Michigan Supreme Court 

Lansing, Michigan 

Chief Justice: Justices: 

Clifford W. Taylor Michael F. Cavanagh 

Elizabeth A. Weaver Opinion 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