Ward v. Siano
| Decision Date | 13 April 2006 |
| Docket Number | Docket No. 265599. |
| Citation | 718 N.W.2d 371,270 Mich. App. 584 |
| Parties | Matt WARD, Personal Representative of the Estate of Howard Ward, Plaintiff-Appellant, v. John C. SIANO, Jr., M.D., Lansing Internal Medicine Associates, P.C., and Edward W. Sparrow Hospital Association, Defendants-Appellees. |
| Court | Court of Appeal of Michigan — District of US |
Mark Granzotto, P.C. (by Mark Granzotto), and Elizabeth Gleicher, P.L.L.C. (by Elizabeth Gleicher), Royal Oak, Royal Oak, for Matt Ward.
Johnson & Wyngaarden, P.C. (by Robert M. Wyngaarden and Michael L. Van Erp), Okemos, for John C. Siano, Jr.; and Lansing Internal Medicine Associates, P.C.
Plunkett & Cooney, P.C. (by Robert G. Kamenec), Bloomfield Hills, for Edward W. Sparrow Hospital Association.
Before: KELLY, P.J., and JANSEN and TALBOT, JJ.
Ward v. Siano, 270 Mich.App. 801, 270 Mich.App. 584. The Court orders that a special panel shall be convened in accordance with MCR 7.215(J) to resolve the conflict between this case and Mazumder v. Univ. of Michigan Regents, 270 Mich. App. 42, 715 N.W.2d 96 (2006).
The Court further orders that part II(D) of the opinion released on April 13, 2006, which addresses the applicability of the doctrine of equitable tolling in cases affected by the retroactive application of Waltz v. Wyse, 469 Mich. 642, 677 N.W.2d 813 (2004), is vacated. MCR 7.215(J)(5).
Appellant may file a supplemental brief within 21 days of the Clerk's certification of this order. Appellees may file a supplemental brief within 21 days of service of appellant's brief. Nine copies must be filed with the Clerk of the Court.
Plaintiff 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 Regents, 270 Mich.App. 42, 715 N.W.2d 96 (2006). However, we disagree with the Mazumder holding that equitable tolling is appropriate in cases affected by the retroactive application of our Supreme Court's ruling in Waltz v. Wyse, 469 Mich. 642, 677 N.W.2d 813 (2004). Pursuant to MCR 7.215(J)(2), we declare a conflict with Mazumder and state that, if we were not obligated to follow Mazumder, we would affirm.
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 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, P.C., filed a motion for summary disposition under MCR 2.116(C)(4), (7), and (10), arguing, in relevant part, that plaintiff's 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, 461 Mich. 567, 609 N.W.2d 177 (2000), overruled in part by Waltz, and MCL 600.5852 and 600.5856(d), he mailed notices of intent on May 9, 2003, thereby tolling the time period for filing a complaint for 182 days. He argued that Waltz, which was decided six months after he filed his complaint, was not controlling in this case. Plaintiff also argued that, if Waltz was applicable, his claim should be subject to judicial tolling.
The trial court determined that Waltz was applicable to plaintiff's claim and entered an order granting defendants' motions for summary disposition. On appeal, plaintiff contends that the trial court erred in dismissing his claim.
This Court reviews de novo whether the statutory period of limitations bars a claim. Farley v. Advanced Cardiovascular Health Specialists, PC, 266 Mich.App. 566, 570-571, 703 N.W.2d 115 (2005). A motion for summary disposition under MCR 2.116(C)(7) permits summary disposition when a claim is barred by the statutory period of limitations. In reviewing such a motion, "`a court must accept as true a plaintiff's well-pleaded factual allegations, affidavits, or other documentary evidence and construe them in the plaintiff's favor.'" Geralds v. Munson Healthcare, 259 Mich.App. 225, 229-230, 673 N.W.2d 792 (2003), quoting Farm Bureau Mut. Inc. v. Combustion Research Corp., 255 Mich.App. 715, 720, 662 N.W.2d 439 (2003).
There is no question that plaintiff's 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., 248 Mich.App. 640, 646, 645 N.W.2d 279 (2001), rev'd on other grounds 468 Mich. 29, 658 N.W.2d 139 (2003). "The general period of limitation for a malpractice action is two years." Miller v. Mercy Mem. Hosp., 466 Mich. 196, 199, 644 N.W.2d 730 (2002), citing MCL 600.5805(5).1 "In general, a plaintiff in a medical malpractice case must bring his claim within two years of when the claim accrued, or within six months of when he discovered or should have discovered his claim." Solowy v. Oakwood Hosp. Corp., 454 Mich. 214, 219, 561 N.W.2d 843 (1997); MCL 600.5805(1) and (6) and 600.5838a. Before a plaintiff can commence a medical malpractice action, the plaintiff must mail a notice of intent to file suit to each health care professional or health care facility the plaintiff wishes to sue. MCL 600.2912b. This notice of intent to file suit must be sent at least 182 days before suit is commenced.2 MCL 600.2912b(1). MCL 600.5856 states:
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
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 Omelenchuk, in which our Supreme Court referred to MCL 600.5852 as setting forth a "limitation period." Omelenchuk, supra at 577, 609 N.W.2d 177. 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, 677 N.W.2d 813 (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, 677 N.W.2d 813 (emphasis in original). This exception to the limitations period cannot be tolled by MCL 600.5856(d). Id. at 651-652, 677 N.W.2d 813. 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, 609 N.W.2d 177. The Court clarified that MCL 600.5852 does not create a separate limitations period, but is a saving statute. Id. at 654, 609 N.W.2d 177. The Court held, "To the limited extent . . . Omelenchuk might be viewed as sanctioning...
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Ward v. Siano
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Mazumder v. University of Michigan Regents, Docket No. 130836.
...DENIED without prejudice to the filing of another motion following the Court of Appeals conflict panel decision in Ward v. Siano, 270 Mich.App. 584, 718 N.W.2d 371 (2006). The application for leave to appeal the February 23, 2006 judgment of the Court of Appeals remains ...