complaint, but in the wrong court. Irwin, supra at 96 n. 3.

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 prerequisites 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 malpractice actions is two years. MCL 600.5805(6). With respect to the principles and purposes underlying statutes of limitations, our Supreme Court in Lothian v. Detroit, 414 Mich. 160, 166-167, 324 N.W.2d 9 (1982), enunciated:

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 N.W. 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 N.W. 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 N.W.2d 328 (1974)]; they prevent fraudulent claims from being asserted, Bailey v. Glover, 88 U.S. (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 N.W. 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 N.W.2d 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 defendant arose dates back to October 2000. Less than a year later, in August 2001, plaintiff served the required notice of intent under MCL 600.2912b. Shortly after the 182-day notice period expired, in March 2002, plaintiff filed his complaint with an attached affidavit of merit. Although the affidavit of merit did not relate to the case because of the inadvertent clerical filing error, there is no dispute that a...

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