Ruling based on medical malpractice helps clarify the effect of a notice of intent on the deadline for commencing an action.

In a wrongful death action based on medical malpractice, the plaintiff/Personal Representative of the estate has the option of filing the action within the applicable medical malpractice statute of limitations, which is typically two years according to MCL 600.5805 (6) (except in cases involving infancy, insanity, incarceration, or the discovery rule). The two year statute of limitations can be extended by operation of MCL 600.5856 (c), which provides that in a medical malpractice action, filing a notice of intent pursuant to MCL 600.2912b, “tolls” or stops the statute of limitations or statute of repose from running for 182 days plus the number of days left in the statute of limitations when the notice of intent was sent. The limitations period for a wrongful death action is based on the underlying theory of liability. Therefore, MCL 600.5856 (c) permits tolling in a wrongful death action if the notice of intent case is filed within the applicable medical malpractice statute of limitations.

The plaintiff in a wrongful death action can also file the action within the “wrongful death savings provision” of MCL 600. 5852, which provides that if a person dies during the applicable statute of limitations, or within 30 days thereafter, the personal representative has two years from the date letters of authority are issued to commence an action. However, the action must be commenced within three years after the statute of limitations applicable to the underlying theory of liability expires. MCL 600.5856 (c) does not provide for tolling of a “savings provision,” such as the wrongful death savings provision in MCL 600.5852. Thus, in a wrongful death action based on medical malpractice, a notice of intent filed after the applicable medical malpractice statute of limitations has expired, has no effect.

However, the Michigan Supreme Court’s ruling in Omelenchuk v City of Warren , 461 Mich 567 (2000), unintentionally created confusion about the effect of filing a notice of intent during the wrongful death savings provision. The Court erroneously referred to the “wrongful death savings provision” as a “limitation period” and erroneously used the date that the personal representative’s letters of authority were issued to calculate the “limitations period.” The Court’s language and calculation of the “limitations period” implied that plaintiff’s notice of intent tolled the wrongful death savings provision.

In Waltz v Wyse, 469 Mich 642 (2004), the Supreme Court rectified its previous mistakes in Omelenchuk by holding that according to its plain language, MCL 600.5856(c) applies only to statutes of limitations or statutes of repose and not savings statutes. Therefore, according to the plain and unambiguous language of MCL 600.5856(c), a notice of intent cannot toll the wrongful death savings provision contained in MCL 600.5852.

In Ousley v McLaren, 264 Mich App 486 (2004), the Michigan Court of Appeals held that Waltz was fully retroactive. See, also, Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566 (2005); Lentini v Urbancic (On Remand), 267 Mich App 579 (2005); Estate of Harris v Bolling, 267 Mich App 667 (2005); McLean v McElhaney, 269 Mich App 196 (2005); Wyatt v Oakwood Hosp & Med Ctrs (Order), 472 Mich 929 (2005); Forsyth v Hopper (Order), 472 Mich 929 (2005) and Evans v Hallal (Order), 472 Mich 929 (2005).

However, in Mullins v St. Joseph Mercy Hosp, 269 Mich App 586 (2006), a panel of the Court of Appeals declared a conflict with Ousley, because it felt that Waltz should only apply prospectively. The court opined that plaintiffs were justified in relying on Omelenchuk; that Waltz created an issue of first impression; and if it was not bound to follow Ousley, it would not apply Waltz to the case. In other words, tolling should be allowed in cases filed before Waltz was decided.

Following the conflict declared in Mullins, a Special Panel of the Court Of Appeals was convened to resolve the conflict between Mullins and Ousley. Mullins v St. Joseph Mercy Hosp (Order), 269 Mich App 801 (2006). The Mullins Special Panel’s July 11, 2006 decision upheld Ousley, and ruled that Waltz applies retroactively to all wrongful death cases. Mullins v St. Joseph Mercy Hosp (Decision of the Special Panel), ___ Mich App ___ (2006). The Panel’s decision relied heavily on the Michigan Supreme Court’s Orders in Wyatt, Forsyth and Evans, as evidence that the Supreme Court appreciated the significance of the Waltz decision, yet clearly wanted it to have full retroactive application. The Special Panel’s decision is significant because it means that a notice of intent does not toll the wrongful death savings in any wrongful death cases. (The Mullins Special Panel’s Opinion can be found at http://www.michbar.org/opinions/appeals/2006/071106/32414.pdf)

While the Mullins Special Panel’s decision held that a notice of intent does not toll MCL 600.5852 by operation of law, another recent Court of Appeals case, Mazumder v Univ of Mich Regents , 270 Mich App 42 (2006), held that equitable tolling is available to plaintiffs who calculated their limitations/savings periods and filed their notices of intent in reliance on Omelenchuk’s erroneous statements and calculation of the limitations period. The Mazumder court’s ruling, succinctly stated, is that if a notice of intent is sent after the applicable medical malpractice statute of limitations expired, but within the wrongful death savings provision, the notice of intent will be treated as if it tolled the wrongful death savings provision, if the tolling would have made the complaint timely.

A different Court of Appeals panel subsequently declared a conflict with Mazumder and opined that there should be no equitable tolling based on reliance on the Omelenchuk decision, which was contrary to the plain language of the tolling statute. Furthermore, the court indicated that if it was not bound to follow Mazumder, it would not apply equitable tolling to the case. Ward v Siano , 270 Mich App 584 (2006).

Following the conflict declared in Ward, the Court Of Appeals was polled and another Special Panel was ordered to be convened to resolve the conflict between Ward and Mazumder. Ward v Siano (Order), 270 Mich App 801 (2006). The Ward Special Panel meets on July 31, 2006 and its decision is not expected until mid-August.

Unless/until Mazumder is reversed, equitable tolling of the wrongful death savings provision may be found if a notice of intent is sent after the applicable medical malpractice statute of limitations expired, but within the wrongful death savings provision. However, Mazumder would only operate to save an otherwise untimely Complaint if tolling would have made the complaint timely. Furthermore, the Mazumder decision should only apply to cases in which the notice of intent was filed before the Ousley opinion was issued on October 7, 2004, and in cases in which the action could not be timely filed within the wrongful death savings provision even after the Ousley opinion was issued.

While it is impossible to predict what the Ward Special Panel will decide, it is quite possible that Mazumder will be reversed, since the Mazumder Court essentially disregarded the doctrine of stare decisis and concocted a poorly reasoned basis for not following Ousley and its progeny. Furthermore, the Mazumder court’s application of equitable tolling allows plaintiffs to avoid the retroactive application of Waltz, which is contrary to the Michigan Supreme Court’s intent, as evidenced by its Orders in Wyatt, Forsyth and Evans. The Mullins’ Special Panel’s findings concerning the Supreme Court’s intent in this regard should be of some persuasive value to the Ward Special Panel.

Significant Michigan Court of Appeals Ruling on Wrongful Death Savings Provision