Mayberry v. General Orthopedics, PC

Michigan Supreme Court
Lansing, Michigan
Chief Justice: Justices:

Opinion Clifford W. Taylor Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

FILED OCTOBER 4, 2005

KEITH W. MAYBERRY and JOANNA
MAYBERRY,

Plaintiffs-Appellants,

v No. 126136

GENERAL ORTHOPEDICS, P.C., and
WILLIAM H. KOHEN, M.D.,

Defendants-Appellees.

_______________________________

PER CURIAM.

We are presented with the question whether a second

notice of intent to sue for medical malpractice tolls the

period of limitations when an earlier notice was sent with

more than 182 days remaining in the limitations period. We

hold that it does. In Omelenchuk v City of Warren,1 we held

that a notice of intent to sue for medical malpractice,

filed with fewer than 182 days remaining in the limitations

1
461 Mich 567, 574-575; 609 NW2d 177 (2000), overruled
in part on other grounds Waltz v Wyse, 469 Mich 642, 655;
677 NW2d 813 (2004).
period, initiates the 182-day tolling period of MCL

600.5856(d).2 This case takes the next step, asking whether

a plaintiff, who filed a notice of intent to sue

sufficiently early in the limitations period that no

tolling began, can send a second notice of intent to sue to

a defendant with fewer than 182 days remaining in the

limitations period and rely on that second notice to

initiate tolling under § 5856(d). Or does this violate the

prohibition in MCL 600.2912b(6) against “the tacking or

addition of successive 182-day periods” after initial

notice is given to a defendant?

We conclude that a second notice of intent to sue,

sent with fewer than 182 days remaining in the limitations

period, can initiate tolling under § 5856(d) as long as the

first notice of intent to sue did not initiate such

tolling. Section 2912b(6) prohibits a plaintiff from

giving presuit notice to a defendant multiple times in

order to initiate multiple tolling periods that repeatedly

extend the period of limitations. This did not occur here.

Instead, plaintiffs filed only one notice of intent to sue

2
We note that recent amendments of § 5856 caused §
5856(d) to be redesignated as § 5856(c). For the sake of
clarity, in this opinion, we refer to the statute in effect
at the time of the lower court proceedings.

that initiated a tolling period. Because plaintiffs filed

their claims against both defendants within the limitations

period, as tolled by § 5856(d), we reverse the judgment of

the Court of Appeals and remand this case to the trial

court for further proceedings consistent with this opinion.

I. FACTUAL BACKGROUND

Plaintiffs claim that Dr. William H. Kohen negligently

operated on Keith Mayberry’s wrist on November 22, 1999.

Among other things, plaintiffs allege that Dr. Kohen

negligently cut a nerve, resulting in Keith Mayberry’s

losing at least some of the use of his wrist. The parties

agree that plaintiffs’ malpractice claim accrued on

November 22, 1999. Accordingly, in the absence of any

tolling, the two-year period of limitations applicable to

medical malpractice actions, MCL 600.5805(6), would have

expired on November 22, 2001.

On June 21, 2000, plaintiffs mailed to Dr. Kohen a

notice of intent to sue. This notice is required of a

plaintiff who intends to file a medical malpractice

lawsuit. MCL 600.2912b. A plaintiff generally may not

file a medical malpractice complaint any earlier than 182

days after this notice has been given, although a complaint

may be filed after 154 days if the defendant does not

respond to the notice or even sooner if the defendant gives

notice that it will not settle. MCL 600.2912b(1),(8), and

(9).

Plaintiffs mailed a second notice of intent to sue on

October 12, 2001—approximately one month before the

limitations period expired. This notice again named Dr.

Kohen, and set forth additional allegations relating to his

treatment of Keith Mayberry. It also added a new

defendant, Dr. Kohen’s professional corporation, General

Orthopedics, P.C. Plaintiffs then filed their complaint

against both defendants on March 19, 2002, 158 days after

the second notice of intent to sue was mailed.3

Defendants filed a motion for summary disposition,

arguing that plaintiffs’ complaint was filed after the

limitations period expired. Plaintiffs responded that the

182-day tolling period authorized by § 5856(d) extended the

limitations period, and that their complaint, filed on

March 19, 2002, was timely.4 The trial court determined

3
Plaintiffs asserted in the trial court that they were
obligated to wait only 154 days before bringing suit, as
opposed to 182 days, because defendants failed to respond
to the notice of intent to sue. See MCL 600.2912d(8).
Defendants have not challenged plaintiffs’ assertion in
this Court, and we do not address this issue, which was not
raised on appeal.
4
If the limitations period would expire during the
notice period, the period is tolled for the number of days
(continued…)

that § 5856(d) did not apply in this case because only

plaintiffs’ first notice of intent to sue was eligible to

toll the limitations period, and it granted defendants’

motion. The Court of Appeals affirmed.5

Plaintiffs seek leave to appeal in this Court. We

ordered oral argument on the application, 471 Mich 931

(2004), and we now reverse.

II. STANDARD OF REVIEW

We review de novo a trial court’s grant of summary

disposition based on a statute of limitations. Waltz v

Wyse, 469 Mich 642, 647-648; 677 NW2d 813 (2004).

Questions of statutory interpretation are also reviewed de

novo. Burton v Reed City Hosp Corp, 471 Mich 745, 751; 691

NW2d 424 (2005).

III. DISCUSSION

As we have previously explained, if the mandatory

notice of intent to sue is given in such a manner that the

period of limitations would expire during the 182-day

notice period, § 5856(d) operates to toll the limitations

(continued…)
in the notice period. MCL 600.5856(d); Omelenchuk, supra
at 574-575. By our count, if the limitations period was
tolled for 182 days, plaintiffs had until May 23, 2002, to
file their complaint.
5
Unpublished memorandum opinion of the Court of
Appeals, issued February 17, 2004 (Docket No. 244162).

period for 182 days from the date notice is given.

Omelenchuk, supra at 575.6

But we have not addressed how a plaintiff’s decision

to send a party multiple notices of intent to sue affects

tolling under § 5856(d). When multiple notices are sent to

a party, the otherwise straightforward application of §

5856(d) may be affected by MCL 600.2912b(6), which states:

After the initial notice is given to a
health professional or health facility under this
section, the tacking or addition of successive
182-day periods is not allowed, irrespective of
how many additional notices are subsequently
filed for that claim and irrespective of the
number of health professionals or health
facilities notified.

The Court of Appeals considered the interplay between

§ 5856(d) and § 2912b(6) in Ashby v Byrnes, 251 Mich App

537, 544-545; 651 NW2d 922 (2002), a decision relied on by

the Court of Appeals in the instant case. In Ashby, as

6
MCL 600.5856 provided, in pertinent part:

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 days equal to the number of
days in the applicable notice period after the
date notice is given in compliance with section
2912b.

here, the plaintiffs mailed a second notice of intent to

sue within the last 182 days of the limitations period.

The plaintiffs argued that this second notice of intent to

sue initiated tolling under § 5856(d), and that their

complaint was timely filed. The Court of Appeals

disagreed, concluding that “only ‘the initial notice’

results in a tolling of the limitation period ‘irrespective

of how many additional notices are subsequently filed.’”

Ashby, supra at 545. This is true, the Court concluded,

even if the first notice of intent to sue did not initiate

tolling under § 5856(d) because § 2912b(6) “nowhere

suggests that this limiting language applies only when the

first notice filing tolled the period of limitation.”

Ashby, supra at 545.

We respectfully disagree. Section 2912b(6) prohibits

“the tacking or addition of successive 182-day periods

. . . .” When considering the meaning of this language,

Ashby failed to recognize that “tacking” is a legal term of

art, and that § 2912b(6) must be interpreted in a manner

that is consistent with the acquired meaning of the word

“tacking.” See MCL 8.3a (“technical words and phrases, and

such as may have acquired a peculiar and appropriate

meaning in the law, shall be construed and understood

according to such peculiar and appropriate meaning”), and

People v Law, 459 Mich 419, 425 n 8; 591 NW2d 20 (1999).

Indeed, tacking is a familiar concept in cases involving

statutes of limitations. It generally refers to adding

time periods together to affect the running of a

limitations period.7

With this definition in mind, we find that the

reference to “tacking” in § 2912b(6) is to the tacking of

limitations periods that have actually been initiated

pursuant to § 5856(d); the Legislature’s concern about

tacking successive 182-day periods is meaningful only to

the extent that such an action affects the expiration of

the limitations period. As a result, the prohibition in §

2912b(6) against tacking only precludes a plaintiff from

enjoying the benefit of multiple tolling periods. It does

not, as Ashby held, restrict the application of the tolling

provision in § 5856(d) to the initial notice of intent to

sue if the tolling provision in § 5856(d) did not even

7
See Black’s Law Dictionary (8th ed), p 1492, noting
that tacking can be a reference to the joining of
consecutive periods of possession to satisfy a statutory
limitations period for adverse possession; see also Black’s
Law Dictionary (6th ed), p 1452, noting that tacking can
also be used “to avoid the bar of a statute of
limitations.”

apply to the initial notice of intent to sue.8 Stated

otherwise, if the initial notice did not toll the statute

of limitations period, there would be no problem of

“successive 182-day periods” that § 2912b(6) prohibits.

Applying this analysis to the undisputed facts shows

that plaintiffs’ claims against both General Orthopedics

and Dr. Kohen were filed within the limitations period.

Plaintiffs gave only one notice to General Orthopedics, on

October 12, 2001, 42 days before the period of limitations

expired. Because only one notice was given, the

prohibition in § 2912b(6) against “the tacking or addition

of successive 182-day periods” does not apply. The

timeliness of this claim depends only on whether tolling

under § 5856(d) was initiated. And, as Omelenchuk makes

clear, this initial notice initiated tolling under

§ 5856(d) because it was filed within the last 182 days of

the limitations period. As a result, the period of

limitations for plaintiffs’ claim against General

Orthopedics was tolled for 182 days, or until April 12,

2002, and then ran for 42 more days, expiring on May 23,

2002. Plaintiffs’ March 19, 2002, complaint, presenting

8
Accordingly, we overrule that part of Ashby that is
inconsistent with this opinion.

their claim against General Orthopedics, was filed within

the limitations period.

Plaintiffs sent two notices of intent to sue to Dr.

Kohen, but did not sue him within two years of the alleged

malpractice; therefore, for their claim against Dr. Kohen

to be timely, plaintiffs must show that one of the two

notices tolled the limitations period. The first notice

was sent to Dr. Kohen only seven months into the two-year

limitations period. Because the presuit notice period

begun by this notice of intent to sue expired before the

period of limitations expired, the tolling provision of §

5856(d) did not come into play.9 As a result, the

timeliness of plaintiffs’ claim against Dr. Kohen depends

on whether their second notice initiated tolling under §

5856(d).

9
As we noted in Omelenchuk, supra at 574:

[I]f the interval when a potential plaintiff
is not allowed to sue ends before the limitation
period ends (i.e., if notice is given more than
one hundred eighty-two days before the end of the
limitation period), then MCL 600.5856(d); MSA
27A.5856(d) is of no consequence. In that
circumstance, the limitation period is unaffected
by the fact that, during that period, there
occurs an interval when a potential plaintiff
cannot file suit.

The Court of Appeals considered plaintiffs’ second

notice of intent to sue, and concluded that it did not

initiate tolling under § 5856(d) because § 2912b(6)

prevented plaintiffs from “obtaining the benefit of another

182-day tolling period based on the filing of multiple

notices of intent.” (Emphasis added.)

We agree with this description of the scope of

§ 2912b(6), but not with its application to these facts.

As stated earlier, plaintiffs’ first notice did not

initiate tolling under § 5856(d). It is not accurate,

therefore, to state that plaintiffs sought to obtain the

benefit of “another” tolling period by sending Dr. Kohen a

second notice of intent to sue. Rather, plaintiffs’ second

notice, sent with fewer than 182 days remaining in the

limitations period, was the first one eligible to initiate

tolling under § 5856(d). Because plaintiffs only invoked

the tolling provision of § 5856 once, and filed their

complaint before the period of limitations expired, their

complaint was timely. In the language of § 2912b(6),

plaintiffs are not “tacking . . . successive 182-day

periods” to make their complaint timely. Nothing in §

2912b(6) prevents plaintiffs from deriving the benefit of a

single tolling period of 182 days as a result of a timely

given notice of intent to sue, as long as the notice

otherwise complies with the requirements of § 2912b.

IV. CONCLUSION

Section 2912b(6) prohibits the tacking of successive

notice periods to create multiple tolling periods. In this

case, § 2912b(6) poses no bar to plaintiffs’ ability to

invoke tolling under § 5856(d) because plaintiffs did not

seek to tack or add successive 182-day periods in order to

reap the benefits of multiple tolling periods. Because

plaintiffs filed their claims against both Dr. Kohen and

General Orthopedics within the limitations period, as

tolled by § 5856(d), we reverse the judgment of the Court

of Appeals and remand this case to the trial court for

further proceedings consistent with this opinion.

Clifford W. Taylor
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
Robert P. Young, Jr.
Stephen J. Markman

Mayberry v. General Orthopedics, PC

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