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.
2
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
3
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…)
4
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).
5
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.
6
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
7
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.”
8
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.
9
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.
10
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
11
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
12