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STATE OF MICHIGAN
COURT OF APPEALS


MATT WARD, Personal Representative of the Estate of HOWARD WARD, Plaintiff-Appellant, V

FOR PUBLICATION April 13, 2006 9:10 a.m.

No. 265599 Ingham Circuit Court LC No. 03-001864-NH

JOHN C. SIANO, JR., M.D., LANSING INTERNAL MEDICINE ASSOCIATES, P.C., and EDWARD W. SPARROW HOSPITAL ASSOCIATION, Defendants-Appellees.

Official Reported Version

Before: Kelly, P.J., and Jansen and Talbot, JJ. PER CURIAM. 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 Bd of Regents, 270 Mich App 42; ___ NW2d ___ (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 NW2d 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. I. Facts 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.

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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 NW2d 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. II. Analysis A. Standard of Review 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 NW2d 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 NW2d 792 (2003), quoting Farm Bureau Mut Ins Co v Combustion Research Corp, 255 Mich App 715, 720; 662 NW2d 439 (2003). B. Application of Waltz 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

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Detroit, Inc, 248 Mich App 640, 646; 645 NW2d 279 (2001), rev'd on other grounds 468 Mich 29 (2003). "The general period of limitation for a malpractice action is two years." Miller v Mercy Mem Hosp, 466 Mich 196, 199; 644 NW2d 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 NW2d 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:

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Now MCL 600.5805(6).

The statute allows a plaintiff to file suit 154 days after mailing the notice of intent if the plaintiff does not receive a written response to the notice within 154 days of mailing. MCL 600.2912b(8). A plaintiff may also file suit before the 182 days expire if the plaintiff receives written notice from the defendant that the defendant does not intend to settle the claim. MCL 600.2912b(9). Effective April 22, 2004, MCL 600.5856 was amended and subsection d became subsection c. The pertinent portion of the statute now reads: The statutes of limitations or repose are tolled in any of the following circumstances: * * * (c) At the time the notice is given in compliance with the applicable notice period under section 2912b, if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given. Because subsection d was in effect at the time the cause of action accrued, we refer to MCL 600.5856(d) throughout this opinion.
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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. 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 (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 (emphasis in original). This exception to the limitations period cannot be tolled by MCL 600.5856(d). Id. at 651-652. The Court continued, "The source of the confusion surrounding our holding in Omelenchuk stems in part from our passing references to

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