Medical malpractice; Statute of limitations; MCL 600.5805(8); Wrongful death savings provision; MCL 600.5852; The notice-tolling provision; MCL 600.5856(c); Waltz v Wyse; Hardy v Maxheimer; Omelenchuk v Warren; Notice of intent (NOI)

The court concluded in this medical malpractice wrongful death case that because Waltz is binding, it lacked the authority to consider plaintiff-estate’s “argument regarding legislative intent.” As for plaintiff’s claim as to Hardy and Omelenchuk, Waltz explicitly overruled Omelenchuk, and Hardy predated Waltz, meaning the court must follow Waltz. Thus, it affirmed summary disposition under MCR 2.116(C)(7) for defendants because plaintiff’s claim was untimely. Plaintiff’s claim accrued when decedent allegedly received negligent medical care on 7/16/20. “Had plaintiff provided its [NOI] within two years of this date, the limitations period for bringing the claim under MCL 600.5805(8) would have been tolled, but plaintiff did not do so. Thus, when considered solely in the context of the original statute of limitations, plaintiff’s claim expired on” 7/16/22, and its 8/13/23 complaint was untimely. But “the savings provision provided plaintiff with additional time in which to file suit.” Plaintiff’s letters of authority were issued on 6/7/21. Thus, under MCL 600.5852, plaintiff had until 6/7/23 “to file suit, even though the original statute of limitations had already expired.” As plaintiff did not do so, the “complaint was still untimely even when the savings provision is considered.” Plaintiff argued that the NOI it provided on 2/10/23 “tolled the period in which it could file suit under the savings provision. According to plaintiff, the notice tolling provision applies to the savings provision, rendering its suit timely.” This claim failed because, in Waltz, “our Supreme Court expressly rejected the application of the tolling provision in MCL 600.5856 to the savings provision in MCL 600.5852.” Plaintiff acknowledged that but asserted “Waltz’s holding is contrary to the Legislature’s intent. In its effort to side step Waltz’s holding, plaintiff spins two earlier cases from our Supreme Court to support its claim that the tolling provision in MCL 600.5856(c) applies to the savings provision:” Hardy and Omelenchuk. It argued “that Hardy remains good law because it was not expressly overruled by Waltz, and urges this Court to ‘apply the unambiguous language’ of Omelenchuk despite it having been overruled by Waltz.” The court noted that in Waltz, the Supreme Court “reasoned that MCL 600.5856 applies to a ‘period of limitations[,]’ and MCL 600.5852 ‘clearly provides that it is an exception to the limitation period,’ not a limitation period itself.” Thus, the court held that “while MCL 600.5856 may serve to toll the two-year statute of limitations for the underlying medical malpractice claim, it does not toll the two-year exception to the statute of limitations under MCL 600.5852.”