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.
B. Statute of Limitations
§3.4 A wrongful death action is governed by the statute of limitations that applies to the underlying claim. Lindsey v Harper Hosp, 213 Mich App 422, 540 NW2d 477 (1995), aff’d, 455 Mich 56, 564 NW2d 861 (1997). When an individual has suffered an injury due to another’s negligence or malpractice, a wrongful death action may be pursued so long as the individual’s death occurs before, or within 30 days after, the period of limitation expires. MCL 600.5852.
Once all elements (including damages) of a personal injury action are present, the claim accrues and the statute of limitations begins to run. Later damages may result, but they do not give rise to a new cause of action nor extend the statute of limitations. Connelly v Paul Ruddy’s Equip Repair & Serv Co, 388 Mich 146, 200 NW2d 70 (1972).
The common-law “discovery rule” allowed tolling of a statutory period of limitation when a plaintiff could not have reasonably discovered the elements of a cause of action within the limitation period. In other words, a claim did not accrue until a plaintiff knew, or objectively should have known, that he or she had a cause of action and could allege it in a proper complaint. Moll v Abbott Labs, 444 Mich 1, 506 NW2d 816 (1993); Johnson v Caldwell, 371 Mich 368, 123 NW2d 785 (1963). However, in Trentadue v Gorton, 479 Mich 378, 738 NW2d 664 (2007), the Michigan Supreme Court overruled Johnson and its progeny and abolished the common-law discovery rule. The court concluded that the Revised Judicature Act (RJA) comprehensively established limitation periods, times of accrual, and tolling for civil cases and that the statutory scheme explicitly superseded the common law. Under MCL 600.5827, a claim accrues when the plaintiff is harmed, and courts may no longer employ an extrastatutory discovery rule to toll accrual.
Following the injured person’s death, an action may be commenced within two years after the personal representative has been appointed but no later than three years after the period of limitation would have expired, but for the death. Hardy v Maxheimer, 429 Mich 422, 416 NW2d 299 (1987); MCL 600.5852. A personal representative must be appointed before a wrongful death action may be filed. Warren v Howlett, 148 Mich App 417, 383 NW2d 636 (1986). If a complaint is filed before the probate court has entered an order appointing a personal representative, the complaint will not toll the statute of limitations. Id. However, if a plaintiff acts in a mistaken, but good faith, belief that the appointment has been made, the probate court may enter a nunc pro tunc order relating the appointment of the personal representative back to the date the wrongful death complaint was filed. Id.
MCL 600.5856(c), the medical malpractice notice tolling provision, which explicitly applies only to statutes of limitations or repose, does not operate to toll the additional period permitted under MCL 600.5852 for filing wrongful death actions. Waltz v Wyse, 469 Mich 642, 677 NW2d 813 (2004). The wrongful death saving provision is designed to preserve actions that survive death so that the representative of the estate may have a reasonable time to pursue such actions. It is not a statute of limitations or a statute of repose. Id. In Ousley v McLaren, 264 Mich App 486, 691 NW2d 817 (2004), the court held that Waltz applies retroactively. However, in Mullins v St Joseph Mercy Hosp, 480 Mich 948, 741 NW2d 300 (2007), the supreme court issued an order stating:[T]his Court’s decision in [Waltz] does not apply to any causes of action filed after [Omelenchuk v City of Warren, 461 Mich 567, 609 NW2d 177 (2000)], was decided in which the savings period expired, i.e., two years had elapsed since the personal representative was appointed, sometime between the date that Omelenchuk was decided and within 182 days after Waltz was decided. All other causes of action are controlled by Waltz.
Several other court of appeals decisions that followed Ousley have been reversed on the basis of Mullins. See, e.g., Ward v Siano, 272 Mich App 715, 730 NW2d 1 (2006), rev’d, 480 Mich 979, 741 NW2d 836 (2007); McLean v McElhaney, 269 Mich App 196, 711 NW2d 775 (2005) (summary disposition affirmed on basis of Waltz and Ousley), rev’d, 480 Mich 978, 741 NW2d 840 (2007); Mazumder v University of Michigan Bd of Regents, 270 Mich App 42, 715 NW2d 96 (2006), rev’d, 480 Mich 1045, 743 NW2d 889 (2008) (error to invoke equitable tolling).
Note that in Kidder v Ptacin, 284 Mich App 166, 771 NW2d 806 (2009), the court of appeals initially retroactively applied Waltz and dismissed plaintiff’s medical malpractice action as untimely. Plaintiff did not appeal that decision but later attempted to reinstate her action after the Michigan Supreme Court released its decision limiting Waltz’s retroactive application. The court of appeals found that because its prior decision was never reversed or otherwise vacated, it remained the law of the case and the trial court erred in reinstating plaintiff’s action.
The Michigan Supreme Court affirmed the court of appeals judgment in Ligons v Crittenton Hosp, 285 Mich App 337, 776 NW2d 361 (2009), aff’d, 490 Mich 61, 803 NW2d 271 (2011), holding that when a defective affidavit of merit is filed after both the limitation period and the savings period have expired, “dismissal with prejudice must follow because allowing amendment of the deficient [affidavit of merit] would directly conflict with the statutory scheme governing medical malpractice actions, the clear language of the court rules, and precedent of this court.” 490 Mich at 65.
In Burton v Macha, 303 Mich App 750, 846 NW2d 419 (2014), the court of appeals held that MCL 600.5852 does not toll the running of MCL 600.5838a’s six-year statute of repose for medical malpractice cases. Moreover, the court found that the filing of a conforming notice of intent tolls the statute of repose only if the six-year repose period would expire during MCL 600.2912b’s 182-day notice period. Because the repose statute was not tolled in this case, the court determined that plaintiff’s complaint was time-barred and that the circuit court erred in denying summary disposition to the defendants.
Where the initial personal representative dies before filing an action, the successor personal representative has an additional two-year period in which to file; MCL 600.5852 does not require that the two-year savings period be measured from the initial appointment of a personal representative. Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 658 NW2d 139 (2003). The issuance of letters of authority to a successor personal representative marks the beginning of a new saving period, whether or not (1) the appointment was prompted by necessity, (2) the initial representative had ample time to commence the action and his or her grace period expired, or (3) the same individual was appointed twice, once as the original personal representative and again as the successor. Carmichael v Henry Ford Hosp, 276 Mich App 622, 742 NW2d 387 (2007).
However, the subsequent appointment of a successor personal representative does not revive or reinstate a complaint that the original personal representative filed untimely, i.e., more than two years after the original personal representative was appointed. Estate of Harris v Bolling, 267 Mich App 667, 705 NW2d 720 (2005); see also Mullins.
In Washington v Sinai Hosp, 478 Mich 412, 733 NW2d 755 (2007), the supreme court resolved a conflict in the court of appeals by ruling that res judicata barred a successor personal representative from filing a new medical malpractice complaint after the initial personal representative’s complaint was involuntarily dismissed on statute of limitations grounds. Prior to this ruling, there were conflicting decisions in the court of appeals regarding the successor personal representative’s right to file a new action to overcome the first representative’s untimeliness.
In a wrongful death/medical malpractice case, a notice of intent sent by a predecessor personal representative can support a complaint filed by a successor personal representative; there is no requirement that these two actions be taken by the same natural person. Braverman v Garden City Hosp, 480 Mich 1159, 746 NW2d 612 (2008).
For medical malpractice causes of action that arise on or after March 28, 2013, see §3.39.