Michigan Supreme Court Lansing, Michigan

Chief Justice: Justices: Clifford W. Taylor Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly 

# Opinion

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**

7People 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** 

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