Waltz v. Wyse - Case Law

Michigan Supreme Court

Lansing, Michigan 48909

Chief Justice Justices

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

FILED APRIL 14, 2004

COLLENE E. WALTZ, Personal Representative
Of the Estate of JERRITH WALTZ, Deceased,

Plaintiff-Appellant,

v Docket No. 122580

CAROL WYSE, D.O., and HILLS &

DALES COMMUNITY GENERAL HOSPITAL,

Defendants-Appellees.

_______________________________

BEFORE THE ENTIRE BENCH

YOUNG, J.

We granted leave in this wrongful death medical

malpractice case to consider the interplay between MCL

600.5856(d)1 and MCL 600.5852.2 Specifically, we must

determine whether § 5856(d), the medical malpractice notice

1
MCL 600.5856(d) tolls the applicable “statute of
limitations or repose” when a claimant, in compliance with
MCL 600.2912b, provides written notice of her intent to
commence a medical malpractice action.
2
MCL 600.5852 extends the otherwise-applicable
limitation periods for wrongful death actions.
tolling provision, tolls the additional period permitted

for filing wrongful death actions under the wrongful death

saving provision, § 5852. We conclude that § 5856(d) does

not apply to the wrongful death saving provision and that,

therefore, plaintiff’s action was not timely filed.

Accordingly, we affirm the judgment of the Court of

Appeals.

I. FACTS3 AND PROCEDURAL HISTORY

Plaintiff’s son, four-month-old Jerrith Waltz, died in

the emergency room of defendant Hills & Dales Community

General Hospital on April 18, 1994. In the months prior to

his death, Jerrith was treated by defendant Dr. Carol Wyse

for vomiting, diarrhea, pneumonia, and problems leading to

dehydration and an inability to eat.

Bearing in mind that plaintiff’s son died on April 18,

1994, particularly relevant to this appeal are the dates on

which plaintiff took steps to file a medical malpractice

action against the hospital and Dr. Wyse:

1. In January 1999, plaintiff, who had not
yet been appointed personal representative of
Jerrith’s estate, notified the hospital and Dr.
Wyse of her intent to file suit as required by
MCL 600.2912b.

3
This matter was resolved on summary disposition. We
accept for purposes of this appeal the accuracy of the
recitation of facts contained in plaintiff’s notice of
intent to file suit and complaint.
2
2. On May 27, 1999, plaintiff was appointed
personal representative of Jerrith’s estate.

3. On June 23, 1999, plaintiff, in her
capacity as personal representative, filed a
wrongful death medical malpractice complaint
against the hospital and Dr. Wyse.

Defendants sought summary disposition, arguing that

plaintiff had failed to file her complaint within either

the applicable two-year limitation period for malpractice

actions, MCL 600.5805(5),4 or the additional period allowed

for wrongful death actions under § 5852.5 Defendants

contended that the notice tolling provision, § 5856(d),6 did

4
MCL 600.5805(5) was renumbered as MCL 600.5805(6) by
2002 PA 715, effective March 31, 2003.
5
MCL 600.5852 provides:

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.

Thus, § 5852 provides an exception to the otherwise-
applicable limitation periods by permitting the personal
representative of a decedent’s estate to file a wrongful
death action up to two years after letters of authority are
issued, subject to a three-year ceiling.
6
MCL 600.5856 provides, in relevant part:

The statutes of limitations or repose are
tolled:
3
not toll the additional period provided for wrongful death

actions under § 5852. Defendants argued that § 5852 was

not itself a “statute of limitations or repose,” but was

instead a saving provision that merely provided a “grace

period” that extended the otherwise-applicable limitation

period. Moreover, defendants contended that plaintiff had

no authority to file her notices of intent in January 1999,

before she was appointed personal representative; thus, the

notices did not serve to toll the time limit for filing

suit in any event.7

* * *

(d) If, during the applicable notice period
under [MCL 600.2912b], 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.

Under this provision, the limitation period is tolled for
182 days if the plaintiff provides a valid notice of intent
before the limitation period expires. See MCL
600.2912b(1); Omelenchuk v Warren, 461 Mich 567; 609 NW2d
177 (2000).
7
In addition to her contention that the statute of
limitations barred plaintiff’s action, defendant Wyse
argued that (1) plaintiff failed to state a claim upon
which relief could be granted because she failed to allege
Dr. Wyse’s standard of care or facts demonstrating
proximate cause; (2) plaintiff’s affidavit of merit did not
comply with the provisions of MCL 600.2912d; and (3)
plaintiff’s notice of intent to file suit did not comply
with the provisions of § 2912b. Defendant hospital joined
in defendant Wyse’s motion only with respect to the statute
of limitations issue. Because we conclude that summary
disposition was properly granted on that basis, it is
4
The trial court granted defendants’ motion, holding

that (1) because the notice tolling provision, § 5856(d),

did not toll the wrongful death “extension period,” § 5852,

and (2) because plaintiff was not appointed personal

representative until after both the statute of limitations,

§ 5805(5), and the wrongful death “extension period” had

expired, the action was time-barred.8

The Court of Appeals affirmed, holding that the trial

court correctly concluded that the statute of limitations

barred plaintiff’s claim. Unpublished opinion per curiam,

issued October 1, 2002 (Docket No. 231324). We granted

plaintiff’s application for leave to appeal.

unnecessary to address the additional issues raised by Dr.
Wyse.
8
Although in light of our resolution of this matter it
is not necessary to address at any length the significance
of the fact that plaintiff had not yet been appointed
personal representative at the time that she filed her
notices of intent, we note that former MCL 700.332
(repealed and recodified in part at MCL 700.3701, 1998 PA
386, effective April 1, 2000) provided that “[t]he powers
of an independent personal representative relate back in
time to give acts by the person appointed which are
beneficial to the estate occurring before the appointment
the same effect as those occurring thereafter.”

The trial court additionally held that plaintiff
failed to state a claim on which relief could be granted,
MCR 2.116(C)(8), because she failed to specifically plead
the applicable standard of care. Because we agree that the
statute of limitations barred plaintiff’s action, we need
not address this alternate ground for summary disposition.

II. STANDARD OF REVIEW

We review de novo decisions regarding summary

disposition motions.9 Under MCR 2.116(C)(7), summary

disposition is proper when a claim is barred by the statute

of limitations. In determining whether summary disposition

was properly granted under MCR 2.116(C)(7), this Court

“consider[s] all documentary evidence submitted by the

parties, accepting as true the contents of the complaint

unless affidavits or other appropriate documents

specifically contradict them.”10

III. ANALYSIS

A. SECTION 5856(d) DOES NOT OPERATE TO TOLL § 5852

Plaintiff argues that her complaint was timely filed

under the wrongful death provision, § 5852, as extended by

the notice tolling provision, § 5856(d). Plaintiff

contends that in Omelenchuk v Warren, this Court applied

the notice tolling provision to § 5852 and referred to §

5852 as setting forth a “limitation period.” Thus, despite

the fact that she did not file her notices of intent until

well after the expiration of the two-year malpractice

limitation period, plaintiff claims that she had until

9
Maskery v Bd of Regents, 468 Mich 609, 613; 664 NW2d 165
(2003).
10
Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678
(2001); MCR 2.116(G)(5).
6
October 17, 1999 (182 days after the notices of intent were

served) to file suit.

The Court of Appeals rejected plaintiff’s argument,

holding that the notice tolling provision did not toll the

extended filing period for wrongful death actions:

In general, the statute of limitations for a
wrongful death action is the statute of limitations
for the underlying theory of liability, Eggleston v
Bio-Medical Applications of Detroit, Inc, 248 Mich
App 640, 646; 645 NW2d 279 (2001), which is two
years for medical malpractice, id., MCL
600.5805(5); Solowy v Oakwood Hosp Corp, 454 Mich
214, 219; 561 NW2d 843 (1997). . . . However, a
wrongful death savings provision applies if the
deceased died either before or within thirty days
after the period of limitations ended. MCL
600.5852; McNeil v Quines, 195 Mich App 199, 202;
489 NW2d 180 (1992). Under the savings provision,
the personal representative of an estate may begin
a lawsuit within two years after letters of
authority are issued, as long as the lawsuit is
brought within three years after the two-year
general period of limitations ended. MCL 600.5852;
McNeil, supra at 202. This creates a maximum time
of five years for filing suit, unless the six-month
discovery rule in MCL 600.5838(2) applies.

Here, plaintiff failed to file her complaint
within five years after her son's death. However,
she argues that the five-year period was tolled for
182 days when her attorney sent both defendants
notices of intent before filing suit, as required
when a person alleges medical malpractice, MCL
600.2912b(1). See also Rheaume v Vandenberg, 232
Mich App 417, 421; 591 NW2d 331 (1998). Generally,
the potential plaintiff must wait at least 182 days
after giving notice before filing a complaint, MCL
600.2912b(1); however, this period is reduced to
154 days if, as in this case, there was no written
response to the notice, MCL 600.2912b(8). See also
Omelenchuk, supra at 572-573. When the interval
when a potential plaintiff is not allowed to
commence an action would end after the expiration
of the limitations period, then MCL 600.5856(d)
7

applies and the period of limitations is tolled for
182 days, Omelenchuk, supra at 574-575, if the
notice meets the substantive requirements set forth
in MCL 600.2912b, Roberts v Mecosta Co General
Hosp, 466 Mich 57, 59, 67, 70-71; 642 NW2d 663
(2002).

Here, the parties do not dispute that the
wrongful death savings statute applied, and thus
plaintiff could file suit within five years of the
infant's death, which plaintiff did not do.
However, plaintiff claims that the notices of
intent given to defendants tolled the extended
five-year limit set forth in the savings statute,
MCL 600.5852. We disagree. We need look no
further than the language of the tolling statute to
resolve this issue. MCL 600.5856(d) expressly
tolls the "statute of limitations." The Supreme
Court has said recently that MCL 600.5852 is not a
statute of limitations, but rather a savings
statute. Miller [v Mercy Memorial Hosp, 466 Mich
196; 644 NW2d 730 (2002).] Therefore, by its
express language, MCL 600.5856(d) tolls the statute
of limitations, not the extended limit in MCL
600.5852. Consequently, the trial court did not
err because the statute of limitations barred
plaintiff's claim. [Slip op, pp 2-3.][11]

We agree with and adopt the reasoning of the Court of

Appeals in affirming the grant of summary disposition for

defendants. Section 5856(d), by its express terms, tolls

only the applicable “statute of limitations or repose.” As

we recently stated in Miller, supra at 202, the wrongful

11
The panel distinguished Omelenchuk:

To the extent that plaintiff relies on
Omelenchuk, supra at 577, we find that case
distinguishable. In that case, the Supreme Court
added the 182-day tolling period to the two-year
limitation period that started when the personal
representative was appointed, not the five-year
maximum at issue here. [Slip op p 3 n 2.]
8
death provision, § 5852, “is a saving statute, not a

statute of limitations.” (Emphasis supplied.)12 See also

Lindsey v Harper Hosp, in which we explained that § 5852,

as “the statute of limitations saving provision” and an

“exception to the statute of limitations,” operated “to

suspend the running of the statute until a personal

representative is appointed to represent the interests of

the estate.”13

The plain language of § 5852 wholly supports our

conclusion that it is not itself a “statute of

limitations.” Again, § 5852 provides:

12
Even our dissenting colleague agrees that it has
long been settled that § 5852 is not a statute of
limitations, but a savings provision. See post at 10.
However, the dissent does not address the plain language of
§ 5856(d), which tolls only the applicable “statute of
limitations or repose.”

The dissent further questions “how a claim may be
considered time-barred under the saving provision if the
saving provision is not a limitation period.” Post at 12.
The dissent misunderstands our analysis. Plaintiff’s claim
is not time-barred under the saving provision. Rather, it
is barred by the two-year statute of limitations for
medical malpractice actions. The saving provision simply
does not save plaintiff’s claim because she did not file
her complaint until after the grace period provided for in
the saving provision had expired.
13
Lindsey v Harper Hosp, 455 Mich 56, 60-61, 65; 564
NW2d 861 (1997).
9
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. [Emphasis supplied.]

By its own terms, § 5852 is operational only within the

context of the separate “period of limitations” that would

otherwise bar an action. Section 5852 clearly provides

that it is an exception to the limitation period, allowing

the commencement of a wrongful death action as many as

three years after the applicable statute of limitations has

expired.

In this case, the two-year limitation period provided

in § 5805(5) expired on April 18, 1996, two years after

Jerrith’s death. In order to toll the period under §

5856(d), plaintiff was required to provide notices of

intent in compliance with the provisions of MCL 600.2912b

before the expiration of the two-year limitation period.

Had she done so, the limitation period would have been

tolled for 182 days. See Omelenchuk, supra.

However, plaintiff did not provide her notices of

intent until January 1999, well after the expiration of the

two-year limitation period. As we have explained, the

three-year ceiling provided in the wrongful death saving

provision was not “tolled” following plaintiff’s provision

of the notices of intent. Thus, plaintiff’s June 23, 1999,

complaint was time-barred.14

B. OMELENCHUK V WARREN

Plaintiff argues, and the Court of Appeals apparently

agreed, that this Court in Omelenchuk applied the notice

tolling provision to § 5852. See slip op, p 3 n 2. We

take this opportunity to clarify our holding in Omelenchuk.

The issue in Omelenchuk was whether the malpractice

notice tolling provision tolled the statutory limitation

period for a full 182 days or, instead, for only 154 days,

when a medical malpractice claimant does not receive the

written response to the notice of intent contemplated under

14
We disagree with the dissent’s assertion that our
reading of the applicable statutes “effectively reduce[s]”
by 182 days the two- and three-year periods provided for in
§ 5852. See post at 21. Plaintiff had a full two years
after letters of authority were issued to commence her
claim, as long as the claim was commenced within three
years after the expiration of the two-year limitation
period for medical malpractice actions. Additionally,
plaintiff was entitled to a 182-day tolling period under §
5856(d), provided that she filed her notice of intent at
some point before the expiration of that two-year
limitation period. Potentially, then, under §§ 5805(5),
5852, and 5856(d), plaintiff had five years plus 182 days
to commence her lawsuit following the accrual of her cause
of action. However, because plaintiff waited until nearly
five years had passed after her infant’s death to file her
notice of intent, there was simply no unexpired “statute of
limitations” to toll. This analysis in no way shortens
either the two-year extension period or the three-year
ceiling provided for in § 5852.
11
MCL 600.2912b(7).15 We held that the limitation period was

tolled for the entire 182-day period, notwithstanding the

fact that the plaintiffs, who were appointed personal

representatives of the decedent’s estate the day after his

death and who filed their notice of intent before the

expiration of the two-year limitation period, could have

commenced their lawsuit after only 154 days.

It was unnecessary in Omelenchuk to determine whether

the 182-day notice tolling provision applied to the

wrongful death saving provision. The plaintiffs’ decedent

died on February 13, 1994. Leaving aside application of

the wrongful death saving provision, the two-year medical

malpractice limitation period would thus have expired on

February 13, 1996. The plaintiffs filed their notice of

intent on December 11, 1995, and they did not receive a

written response from the defendants. We held that the

plaintiffs were entitled to a tolling period of a full 182

days, rather than only 154 days, even though under MCL

600.2912b(8) they could have filed suit after 154 days.

Applying the 182-day tolling period, the two-year

15
MCL 600.2912b(7) provides that the recipient of a
notice of intent shall furnish a written response within
154 days after receipt. MCL 600.2912b(8) provides that if
no response is received by the claimant, he may commence a
medical malpractice action upon the expiration of the 154-
day period rather than waiting out the full 182-day period
otherwise contemplated by § 2912b(1).
12
limitation period would have expired on August 13, 1996,

irrespective of the wrongful death saving statute. The

plaintiffs filed their complaint on July 19, 1996, well

before expiration of the limitation period as extended by

the tolling provision.

The source of the confusion surrounding our holding in

Omelenchuk stems in part from our passing references to §

5852 as creating a “limitation period.” See, e.g.,

Omelenchuk, supra at 577:

In the present case, the plaintiffs’ decedent
died on February 13, 1994. The plaintiffs received
their letters of authority the next day, February
14, 1994. Thus, [pursuant to § 5852,] the two-year
limitation period was set to expire on February 14,
1996. [Emphasis added.]

To the extent that our imprecise choice of words in

Omelenchuk implied that § 5852 created a separate

“limitation period,” we again clarify that § 5852 is not a

statute of limitations, but a saving statute.

We additionally note that we mistakenly, and

unnecessarily, based our time calculations on a starting

date of February 14, 1994 (the date the personal

representatives were appointed), when we should have based

those calculations on the accrual date of the cause of

action, February 13, 1994 (the date of the decedent’s

death). See Omelenchuk, supra at 577:

In the present case, the plaintiffs' decedent
died on February 13, 1994. The plaintiffs received
their letters of authority the next day, February
14, 1994. Thus, the two-year limitation period was
set to expire on February 14, 1996.
On December 11, 1995 (sixty-five days before
the expiration of the limitation period) the
plaintiffs provided the required notice to the
defendants. As a result of the notice, the
limitation period was tolled one hundred eighty-two
days. Rather than expiring on February 14, 1996,
the limitation period thus was tolled from December
11, 1995, until June 10, 1996; it then resumed for
another sixty-five days until it expired on August
14, 1996.
* * *
The plaintiffs . . . filed their complaint on
July 19, 1996, nearly a month before the end of the
recalculated limitation period.

We should have stated that rather than expiring on

February 13, 1996, the limitation period was tolled from

December 11, 1995, until June 10, 1996, and then resumed

for another sixty-five days until it expired on August 13,

1996. In any event, it was unnecessary to apply the

wrongful death saving provision because the action was

commenced within the two-year limitation period. To the

limited extent that the above-quoted portion of Omelenchuk

might be viewed as sanctioning application of the notice

tolling provision to the wrongful death saving provision,

it is hereby overruled.

IV. CONCLUSION

Section 5852 is a saving provision designed “to

preserve actions that survive death in order that the
14
representative of the estate may have a reasonable time to

pursue such actions.” Lindsey, supra at 66. It is not a

“statute of limitations” or a “statute of repose.” Thus,

the notice tolling provision, § 5856(d)——which explicitly

applies only to “the statute of limitations or repose”——

does not operate to toll the additional period permitted

under § 5852 for filing wrongful death actions. Because

plaintiff did not file her complaint until well after the

expiration of both the two-year limitation period for

malpractice actions and the grace period provided for in §

5852, the lower courts properly determined that the action

was time-barred. Accordingly, we affirm the judgment of

the Court of Appeals.

Robert P. Young, Jr.
Maura D. Corrigan
Elizabeth A. Weaver
Clifford W. Taylor
Stephen J. Markman

S T A T E O F M I C H I G A N

SUPREME COURT

COLLENE E. WALTZ, Personal Representative
of the Estate of JERRITH WALTZ, Deceased,

Plaintiff-Appellant,

v No. 122580

CAROL WYSE, D.O., AND HILLS &
DALES COMMUNITY GENERAL HOSPITAL,

Defendants-Appellees.

_______________________________

CAVANAGH, J. (dissenting).

This case calls on us to determine whether MCL

600.5856(d) tolls the period provided for filing wrongful

death claims under MCL 600.5852 where the wrongful death

claim is predicated on medical malpractice. Because I find

that § 5856(d) applies to § 5852, I respectfully dissent

from the majority’s decision. The majority’s holding has

the practical effect of shortening the period the

Legislature expressly permits for bringing wrongful death

actions. Consistently with the will of the Legislature and

this Court’s unanimous opinion per curiam in Omelenchuk v

City of Warren, 461 Mich 567; 609 NW2d 177 (2000), I would

reverse the decision of the Court of Appeals.
I. INTERPLAY OF RELEVANT STATUTORY PROVISIONS

Today’s decision evidences the majority’s

misunderstanding of the nature of plaintiff’s claim, as

well as the interplay between the statutory limitation

provisions pertaining to wrongful death actions and medical

malpractice claims. Presumably, it is this basic

misunderstanding that drives the majority’s result. The

majority states, “In this case, the two-year limitation

period provided in § 5805(5) expired on April 18, 1996, two

years after Jerrith’s death. In order to toll the period

under § 5856(d), plaintiff was required to provide notices

of intent in compliance with the provisions of MCL

600.2912b before the expiration of the two-year limitation

period.” Ante at 11. Because the majority does not fully

comprehend the nature of this case, an examination of

plaintiff’s claim and the applicable statutory provisions

is necessary.

“Early in its history, Michigan adopted a rather

liberal ‘survival act’ to preserve causes of action which,

under common law, were terminated by the death either of

the person injured or the tortfeasor.” Hawkins v Regional

Med Labs, PC, 415 Mich 420, 428-429; 329 NW2d 729 (1982).

MCL 600.2921 pertains to survival actions and provides:

All actions and claims survive death.
Actions on claims for injuries which result in
death shall not be prosecuted after the death of
the injured person except pursuant to the next
section. If an action is pending at the time of
death the claims may be amended to bring it under
the next section. A failure to so amend will
amount to a waiver of the claim for additional
damages resulting from death.

Thus, survival type wrongful death actions are filtered

through MCL 600.2922, which provides in pertinent part:

(1) Whenever the death of a person or
injuries resulting in death shall be caused by
wrongful act, neglect, or fault of another, and
the act, neglect, or fault is such as would, if
death had not ensued, have entitled the party
injured to maintain an action and recover
damages, the person who or the corporation that
would have been liable, if death had not ensued,
shall be liable to an action for damages,
notwithstanding the death of the person injured,
and although the death was caused under
circumstances that constitute a felony.

The statute of limitations for a wrongful death action

is normally governed by the statute of limitations for the

underlying claim. Larson v Johns-Manville Sales Corp, 427

Mich 301, 314; 399 NW2d 1 (1986). In general, the

limitation period for a medical malpractice action is two

years. MCL 600.5805(5); Miller v Mercy Memorial Hosp, 466

Mich 196, 199; 644 NW2d 730 (2002). The Legislature,

however, has set forth specific statutory limitation

provisions relating to medical malpractice and wrongful

death actions.

For example, MCL 600.5838a provides in pertinent part:

(1) For purposes of this act, a claim based
on the medical malpractice of a person or entity
who is or who holds himself or herself out to be
a licensed health care professional, licensed
health facility or agency, or an employee or
agent of a licensed health facility or agency who
is engaging in or otherwise assisting in medical
care and treatment, whether or not the licensed
health care professional, licensed health
facility or agency, or their employee or agent is
engaged in the practice of the health profession
in a sole proprietorship, partnership,
professional corporation, or other business
entity, accrues at the time of the act or
omission that is the basis for the claim of
medical malpractice, regardless of the time the
plaintiff discovers or otherwise has knowledge of
the claim.

* * *
(2) Except as otherwise provided in this
subsection, an action involving a claim based on
medical malpractice may be commenced at any time
within the applicable period prescribed in
section 5805 or sections 5851 to 5856, or within
6 months after the plaintiff discovers or should
have discovered the existence of the claim,
whichever is later. [Emphasis added.]

Further, and at issue here, is the wrongful death saving

provision. MCL 600.5852 provides in pertinent part:

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.

Under § 5852, the Legislature has expressly granted a

personal representative “an additional two years from the

date of issuance of letters [of authority] in which to

bring suit provided that, in any event, the [personal

representative] brings suit not more than three years after

the limitations period has run.” Hawkins, supra at 438.

Thus, the Legislature has extended the time in which to

bring wrongful death claims, including those claims based

upon medical malpractice.

It is against this backdrop that the Legislature’s

tort reform measures must be considered. The Legislature

requires a plaintiff alleging medical malpractice,

including a personal representative bringing a wrongful

death action, to provide notice of intent to commence an

action to the defendant before filing a complaint. MCL

600.2912b; Roberts v Mecosta Co Gen Hosp, 466 Mich 57, 65;

642 NW2d 663 (2002). After giving notice of intent, a

plaintiff must wait at least one hundred eighty-two days

before filing the complaint; however, this period may be

reduced to one hundred fifty-four days if the plaintiff

does not receive a written response from the defendant.

MCL 600.2912b(1) and (8). During this “waiting period

required under MCL 600.2912b,” however, the Legislature has

provided that MCL 600.5856(d) will toll the period of

limitations. Roberts, supra at 60 (emphasis added). MCL

600.5856(d) provides:

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.

The Legislature has seen fit to provide a

comprehensive time frame for actions alleging medical

malpractice. The statutes pertaining to the timing of

medical malpractice and wrongful death are intertwined.

II. OMELENCHUK V CITY OF WARREN

In Omelenchuk, nearly all the aforementioned statutory

provisions were implicated. Thus, the majority’s newfound

wisdom and its avoiding that decision necessitate a

thorough examination.

In examining the language of the notice tolling

provision, § 5856(d), this Court began its analysis with

the following observation: “Certainly, that provision could

have been written more clearly.” Omelenchuk, supra at 574.

In construing § 5856(d), this Court noted:

If, however, the interval when a potential
plaintiff is not allowed to file suit would end
after the expiration of the limitation period
(i.e., if notice is given one hundred eighty-two
days or less before the end of the limitation
period), then MCL 600.5856(d); MSA 27A.5856(d)

applies. In that instance, the limitation period
is tolled. [Id. (emphasis added).]

In determining how long the limitation period is tolled

under § 2912b, “we conclude[d] and [held] that the

preferred construction is that the limitation period is

tolled for the full one hundred eighty-two days.” Id. at

575 (emphasis added).

In applying the notice tolling provision, § 5856(d),

to the wrongful death saving provision, § 5852, we noted:

In the present case, the plaintiffs'
decedent died on February 13, 1994. The
plaintiffs received their letters of authority
the next day, February 14, 1994. Thus, the two-
year limitation period was set to expire on
February 14, 1996.
On December 11, 1995 (sixty-five days before
the expiration of the limitation period) the
plaintiffs provided the required notice to the
defendants. As a result of the notice, the
limitation period was tolled one hundred eighty-
two days. Rather than expiring on February 14,
1996, the limitation period thus was tolled from
December 11, 1995, until June 10, 1996; it then
resumed for another sixty-five days until it
expired on August 14, 1996.
The plaintiffs were unable to file suit for
one hundred fifty-four days after they provided
notice on December 11, 1995. . . . This no-suit
interval ended on May 13, 1996, after which they
were able to file suit. The plaintiffs then filed
their complaint on July 19, 1996, nearly a month
before the end of the recalculated limitation
period. [Id. at 577 (emphasis added).]

Thus, this Court, in a unanimous decision, unquestionably

applied § 5856(d) to the limitation period provided under

§ 5852.

III. THE MAJORITY’S ATTEMPTS TO AVOID OMELENCHUK

The majority, in vain attempts to avoid the

ramifications of this Court’s decision in Omelenchuk,

asserts that (1) “we mistakenly, and unnecessarily, based

our time calculations on a starting date of February 14,

1994”;1 and (2) confusion has stemmed from “our imprecise

choice of words in Omelenchuk [that] implied that § 5852

created a separate ‘limitation period.’”2 Neither assertion

has merit and, thus, the majority’s decision to

conditionally overrule Omelenchuk is unwarranted.

A. THE TIME CALCULATIONS IN OMELENCHUK WERE ACCURATE

The Omelenchuk plaintiffs, as personal representatives

of the decedent’s estate, instituted a wrongful death

action. By operation of §§ 2921, 2922, and 5852, the

decedent’s claim survived. Because the decedent died

within the two-year period of limitation under § 5805, the

saving provision took effect and the plaintiffs were

operating under the period set forth under § 5852, the

saving provision. Thus, we did not mistakenly or

unnecessarily base our calculations on the date of

1
Ante at 13 (emphasis in original).

2
Ante at 14-15.

appointment. Under § 5852, we were required to measure the

applicable two-year period from the date the personal

representatives were appointed. We were not permitted to

consider the date of death under the circumstances

presented in Omelenchuk.

The majority is simply wrong in its assertion that

Omelenchuk should have based its calculations on the date

the cause of action accrued. The date of death in that

case, February 13, 1994, would only have been relevant (1)

if the decedent somehow survived and brought a medical

malpractice claim himself or (2) in determining the three-

year ceiling provided under § 5852. As such, it was

absolutely necessary for this Court to examine the wrongful

death saving provision because that was the nature of the

plaintiffs’ claim. Thus, the majority’s attempt to

“clarify” Omelenchuk is disingenuous.

B. SECTION 5852 DOES SET FORTH A LIMITATION PERIOD

In an attempt to further distance itself from the

result reached in Omelenchuk, the majority now asserts that

we misspoke when we referred to § 5852 as a limitation

period. Instead, the majority simply contends that § 5852

is not a statute of limitation, but a saving provision, in

order to justify its current holding. This point of law,

however, was settled long before our decision in

Omelenchuk. Hardy v Maxheimer, 429 Mich 422, 425; 416 NW2d

299 (1987); Lindsey v Harper Hosp, 455 Mich 56, 60-61; 564

NW2d 861 (1997). Further, while not formally labeled a

statute of limitation, it is clear from our prior decisions

that § 5852 is a limitation period because it sets forth

its own period of limitations.

In Lindsey, for example, the defendant moved for

summary disposition under MCR 2.116(C)(7), asserting that

the plaintiff’s claim was barred under § 5852 because the

plaintiff filed suit more than two years after being

appointed temporary personal representative. Lindsey,

supra at 60. The plaintiff argued that the claim was

timely because the claim was filed within two years of the

issuance of formal letters of authority. This Court held

that the saving provision begins to run when a plaintiff is

appointed temporary personal representative. Because the

plaintiff did not bring suit within two years after being

appointed temporary personal representative as required

under § 5852, the Lindsey Court held that the plaintiff’s

claim was untimely and, thus, barred. As such, we did not

misspeak when we referred to § 5852 as a limitation period

in Omelenchuk.

Miller also supports the conclusion reached in

Omelenchuk that the saving provision is a limitation

period. In concluding that the six-month discovery rule, §

5838a(2), was a “period of limitation” within the meaning

of the saving provision, this Court noted:

Contrary to defendants' assertions, the six-
month discovery rule is a distinct period of
limitation. It is a statutory provision that
requires a person who has a cause of action to
bring suit within a specified time. As an
alternative to the other periods of limitation,
it is itself a period of limitation. [Miller,
supra at 202.]

This inevitably leads to the conclusion that because § 5852

requires a plaintiff to bring suit within a specified time,

§ 5852 must be considered a limitation period.

Finally, the majority’s decision itself necessarily

supports the notion that § 5852 is a limitation period.

The majority concludes that because the wrongful death

saving provision was not tolled during the notice period,

plaintiff’s complaint is time-barred. I question how a

claim may be considered time-barred under the saving

provision if the saving provision is not a limitation

period.3 While § 5852 is not formally labeled as a statute

3
Contrary to the majority’s assertion, I do not
misunderstand its analysis. Rather, I believe that its
analysis is fundamentally flawed. Plaintiff’s claim is not
governed by the two-year statute of limitations under
§ 5805 because her cause of action, by operation of law,
proceeds under the limitation period set forth under
§ 5852, the savings provision. Therefore, if plaintiff’s

of limitation, it is clear that if a plaintiff does not

adhere to the period of limitations set forth under the

saving provision, he is subject to having his claim

dismissed as untimely. Thus, this unanimous Court did not

misspeak in Omelenchuk when it referred to § 5852 as

setting forth a limitation period.

In sum, I find the majority’s attempts to evade

Omelenchuk unacceptable. I believe Omelenchuk reached the

correct result and effectively harmonized the applicable

statutory provisions pertaining to the limitation of

actions. In fairness, however, I suppose the majority’s

avoidance of Omelenchuk is necessary to support its overly

narrow construction of § 5856(d).

IV. THE MAJORITY’S NARROW CONSTRUCTION IS CONTRARY TO THE LEGISLATURE’S

INTENT

The majority considers § 5856(d) in isolation and

strictly construes five words contained in that particular

provision without regard to the other relevant and

applicable statutory provisions implicated in this action.

In doing so, the majority undermines the Legislature’s

intent and violates several well-established principles of

statutory construction. Applying accepted principles of

claim is to be considered time-barred at all, it must
necessarily be barred under § 5852, not § 5805.

construction, I would hold that § 5856(d) is applicable to

§ 5852.

“The primary goal of statutory interpretation is to

give effect to the intent of the Legislature.” In re MCI,

460 Mich 396, 411; 596 NW2d 164 (1999). To reach this

goal, this Court has recognized the rule that “statutes

relating to the same subject matter should be read and

construed together to determine the Legislature’s intent.”

Id. at 416. Further, it is “a maxim of statutory

construction that every word of a statute should be read in

such a way as to be given meaning . . . .” Id. at 414

(emphasis added); see also Danse Corp v Madison Hts, 466

Mich 175, 182; 644 NW2d 721 (2002)(“The court must presume

that every word has some meaning and, if possible, effect

should be given to each provision.”).

As detailed above, the timing provisions relating to

wrongful death actions, medical malpractice claims, and

notice tolling are interconnected and are part of a common

legislative framework. Because the various statutory

provisions implicated in this case relate to the same

subject matter, the terms of the provisions should be read

in pari materia. Jennings v Southwood, 446 Mich 125, 136-

137; 521 NW2d 230 (1994). “The object of the rule in pari

materia is to carry into effect the purpose of the

legislature as found in harmonious statutes on a subject.”

Id. at 137, quoting Wayne Co v Auditor General, 250 Mich

227, 233; 229 NW 911 (1930). In Detroit v Mich Bell Tel

Co, 374 Mich 543, 558; 132 NW2d 660 (1965), this Court

stated:

Statutes in pari materia are those which
relate to the same person or thing, or the same
class of persons or things, or which have a
common purpose. It is the rule that in
construction of a particular statute, or in the
interpretation of its provisions, all statutes
relating to the same subject, or having the same
general purpose, should be read in connection
with it, as together constituting one law,
although enacted at different times . . . .[4]

The purpose of the wrongful death statutory framework

is to preserve causes of action, including those based on

medical malpractice, which were previously terminated by

the death of either the injured party or the wrongdoer

under the common law. Hawkins, supra at 428-429.

Similarly, the purpose of § 5852, the saving provision, is

to “preserve actions that survive death in order that the

4
See also Dearborn Twp Clerk v Jones, 335 Mich 658,
662; 57 NW2d 40 (1953)(“’It is elementary that statutes in
pari materia are to be taken together in ascertaining the
intention of the legislature, and that courts will regard
all statutes upon the same general subject matter as part
of 1 system.”); Remus v Grand Rapids, 274 Mich 577, 581;
265 NW 755 (1936)(“In the construction of a particular
statute, or in the interpretation of any of its provisions,
all acts relating to the same subject, or having the same
general purpose, should be read in connection with it, as
together constituting one law.’” [citation omitted].).

representative of the estate may have reasonable time to

pursue such actions.” Lindsey, supra at 66. Under § 5852,

the Legislature has deemed two years from the issuance of

letters of authority to be a reasonable time, but, in any

event, suit must be filed no more than three years from the

date the statute of limitations on the underlying claim has

expired. The saving provision remained unchanged in the

face of tort reform; evidencing that the Legislature still

considered two years to be a reasonable time in which to

pursue wrongful death claims predicated on medical

malpractice, subject to the three-year ceiling.

Consistently with the rule of in pari materia, the

aforementioned provisions must be read together with the

Legislature’s subsequent tort reform measures.

Under 1993 PA 78, the Legislature amended the Revised

Judicature Act and drastically changed the procedures

necessary to bring a medical malpractice claim in Michigan.

Notably, § 2912b introduced the notice of intent

requirement and its corresponding no-suit interval.

However, the Legislature also amended § 5856 to include

subsection d, which provides that the “statute of

limitations or repose” is tolled during this notice period.

“The purpose of the notice requirement is to promote

settlement without the need for formal litigation and

reduce the cost of medical malpractice litigation while

still providing compensation for meritorious medical

malpractice claims that might otherwise be precluded from

recovery because of litigation costs.” Neal v Oakwood Hosp

Corp, 226 Mich App 701, 705; 575 NW2d 68 (1997), citing

Senate Legislative Analysis, SB 270, August 11, 1993, and

House Legislative Analysis, HB 4403-4406, March 22, 1993.

Thus, the no-suit interval temporarily incapacitates a

medical malpractice plaintiff, including a personal

representative bringing a wrongful death claim, so that the

defendant may investigate the claim and meaningful

settlement negotiations may then occur. In exchange for

not being able to file suit, the Legislature has said that

the limitation period is tolled during the notice period so

that a plaintiff’s position is not prejudiced. When §§

2912b, 2921, 2922, 5805, 5852, and 5856(d) are read

together, it becomes clear that the Legislature intended

the notice tolling provision to apply to the saving

provision.

The approach I advance today is consistent with the

approach this Court unanimously used in Miller. As

mentioned above, the issue in Miller was whether the six-

month discovery provision for medical malpractice claims, §

5838a, was incorporated in the wrongful death saving

provision. This Court disagreed with the Court of Appeals

conclusion that the only “period of limitation” applicable

to a medical malpractice action under § 5852 was the two-

year period under § 5805(5). In reaching our ultimate

conclusion that § 5838a(2) applied to § 5852, this Court

considered that the purpose of § 5852 was to preserve

actions and to provide a reasonable time in which to pursue

wrongful death claims. This Court further stated:

That purpose is fulfilled by our decision
today. Had plaintiff's decedent not died, he
would have been able to bring suit for six
months, or until July 1996. Suit would have been
timely, not under § 5805(5), but under §
5838a(2), not as an exception to the two-year
statute, but as an additional period of
limitation. [Miller, supra at 203.]

Thus, the saving provision must necessarily be considered

both a limitation period and, in light of the purposes of

that provision and the tort reform measures, a period

subject to the notice tolling provision.

Further, while currently out of favor with some

members of this Court, the approach I advance today is also

consistent with another accepted maxim of statutory

construction. It has long been recognized that “the Court

may depart from strict construction principles when a

literal reading of the statute will produce absurd or

illogical results, and this Court should attempt to give

effect to all relevant statutory provisions.” DiBenedetto

v West Shore Hosp, 461 Mich 394, 408; 605 NW2d 300 (2000)

(CAVANAGH, J., dissenting), citing Gross v Gen Motors Corp,

448 Mich 147; 528 NW2d 707 (1995), and In re Landaal, 273

Mich 248, 252; 262 NW 897 (1935).

Personal representatives who bring a wrongful death

claim on the basis of medical malpractice must comply with

the notice of intent provision and likewise may not file

suit during the no-suit interval. However, by operation of

law, the limitation period for these causes of action is

governed by § 5852, not § 5805(5). Under the majority’s

holding, wrongful death plaintiffs must still comply with

the notice requirement of § 2912b, but do not receive the

benefit of tolling under § 5856(d) because, according to

the majority, § 5856(d) only applies to § 5805. This

holding, however, ignores the fact that wrongful death

plaintiffs must proceed under the limitation period set

forth by § 5852, not § 5805, and must follow the mandates

of § 2912b. Further, the majority’s decision effectively

shortens the period the Legislature has plainly allowed

under § 5852 by one hundred eighty-two days. The facts of

this case illustrate the absurdity of the majority’s

result.

Between February and April 1994, defendant Wyse

evaluated plaintiff’s four-month-old son. On April 13,

1994, plaintiff took her son to defendant Hills & Dales

Community General Hospital; however, her son was not

admitted. On April 17, 1994, plaintiff brought her son

back to defendant hospital and the baby died at the

hospital the next day, April 18, 1994. Thus, under § 5805,

the medical malpractice statute of limitations was set to

expire on April 18, 1996. Further, the three-year ceiling

provided under § 5852 was set to expire on April 18, 1999.

Plaintiff, as personal representative of her son’s

estate, had to file suit within two years of her

appointment, but was required to file no later than April

18, 1999, under the plain language of the saving provision.

Because plaintiff was alleging medical malpractice, she

also had to provide defendants with notices of intent

before filing her action. Plaintiff served the required

notices of intent in January 1999, well before the

expiration of the three-year ceiling under § 5852. Yet,

under § 2912b, plaintiff could not file suit for one

hundred eighty-two days, or for one hundred fifty-four days

if defendants failed to give a written response. Thus,

plaintiff could not have filed suit before the three-year

ceiling expired even if she so desired under the current

tort reform system because plaintiff was in the “no-suit

interval,” i.e., plaintiff was required to wait under §

2912b.

During this no-suit interval, the Legislature has said

that, under § 5856(d), time stands still so that a

plaintiff’s position is not prejudiced and the purposes of

the tort reform measures can come to fruition. If time

were not tolled for wrongful death plaintiffs in the same

manner as other plaintiffs, the plain language of § 5852 is

shortened by one hundred eighty-two days. A wrongful death

plaintiff would have to give notices of intent at least one

hundred eighty-two days before the expiration § 5852.

Thus, the two years expressly provided under the saving

provision are effectively reduced to one-and-a-half years,

and the three-year ceiling is reduced because plaintiffs

are required to provide notice of intent one hundred

eighty-two days before the expiration of the three-year

ceiling. In this case, for example, plaintiff would then

have been required to give her notices of intent by October

16, 1998. Such a result is in direct conflict with the

plain language of § 5852 and is contrary to the purpose of

the tort reform measures.

The following highlights the differences between the

majority’s decision and the proper reading of the

applicable provisions:

REQUIRED NO-SUIT INTERVAL
April 18, 1994 January 16 & 19, 1999 June 22, 1999
Plaintiff’s baby Plaintiff served notices No-suit interval
dies of intent as required expires under
under § 2912b § 2912b(7) & (8)

April 18, 1996 April 18, 1999 June 23,
Medical malpractice Date majority 1999
statute of limitation says plaintiff Plaintiff
expires under § 5805 must have filed files suit

§ 5852 TOLLED BY § 5856(d)

The Legislature clearly did not intend for wrongful

death plaintiffs to be prejudiced during the no-suit

interval. Yet, this is the result reached by today’s

majority. By strictly construing five words in isolation

and closing its eyes to the other applicable statutory

limitation provisions and legislative intent, the majority

effectively and impermissibly rewrites part of the Revised

Judicature Act. The majority, not the Legislature, has

elected to treat the notice period for wrongful death

plaintiffs alleging medical malpractice differently from

the notice period medical malpractice plaintiffs who happen

to survive their injuries.

V. CONCLUSION

Rather than rewriting the Revised Judicature Act, I

would read the various statutory provisions as one law.

Because the notice tolling provision and the wrongful death

savings provision are part of the same law, I would hold

that § 5856(d) applies to claims governed by the limitation

period under § 5852. This approach is consistent with the

Legislature’s intent, accepted principles of statutory

construction, and this Court’s unanimous opinion per curiam

in Omelenchuk.

I would, therefore, reverse the decision of the Court

of Appeals and remand for trial.5

Michael F. Cavanagh
Marilyn Kelly

5
As the majority accurately notes, former MCL 700.332
dictates that plaintiff’s appointment as personal
representative relates back to the time she gave her
notices of intent. Thus, the trial court erred in granting
defendants’ motion for summary disposition on this ground.
Further, defendant Wyse’s arguments that plaintiff failed
to state a claim upon which relief could be granted and
that the notices of intent were deficient under § 2912b are
without merit.