Opinion
SC: 165172 COA: 356925
10-06-2023
Matthew PONIEWIERSKI, Personal Representative of the Estate of Ashley Poniewierski, Plaintiff-Appellant, v. WILLIAM BEAUMONT HOSPITAL ROYAL OAK, Ascension St. John Macomb-Oakland Hospital, Michigan Healthcare Professionals, PC, d/b/a Oakland Medical Group, Ronald Rasansky, D.O., Stephen Hoffman, D.O., Zuie C. Wakade, D.O., Tusar Desai, M.D., and Akriti Dewanwala, M.D., Defendants-Appellees.
Order
On order of the Court, the application for leave to appeal the December 1, 2022 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court.
Welch, J., (dissenting).
I respectfully dissent from the Court's decision to deny leave to appeal in this matter. I believe important questions have been raised by the plaintiff about whether Waltz v Wyse , 469 Mich. 642, 677 N.W.2d 813 (2004), interpreted MCL 600.5852 correctly. Specifically, MCL 600.5852 provides the personal representative of a decedent additional time to file a medical malpractice lawsuit after they receive letters of authority. Although providing a notice of intent (NOI) tolls the running of the usual two-year statute of limitations period for medical malpractice actions, Waltz held that an NOI does not toll the additional time period granted to a personal representative of a decedent filing a lawsuit. I question whether Waltz ’s holding is contrary to the text of the statute and intent of the Legislature. As a result, I would have ordered additional briefing and oral argument in this matter.
Under MCL 600.5805(8), plaintiffs generally have two years to bring a medical malpractice claim. And under MCL 600.2912b, plaintiffs are required to provide an NOI to defendants in medical malpractice cases at least 182 days prior to filing a complaint. The running of the two-year statute of limitations period is tolled during the 182-day NOI period—meaning that if the NOI is provided towards the end of the two-year period of limitations, the time within which the complaint must be filed will extend beyond the limitations period up to the balance of the 182-day NOI period. MCL 600.5856(c).
When someone has died allegedly because of medical malpractice and a personal representative takes legal action, MCL 600.5852 provides additional time for the lawsuit to be filed. MCL 600.5852 provides that when a decedent dies before the statute of limitations period has run, or within 30 days of it running, the personal representative has an additional two years to commence a lawsuit from the date the letters of authority are issued, not to exceed three years after the statute of limitations period has run. MCL 600.5852.
In Waltz , the Court held that the NOI tolling provision in MCL 600.5856(d) applied only to the two-year statute of limitations. It concluded that since the additional time period provided in MCL 600.5852 to file a lawsuit constituted a saving statute (akin to a grace period), an NOI provided during the saving time period did not toll the time period within which plaintiff had to file a lawsuit. Waltz , 469 Mich. at 649-650, 677 N.W.2d 813, citing Miller v Mercy Mem. Hosp. Corp , 466 Mich. 196, 644 N.W.2d 730 (2002) (holding that 600.5852 "is a saving statute, not a statute of limitations"), and Lindsey v Harper Hosp , 455 Mich. 56, 65, 564 N.W.2d 861 (1997) (holding that MCL 500.5852 is an "exception to the statute of limitations" ). Justice CAVANAGH dissented and was joined by Justice KELLY . The dissent emphasized that the Court's new interpretation of MCL 600.5856 and MCL 600.5852 prejudiced wrongful death plaintiffs in a way unintended by the Legislature. Justice CAVANAGH noted that wrongful death plaintiffs are bound by the MCL 600.2912b NOI mandate, and therefore, the majority had effectively curtailed the period the Legislature expressly permitted for wrongful death plaintiffs by 182 days. Waltz , 469 Mich. at 669, 677 N.W.2d 813 ( CAVANAGH , J., dissenting). He emphasized that "the two years expressly provided [to a personal representative of a decedent] under the saving provision are effectively reduced to one-and-a-half years ...." Id. at 671, 677 N.W.2d 813.
In this case, the alleged malpractice happened between February 25 and April 20, 2017. The decedent died on June 12, 2017. Plaintiff was appointed as the personal representative of the decedent's estate on May 14, 2018; provided defendants with an NOI on April 20, 2020; and, relying on the two-year wrongful death saving provision set forth in MCL 600.5852, filed this lawsuit on October 23, 2020. The trial court dismissed plaintiff's lawsuit as untimely because, pursuant to Waltz , it concluded that the NOI tolling provision did not apply to cases commenced under MCL 600.5852. In other words, the April 20, 2020 NOI did not toll the wrongful death statute's two-year saving provision. The lawsuit had to be filed within two years of May 14, 2018. Since it was filed in October 2020, it was deemed untimely.
I question the differing treatment of the tolling effect of an NOI between a case where someone has died ( MCL 600.5852 ) and a case where someone has not died ( MCL 600.5805 ). The dissenting justices in Waltz may be correct that the distinction between a saving statute and a statute of limitations adopted by the majority is contrary to the plain meaning of MCL 600.5852. Until Waltz , this Court acknowledged differences between statutes of limitations and saving provisions, but it recognized that the purpose of the MCL 600.5852 saving statute was " ‘to preserve actions that survive death in order that the representative of the estate may have a reasonable time to pursue such actions. ’ " Miller , 466 Mich. at 203, 644 N.W.2d 730, quoting Lindsey , 455 Mich. at 66, 564 N.W.2d 861 (emphasis added).
I believe plaintiff's request for us to relook at Waltz has potential merit. For the above-mentioned reasons, I respectfully dissent from this Court's decision.
Cavanagh and Bolden, JJ., join the statement of Welch, J.