MSC Administrative Orders Do Not Toll Med-Mal Statute Of Limitations

The trial court improperly denied the defendants’ motion to dismiss the plaintiff’s medical malpractice claim based on the applicable statute of limitations, the Michigan Court of Appeals has ruled in a published and binding opinion.

The defendants in Armijo v Bronson Methodist Hospital, et al. (Docket No. 358728) appealed the Kalamazoo County Circuit Court’s denial of their motion to dismiss the plaintiff’s med-mal suit pursuant to MCR 2.116(C)(7).

“Because we conclude Michigan Supreme Court Administrative Order Nos. 2020-3, 2020-3 (amended) and 2020-18 do not toll any period applicable to this case, we reverse and remand to the trial court to grant summary disposition to defendants …,” the Court of Appeals held.

Judge James Robert Redford wrote the opinion, joined by Judge Michael J. Riordan and Judge Jane E. Markey.

Background

The underlying facts of the case are undisputed. The plaintiff presented to the emergency room at Ascension Allegan Hospital on February 23, 2018, with congestion, cough, headache, sore throat and fever. The hospital examined the plaintiff, performed blood tests and administered a pain killer and corticosteroid, then discharged her with instructions to follow up with her primary care physician.

On February 25, 2018, the plaintiff’s husband found her unresponsive and took her back to the ER. The plaintiff was transferred to Bronson Methodist Hospital, where she was diagnosed

with sepsis with shock that had developed into multisystem organ failure. Bronson Methodist Hospital transferred the plaintiff to the University of Michigan, where she underwent various procedures.

As required by MCL 600.2912b, the plaintiff served the defendants her notice of intent (NOI) to file her medical malpractice lawsuit on February 19, 2020. The parties agreed the plaintiff’s medical malpractice claim accrued on March 6, 2018, and she gave notice 16 days before the expiration of the two-year statutory limitations period for malpractice actions under MCL 600.5805(8). By giving notice, the limitations period was tolled for 182 days as provided by MCL 600.5856(c). The parties also agreed that, according to law, the plaintiff had to file her complaint by September 4, 2020.

After the plaintiff filed her NOI, the Michigan Governor entered Executive Order 2020-4, which declared a state of emergency related to the COVID-19 pandemic. On March 23, 2020, the Michigan Supreme Court entered Administrative Order No. 2020-3, 505 Mich lxxxvi (2020), which provided:

“In light of the continuing COVID-19 pandemic and to ensure continued access to courts, the Court orders that:

For all deadlines applicable to the commencement of all civil and probate case-types, including but not limited to the deadline for the initial filing of a pleading under MCR 2.110 or a motion raising a defense or an objection to an initial pleading under MCR 2.116, and any statutory prerequisites to the filing of such a pleading or motion, any day that falls during the state of emergency declared by the Governor related to COVID-19 is not included for purposes of MCR 1.108(1).

This order is intended to extend all deadlines pertaining to case initiation and the filing of initial responsive pleadings in civil and probate matters during the state of emergency declared by the Governor related to COVID-19. Nothing in this order precludes a court from ordering an expedited response to a complaint or motion in order to hear and resolve an emergency matter requiring immediate attention. We continue to encourage courts to conduct hearings remotely using two-way interactive video technology or other remote participation tools whenever possible.

This order in no way prohibits or restricts a litigant from commencing a proceeding whenever the litigant chooses. Courts must have a system in place to allow filings without face-to-face contact to ensure that routine matters, such as filing of estates in probate court and appointment of a personal representative in a decedent’s estate, may occur without unnecessary delay and be disposed via electronic or other means.”

Then on May 1, 2020, the Michigan Supreme Court entered Amended Administrative Order No. 2020-3, 505 Mich lxxiv (2020), which provided:

“On order of the Court, the following amendment of Administrative Order No. 2020-3 is adopted, effective immediately.

[Additions to the text are indicated in underlining]

In light of the continuing COVID-19 pandemic and to ensure continued access to courts, the Court orders that:

For all deadlines applicable to the commencement of all civil and probate case-types, including but not limited to the deadline for the initial filing of a pleading under MCR 2.110 or a motion raising a defense or an objection to an initial pleading under MCR 2.116, and any statutory prerequisites to the filing of such a pleading or motion, any day that falls during the state of emergency declared by the Governor related to COVID-19 is not included for purposes of MCR 1.108(1).

This order is intended to extend all deadlines pertaining to case initiation and the filing of initial responsive pleadings in civil and probate matters during the state of emergency declared by the Governor related to COVID-19. Nothing in this order precludes a court from ordering an expedited response to a complaint or motion in order to hear and resolve an emergency matter requiring immediate attention. We continue to encourage courts to conduct hearings remotely using two-way interactive video technology or other remote participation tools whenever possible.

This order in no way prohibits or restricts a litigant from commencing a proceeding whenever the litigant chooses, nor does it suspend or toll any time period that must elapse before the commencement of an action or proceeding. Courts must have a system in place to allow filings without face-to-face contact to ensure that routine matters, such as filing of estates in probate court and appointment of a personal representative in a decedent’s estate, may occur without unnecessary delay and be disposed via electronic or other means.”

On June 12, 2020, the Michigan Supreme Court entered Administrative Order No. 2020-18, 505 Mich lxxxviii (2020), rescinding its previous administrative order as follows:

“In Administrative Order No. 2020-3, the Supreme Court issued an order excluding any days that fall during the State of Emergency declared by the Governor related to COVID-19 for purposes of determining the deadline applicable to the commencement of all civil probable case types under MCR 1.108(1). Effective Saturday, June 20, 2020, that administrative order is rescinded, and the computation of time for those filings shall resume. For time periods that started before Administrative Order No. 2020-3 took effect, the filers shall have the same number of days to submit their filings on June 20, 2020, as they had when the exclusion went into effect on March 23, 2020. For filings with time periods that did not begin to run because of the exclusion period, the filers shall have the full periods for filing beginning on June 20, 2020.”

The plaintiff filed her complaint on December 14, 2020. In July 2021, the defendants moved for summary disposition pursuant to MCR 2.116(C)(7), claiming the deadline for the plaintiff to file her complaint lapsed September 4, 2020, and, therefore, the complaint was time-barred. The defendants also argued:

1. the judiciary did not have the authority to issue the administrative orders regarding COVID that tolled the statutory limitations periods.

2. to the extent the judiciary may have such authority, the authority only extended to the modification of deadlines that occurred during the COVID state of emergency.

3. if the administrative orders were valid, they only applied to deadlines that occurred during the state of emergency and not to the deadlines in the instant case.

4. the administrative orders did not apply to this case because the plaintiff’s NOI commenced a tolling period before the state of emergency, so it did not make sense to toll the case twice at once.

The plaintiff maintained that the Michigan Supreme Court had the authority to issue the administrative orders and the defendants inaccurately interpreted the orders. The defendants, however, asserted the plaintiff’s interpretation of the amended AO 2020-3 “illogically contradicted the plain language of the amendment.”

After a hearing, the Kalamazoo trial court agreed with the plaintiff and denied the defendants’ motions for summary disposition.

The defendants appealed.

Time-Barred Claims

At the outset of its opinion, the Court of Appeals explained that:

1. the limitations period for a malpractice action is two years.

2. the action “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.”

3. an action that is not commenced within the statutorily prescribed time limits is time-barred.

The Court of Appeal also pointed out that MCL 600.2912b(1) provides: “Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.” Meanwhile, the appeals court noted the MCL 600.5856(c) says: “The statutes of limitations or repose are tolled … [a]t the time notice is given in compliance with the applicable notice period under [MCL 600.]2912b, if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given.”

The Michigan Supreme Court issued its administrative orders because of the COVID-19 pandemic, the Court of Appeals emphasized. “[W]e do not address for purposes of this appeal whether our Supreme Court had authority to enter the administrative orders at issue in this case.”

The Court of Appeals then examined Administrative Order No. 2020-3, 505 Mich lxxxvi (2020), observing the Michigan Supreme Court stated that it “’intended to extend all deadlines pertaining to case initiation … in civil … matters during the state of emergency declared by the Governor related to COVID-19’ but did not prohibit or restrict a litigant from commencing an action. Then, in Amended Administrative Order No. 2020- 3, 505 Mich lxxiv (2020), our Supreme Court in relevant part stated: ‘This order in no way prohibits or restricts a litigant from commencing a proceeding whenever the litigant chooses, nor does it suspend or toll any time period that must elapse before the commencement of an action or proceeding. [Emphasis added.]’”

The initial administrative order “expressed our Supreme Court’s intent to extend statutory deadlines for filing civil matters during the state of emergency,” the Court of Appeals said. “In its amended order, it again stated it ‘… intended to extend all deadlines pertaining to case initiation … during the state of emergency …’ It also added language, however, and specifically clarified that its order did not suspend or toll any time period that must elapse before the commencement of an action. The amended administrative order’s clarification plainly indicated that a statutory period, such as the 182-day notice period specified in MCL 600.2912b(1) which had to elapse before the commencement of a medical malpractice action, continued to run during the state of emergency.”

The Court of Appeals continued by reviewing the administrative orders in their entirety, noting the parties did not dispute that the plaintiff’s med-mal claims accrued on March 6, 2018. “Plaintiff gave defendants notice of her intent to file a medical malpractice action on February 19, 2020, as required under MCL 600.2912b(1). The 182-day notice period commenced on that date. Under Amended Administrative Order No. 2020-3, 505 Mich lxxiv (2020), that period was not suspended or tolled and continued to run.”

Moreover, because Amended Administrative Order No. 2020-3, 505 Mich lxxiv (2020), “clarified that the notice period continued to run and because the administrative orders by their language only applied to deadlines which took place during the state of emergency, August 19, 2020, was the earliest date on which plaintiff could commence her medical malpractice action,” the Court of Appeals explained. “Under MCL 600.5856(c), because plaintiff served notice of her intent to file her medical malpractice action, the two-year statutory limitations period specified under MCL 600.5805(8) which would have elapsed during the notice period was tolled, such that she had 16 days remaining of the statutory limitations period in which to commence her malpractice action. That gave plaintiff until September 4, 2020, to commence her malpractice action against defendants.”

The plaintiff filed her med-mal suit on December 14, 2020, “long after the expiration of the statutory limitations period,” the Court of Appeals concluded. “Accordingly, her claims against defendants were time-barred. The trial court, therefore, reversibly erred by not granting defendants motions for summary disposition under MCR 2.116(C)(7).”

Concurring Opinion

Judge Michael J. Riordan concurred with the lead opinion and said he wrote separately “to briefly note that the constitutionality of those two administrative orders warrants careful consideration by this Court in a future case.”

According to Judge Riordan, “It might be true that the administrative orders were constitutional under the judiciary’s general equitable powers to toll a statute of limitations. … However, as JUSTICE VIVIANO recently observed, ‘equitable tolling is justified in these circumstances only for court closures or the inaccessibility of courts,’ and the administrative orders at issue here ‘went well beyond that because they were not limited to situations in which the courts were closed.’ … Further, I cannot easily identify another principle of law that would possibly authorize the judicially crafted administrative orders before us, which modify and amend substantive law.”

Therefore, the defendants “present a strong argument that the administrative orders before us are unconstitutional,” he concluded.