**_______________________________** Michigan Supreme Court Lansing, Michigan 48909

Chief Justice Justices Maura D. Corrigan Michael F. Cavanagh Elizabeth A. Weaver Marilyn Kelly Clifford W. Taylor Robert P. Young, Jr. 

# Opinion

Stephen J. Markman

**FILED APRIL 14, 2004**

**COLLENE E. WALTZ, Personal Representative Of the Estate of JERRITH WALTZ, Deceased,**  **Plaintiff-Appellant,**

**v Docket No. 122580**  **CAROL WYSE, D.O., and HILLS & DALES COMMUNITY GENERAL HOSPITAL,**  **Defendants-Appellees.**

**BEFORE THE ENTIRE BENCH YOUNG, J.**  **We granted leave in this wrongful death medical malpractice case to consider the interplay between MCL**  **600.5856(d) 1**  **and MCL 600.5852. 2**  **Specifically, we must determine whether § 5856(d), the medical malpractice notice** 

1 **MCL 600.5856(d) tolls the applicable “statute of limitations or repose” when a claimant, in compliance with**  **MCL 600.2912b, provides written notice of her intent to commence a medical malpractice action.** 

2 **MCL 600.5852 extends the otherwise-applicable limitation periods for wrongful death actions.** **tolling provision, tolls the additional period permitted for filing wrongful death actions under the wrongful death**  **saving provision, § 5852. We conclude that § 5856(d) does not apply to the wrongful death saving provision and that,**  **therefore, plaintiff’s action was not timely filed. Accordingly, we affirm the judgment of the Court of**  **Appeals.**

**I. F**  **ACTS 3**  **AND P**  **ROCEDURAL H**  **ISTORY Plaintiff’s son, four-month-old Jerrith Waltz, died in**  **the emergency room of defendant Hills & Dales Community General Hospital on April 18, 1994. In the months prior to**  **his death, Jerrith was treated by defendant Dr. Carol Wyse for vomiting, diarrhea, pneumonia, and problems leading to**  **dehydration and an inability to eat. Bearing in mind that plaintiff’s son died on April 18,**  **1994, particularly relevant to this appeal are the dates on which plaintiff took steps to file a medical malpractice**  **action against the hospital and Dr. Wyse:**

**1. In January 1999, plaintiff, who had not**  **yet been appointed personal representative of Jerrith’s estate, notified the hospital and Dr.**  **Wyse of her intent to file suit as required by MCL 600.2912b.** 

3 **This matter was resolved on summary disposition. We accept for purposes of this appeal the accuracy of the**  **recitation of facts contained in plaintiff’s notice of intent to file suit and complaint.**  2**2. On May 27, 1999, plaintiff was appointed**  **personal representative of Jerrith’s estate. 3.**  **On June 23, 1999, plaintiff, in her capacity as personal representative, filed a**  **wrongful death medical malpractice complaint against the hospital and Dr. Wyse.**  **Defendants sought summary disposition, arguing that plaintiff had failed to file her complaint within either**  **the applicable two-year limitation period for malpractice actions, MCL 600.5805(5),**  **4 or the additional period allowed**  **for wrongful death actions under § 5852. 5**  **Defendants contended that the notice tolling provision, § 5856(d),**  **6 did** 

4 **MCL 600.5805(5) was renumbered as MCL 600.5805(6) by 2002 PA 715, effective March 31, 2003.** 

5 **MCL 600.5852 provides: If a person dies before**  **the period of limitations has run or within 30 days after the**  **period of limitations has run, an action which survives by law may be commenced by the personal**  **representative of the deceased person at any time within 2 years after letters of authority are**  **issued although the period of limitations has run. But an action shall not be brought under this**  **provision unless the personal representative commences it within 3 years after the period of**  **limitations has run. Thus, § 5852 provides an exception to the otherwise**  **** **applicable limitation periods by permitting the personal representative of a decedent’s estate to file a wrongful**  **death action up to two years after letters of authority are issued, subject to a three-year ceiling.** 

6 **MCL 600.5856 provides, in relevant part: The statutes of limitations or repose are**  **tolled:** 3**not toll the additional period provided for wrongful death actions under § 5852. Defendants argued that § 5852 was**  **not itself a “statute of limitations or repose,” but was instead a**  saving **provision that merely provided a “grace period” that**  extended **the otherwise-applicable limitation period. Moreover, defendants contended that plaintiff had**  **no authority to file her notices of intent in January 1999, before she was appointed personal representative; thus, the**  **notices did not serve to toll the time limit for filing suit in any event.**  **7**

*** * *** **(d) If, during the applicable notice period**  **under [MCL 600.2912b], 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. Under this provision, the limitation period is tolled for**  **182 days if the plaintiff provides a valid notice of intent before the limitation period expires. See MCL**  **600.2912b(1);** Omelenchuk v Warren **, 461 Mich 567; 609 NW2d 177 (2000).** 

7 **In addition to her contention that the statute of limitations barred plaintiff’s action, defendant Wyse**  **argued that (1) plaintiff failed to state a claim upon which relief could be granted because she failed to allege**  **Dr. Wyse’s standard of care or facts demonstrating proximate cause; (2) plaintiff’s affidavit of merit did not**  **comply with the provisions of MCL 600.2912d; and (3) plaintiff’s notice of intent to file suit did not comply**  **with the provisions of § 2912b. Defendant hospital joined in defendant Wyse’s motion only with respect to the statute**  **of limitations issue. Because we conclude that summary disposition was properly granted on that basis, it is**  4**The trial court granted defendants’ motion, holding that (1) because the notice tolling provision, § 5856(d),**  **did not toll the wrongful death “extension period,” § 5852, and (2) because plaintiff was not appointed personal**  **representative until after both the statute of limitations, § 5805(5),**  and **the wrongful death “extension period” had expired, the action was time-barred.**  **8 The Court of Appeals affirmed, holding that the trial**  **court correctly concluded that the statute of limitations barred plaintiff’s claim. Unpublished opinion per curiam,**  **issued October 1, 2002 (Docket No. 231324). We granted plaintiff’s application for leave to appeal.** 

**unnecessary to addre ss the additional issues raised by Dr.**  **Wyse.**

8 **Although in light of our resolution of this matter it is not necessary to address at any length the significance**  **of the fact that plaintiff had not yet been appointed personal representative at the time that she filed her**  **notices of intent, we note that former MCL 700.332 (repealed and recodified in part at MCL 700.3701, 1998 PA**  **386, effective April 1, 2000) provided that “[t]he powers of an independent personal re**  **presentative relate back in time to give acts by the person appointed which are**  **beneficial to the estate occurring before the appointment the same effect as those occurring thereafter.”**  **The trial court additionally held that plaintiff failed to state a claim on which relief could be granted,**  **MCR 2.116(C)(8), because she failed to specifically plead the applicable standard of care. Because we agree that the**  **statute of limitations barred plaintiff’s action, we need not address this alternate ground for summary disposition.**  5**II. S**  **TANDARD OF R**  **EVIEW We review de novo decisions regarding summary**  **disposition motions. 9**  **Under MCR 2.116(C)(7), summary disposition is proper when a claim is barred by the statute**  **of limitations. In determining whether summary disposition was properly granted under MCR 2.116(C)(7), this Court**  **“consider[s] all documentary evidence submitted by the parties, accepting as true the contents of the complaint**  **unless affidavits or other appropriate documents specifically contradict them.”**  **10**

**III. A**  **NALYSIS**

**A .**  **S ECTION**  **5856(d) D**  **OES N**  **OT O**  **PERATE TO T**  **OLL §**  **5852 Plaintiff argues that her complaint was timely filed**  **under the wrongful death provision, § 5852, as extended by the notice tolling provision, § 5856(d). Plaintiff**  **contends that in** Omelenchuk v Warren **, this Court applied the notice tolling provision to § 5852 and referred to §**  **5852 as setting forth a “limitation period.” Thus, despite the fact that she did not file her notices of intent until**  **well after the expiration of the two-year malpractice limitation period, plaintiff claims that she had until** 

9 Maskery v Bd of Regents **, 468 Mich 609, 613; 664 NW2d 165 (2003).** 

10 Fane v Detroit Library Comm **, 465 Mich 68, 74; 631 NW2d 678 (2001); MCR 2.116(G)(5).**  6**October 17, 1999 (182 days after the notices of intent were served) to file suit.**  **The Court of Appeals rejected plaintiff’s argument, holding that the notice tolling provision did not toll the**  **extended filing period for wrongful death actions: In general, the statute of limitations for a**  **wrongful death action is the statute of limitations for the underlying theory of liability,**  Eggleston v Bio-Medical Applications of Detroit, Inc **, 248 Mich App 640, 646; 645 NW2d 279 (2001), which is two**  **years for medical malpractice,** id **., MCL 600.5805(5);**  Solowy v Oakwood Hosp Corp **, 454 Mich 214, 219; 561 NW2d 843 (1997). . . . However, a**  **wrongful death savings provision applies if the deceased died either before or within thirty days**  **after the period of limitations ended. MCL 600.5852;**  McNeil v Quines **, 195 Mich App 199, 202; 489 NW2d 180 (1992). Under the savings provision,**  **the personal representative of an estate may begin a lawsuit within two**  **years after letters of authority are issued, as long as the lawsuit is**  **brought within three years after the two-year general period of limitations ended. MCL 600.5852;**  McNeil, supra **at 202. This creates a maximum time of five years for filing suit, unless the six-month**  **discovery rule in MCL 600.5838(2) applies. Here, plaintiff failed to file her complaint**  **within five years after her son's death. However, she argues that the five-year period was tolled for**  **182 days when her attorney sent both defendants notices of intent before filing suit, as required**  **when a person alleges medical malpractice, MCL 600.2912b(1). See also**  Rheaume v Vandenberg **, 232 Mich App 417, 421; 591 NW2d 331 (1998). Generally,**  **the potential plaintiff must wait at least 182 days after giving notice before**  **filing a complaint, MCL 600.2912b(1); however, this period is reduced to**  **154 days if, as in this case, there was no written response to the notice, MCL 600.2912b(8). See also**  Omelenchuk, supra **at 572-573. When the interval when a potential plaintiff is not allowed to**  **commence an action would end after the expiration of the limitations period, then MCL 600.5856(d)**  7**applies and the period of limitations is tolled for 182 days,**  Omelenchuk, supra **at 574-575, if the notice meets the substantive requirements set forth**  **in MCL 600.2912b,** Roberts v Mecosta Co General Hosp **, 466 Mich 57, 59, 67, 70-71; 642 NW2d 663 (2002).**  **Here, the parties do not dispute that the wrongful death savings statute applied, and thus**  **plaintiff could file suit within five years of the infant's death, which plaintiff did not do.**  **However, plaintiff claims that the notices of intent given to defendants tolled the extended**  **five-year limit set forth in the savings statute, MCL 600.5852. We disagree. We need look no**  **further than the language of the tolling statute to resolve this issue. MCL 600.5856(d) expressly**  **tolls the "statute of limitations." The Supreme Court has said recently that MCL 600.5852 is not a**  **statute of limitations, but rather a savings statute.**  Miller **[** v Mercy Memorial Hosp, **466 Mich 196; 644 NW2d 730 (2002).] Therefore, by its**  **express language, MCL 600.5856(d) tolls the statute of limitations, not the extended limit in MCL**  **600.5852. Consequently, the trial court did not err because the statute of limitations barred**  **plaintiff's claim. [Slip op, pp 2-3.] [11]**  **We agree with and adopt the reasoning of the Court of Appeals in affirming the grant of summary disposition for**  **defendants. Section 5856(d), by its express terms, tolls only the applicable “statute of limitations or repose.” As**  **we recently stated in** Miller, supra **at 202, the wrongful**

11 **The panel distinguished** Omelenchuk **: To the extent that plaintiff relies on**  Omelenchuk, supra **at 577, we find that case distinguishable. In that case, the Supreme Court**  **added the 182-day tolling period to the two-year limitation period that started when the personal**  **representative was appointed, not the five-year maximum at issue here. [Slip op p 3 n 2.]**  8**death provision, § 5852, “is a** saving statute **, not a statute of limitations.” (Emphasis supplied.)**  **12 See also**  Lindsey v Harper Hosp **, in which we explained that § 5852, as “the statute of limitations**  saving provision **” and an**

**“** exception **to the statute of limitations,” operated “to suspend the running of the statute until a personal**  **representative is appointed to represent the interests of the estate.”**  **13 The plain language of § 5852 wholly supports our**  **conclusion that it is not itself a “statute of limitations.” Again, § 5852 provides:**  **If a person dies before the** period of limitations **has run or within 30 days after the** period of limitations **has run, an action which survives by law may be commenced by the personal**  **representative of the deceased person at any time**

12 **Even our dissenting colleague agrees that it has long been settled that § 5852 is not a statute of**  **limitations, but a savings provision. See** post **at 10. However, the dissent does not address the plain language of**  **§ 5856(d), which tolls only the applicable “** statute of limitations or repose. **” The dissent further questions “how a claim may be**  **considered time-barred under the sav ing provision if the**  **saving provision is not a limitation period.”** Post **at 12. The dissent misunderstands our analysis. Plaintiff’s claim**  **is not time-barred under the** saving **provision. Rather, it is barred by the two-year statute of limitations for**  **medical malpractice actions. The saving provision simply does not**  save **plaintiff’s claim because she did not file her complaint until after the**  grace period **provided for in the saving provision had expired.** 

13 Lindsey v Harper Hosp **, 455 Mich 56, 60-61, 65; 564**  **NW2d 861 (1997).** 9**within 2 years after letters of authority are issued**  although the period of limitations has run **. But an action shall not be brought under this**  **provision unless the personal representative commences it within 3 years after the**  period of limitations **has run. [Emphasis supplied.] By its own terms, § 5852 is operational only within the**  **context of the** separate **“period of limitations” that would otherwise bar an action. Section 5852 clearly provides**  **that it is an** exception **to the limitation period, allowing the commencement of a wrongful death action as many as**  **three years after the applicable statute of limitations has expired.**  **In this case, the two-year limitation period provided in § 5805(5) expired on April 18, 1996, two years after**  **Jerrith’s death. In order to toll the period under § 5856(d), plaintiff was required to provide notices of**  **intent in compliance with the provisions of MCL 600.2912b before the expiration of the**  **two-year limitation period. Had she done so, the limitation period would have been**  **tolled for 182 days. See** Omelenchuk, supra **. However, plaintiff did not provide her notices of**  **intent until January 1999, well after the expiration of the two-year limitation period. As we have explained, the**  **three-year ceiling provided in the wrongful death saving provision was not “tolled” following plaintiff’s provision** 

10**of the notices of intent. Thus, plaintiff’s June 23, 1999, complaint was time-barred.**  **14**

**B.** O MELENCHUK V W ARREN **Plaintiff argues, and the Court of Appeals apparently agreed, that this Court in**  Omelenchuk **applied the notice tolling provision to § 5852. See slip op, p 3 n 2. We**  **take this opportunity to clarify our holding in** Omelenchuk **. The issue in**  Omelenchuk **was whether the malpractice notice tolling provision tolled the statutory limitation**  **period for a full 182 days or, instead, for only 154 days, when a medical malpractice claimant does not receive the**  **written response to the notice of intent contemplated under**

14 **We disagree with the dissent’s assertion that our reading of the applicable statutes “effectively reduce[s]”**  **by 182 days the two- and three-year periods provided for in § 5852. See**  post **at 21. Plaintiff had a full two years after letters of authority were issued to commence her**  **claim, as long as the claim was commenced within three years after the expiration of the two-year limitation**  **period for medical malpractice actions. Additionally, plaintiff was entitled to a 182-day tolling period under §**  **5856(d), provided that she filed her notice of intent at some point before the ex**  **piration of that two-year limitation period. Potentially, then, under §§ 5805(5),**  **5852, and 5856(d), plaintiff had** five years plus 182 days **to commence her lawsuit following the accrual of her cause of action. However, because plaintiff waited until nearly**  **five years had passed after her infant’s death to file her notice of intent, there was simply no unexpired “statute of**  **limitations” to toll. This analysis in no way shortens either the two-year extension period or the three-year**  **ceiling provided for in § 5852.** 11**MCL 600.2912b(7). 15**  **We held that the limitation period was tolled for the entire 182-day period, notwithstanding the**  **fact that the plaintiffs, who were appointed personal representatives of the decedent’s estate the day after his**  **death and who filed their notice of intent before the expiration of the two-year limitation period,**  could **have commenced their lawsuit after only 154 days.**  **It was unnecessary in** Omelenchuk **to determine whether the 182-day notice tolling provision applied to the**  **wrongful death saving provision. The plaintiffs’ decedent died on February 13, 1994. Leaving aside application of**  **the wrongful death saving provision, the two-year medical malpractice limitation period would thus**  **have expired on February 13, 1996. The plaintiffs filed their notice of**  **intent on December 11, 1995, and they did not receive a written response from the defendants. We held that the**  **plaintiffs were entitled to a tolling period of a full 182 days, rather than only 154 days, even though under MCL**  **600.2912b(8) they** could **have filed suit after 154 days. Applying the 182-day tolling period, the two-year** 

15 **MCL 600.2912b(7) provides that the recipient of a notice of intent shall furnish a written response within**  **154 days after receipt. MCL 600.2912b(8) provides that if no response is received by the claimant, he may commence a**  **medical malpractice action upon the expiration of the 154 -**  **day period rather than waiting out the full 182-day period otherwise contemplated by § 2912b(1).**  12**limitation period would have expired on August 13, 1996,** irrespective of the wrongful death saving statute **. The plaintiffs filed their complaint on July 19, 1996, well**  **before expiration of the limitation period as extended by the tolling provision.**  **The source of the confusion surrounding our holding in** Omelenchuk **stems in part from our passing references to § 5852 as creating a “limitation period.” See, e.g.,**  Omelenchuk, supra **at 577: In the present case, the plaintiffs’ decedent**  **died on February 13, 1994. The plaintiffs received their letters of authority the next day, February**  **14, 1994. Thus, [pursuant to § 5852,] the two-year** limitation period **was set to expire on February 14, 1996. [Emphasis added.]**  **To the extent that our imprecise choice of words in** Omelenchuk **implied that § 5852 created a separate**  **“limitation period,” we again clarify that § 5852 is not a statute of limitations, but a**  saving **statute. We additionally note that we mistakenly, and**  **unnecessarily, based our time calcul ations on a starting**  **date of February** 14 **, 1994 (the date the personal representatives were appointed), when we should have based**  **those calculations on the accrual date of the cause of action, February**  13 **, 1994 (the date of the decedent’s death). See**  Omelenchuk, supra **at 577:**

13**In the present case, the plaintiffs' decedent died on February 13, 1994. The plaintiffs received**  **their letters of authority the next day, February 14, 1994. Thus, the two-year limitation period was**  **set to expire on February 14, 1996. On December 11, 1995 (sixty-five days before**  **the expiration of the limitation period) the plaintiffs provided the required notice to the**  **defendants. As a result of the notice, the limitation period was tolled one hundred eighty-two**  **days. Rather than expiring on February 14, 1996, the limitation period thus was tolled from December**  **11, 1995, until June 10, 1996; it then resumed for another sixty-five days until it**  **expired on August 14, 1996.**  *** * *** **The plaintiffs . . . filed their complaint on July 19, 1996, nearly a month before the end of the**  **recalculated limitation period. We should have stated that rather than expiring on**  **February** 13 **, 1996, the limitation period was tolled from December 11, 1995, until June 10, 1996, and then resumed**  **for another sixty-five days until it expired on August** 13 **, 1996. In any event, it was unnecessary to apply the**  **wrongful death saving provision because the action was commenced within the two-year limitation period. To the**  **limited extent that the above-quoted portion of** Omelenchuk **might be viewed as sanctioning application of the notice tolling provision to the wrongful death saving provision,**  **it is hereby overruled.**

**IV. C**  **ONCLUSION Section 5852 is a**  saving **provision designed “to preserve actions that survive death in order that the**  14**representative of the estate may have a reasonable time to pursue such actions.”**  Lindsey, supra **at 66. It is not a “statute of limitations” or a “statute of repose.” Thus,**  **the notice tolling provision, § 5856(d)——which explicitly applies only to “the statute of limitations or repose”——**  **does not operate to toll the additional period permitted under § 5852 for filing wrongful death actions. Because**  **plaintiff did not file her complaint until well after the expiration of both the two-year limitation period for**  **malpractice actions and the grace period provided for in § 5852, the lower courts properly determined that the action**  **was time-barred. Accordingly, we affirm the judgment of the Court of Appeals.**  **Robert P. Young, Jr. Maura D. Corrigan**  **Elizabeth A. Weaver Clifford W. Taylor**  **Stephen J. Markman**

15**S T A T E O F M I C H I G A N**

**SUPREME COURT**

**COLLENE E. WALTZ, Personal Representative of the Estate of JERRITH WALTZ, Deceased,**  **Plaintiff-Appellant,**

**v No.**  **122580 CAROL WYSE, D.O., AND HILLS &**  **DALES COMMUNITY GENERAL HOSPITAL, Defendants-Appellees.** 

**_______________________________ CAVANAGH, J. (**  dissenting **). This**  **case calls**  **on us**  **to determine**  **whether MCL**  **600.5856(d) tolls the period provided for filing wrongful death claims under MCL 600.5852 where the wrongful death**  **claim is predicated on medical malpractice. Because I find that § 5856(d) applies to § 5852, I respectfully dissent**  **from the majority’s decision. The majority’s holding has the practical effect of shortening**  **the period the Legislature expressly permits for bringing wrongful death**  **actions. Consistently with the will of the Legislature and this Court’s unanimous opinion per curiam in**  Omelenchuk v City of Warren **, 461 Mich 567; 609 NW2d 177 (2000), I would reverse the decision of the Court of Appeals.** **I. I**  **NTERPLAY OF R**  **ELEVANT S**  **TATUTORY P**  **ROVISIONS Today’s decision evidences the majority’s**  **misunderstanding of the nature of plaintiff’s claim, as well as the interplay between the statutory limitation**  **provisions pertaining to wrongful death actions and medical malpractice claims. Presumably, it is this basic**  **misunderstanding that drives the majority’s result. The majority states, “In this case, the two-year limitation**  **period provided in § 5805(5) expired on April 18, 1996, two years after Jerrith’s death. In order to toll the period**  **under § 5856(d), plaintiff was required to provide notices of intent in compliance with the provisions of MCL**  **600.2912b before the expiration of the two-year limitation period.”**  Ante **at 11. Because the majority does not fully comprehend the nature of this case, an examination of**  **plaintiff’s claim and the applicable statutory provisions is necessary.**  **“Early in its history, Michigan adopted a rather liberal ‘survival act’ to preserve causes of action which,**  **under common law, were terminated by the death either of the person injured or the tortfeasor.”**  Hawkins v Regional Med Labs, PC **, 415 Mich 420, 428-429; 329 NW2d 729 (1982). MCL 600.2921 pertains to survival actions and provides:** 

2**All actions and claims survive death. Actions on claims for injuri**  **es which result in death shall not be prosecuted after the death of**  **the injured person except pursuant to the next**  **section. If an action is pending at the time of death the claims may be amended to bring it under**  **the next section. A failure to so amend will amount to a waiver of the claim for additional**  **damages resulting from death. Thus, survival type wrongful death actions are filtered**  **through MCL 600.2922, which provides in pertinent part: (1)**  **Whenever the death of a person or injuries resulting in death shall**  **be caused by wrongful act, neglect, or fault of another, and**  **the act, neglect, or fault is such as would, if death had not ensued, have entitled the party**  **injured to maintain an action and recover damages, the person who or the corporation that**  **would have been liable, if death had not ensued, shall be liable to an action for damages,**  **notwithstanding the death of the person injured, and although the death was caused under**  **circumstances that constitute a felony. The statute of limitations for a wrongful death action**  **is normally governed by the statute of limitations for the underlying claim.**  Larson v Johns-Manville Sales Corp **, 427 Mich 301, 314; 399 NW2d 1 (1986). In general, the**  **limitation period for a medical malpractice action is two years. MCL 600.5805(5);**  Miller v Mercy Memorial Hosp **, 466 Mich 196, 199; 644 NW2d 730 (2002). The Legislature,**  **however, has set forth specific statutory limitation provisions relating to medical malpractice and wrongful**  **death actions.**

3**For example, MCL 600.5838a provides in pertinent part: (1)**  **For purposes of this act, a claim based on the medical malpractice of a person or entity**  **who is or who holds himself or herself out to be a licensed health care professional, licensed**  **health facility or agency, or an employee or agent of a licensed health facility or agency who**  **is engaging in or otherwise assisting in medical care and treatment, whether or not the licensed**  **health care professional, licensed health facility or agency, or their employee or agent is**  **engaged in the practice of the health profession in a sole proprietorship, partnership,**  **professional corporation, or other business entity, 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.** 

*** * *** **(2) Except as otherwise provided in this**  **subsection, an action involving a claim based on medical malpractice**  may be commenced at any time within the applicable period prescribed in section 5805 or sections 5851 to 5856 **, or within 6 months after the plaintiff discovers or should**  **have discovered the existence of the claim, whichever is later. [Emphasis added.]**  **Further, and at issue here, is the wrongful death saving provision. MCL 600.5852 provides in pertinent part:**  **If a person dies before the period of limitations has run or within 30 days after the**  **period of limitations has run, an action which**  **survives by law may be commenced by the personal representative of the deceased person at any time**  **within 2 years after letters of authority are issued although the period of limitations has**  **run. But an action shall not be brought under this provision unless the personal representative**  **commences it within 3 years after the period of limitations has run.** 

4**Under § 5852, the Legislature has expressly granted a personal representative “an additional two years from the**  **date of issuance of letters [of authority] in which to bring suit provided that, in any event, the [personal**  **representative] brings suit not more than three years after the limitations period has run.”**  Hawkins **,** supra **at 438. Thus, the Legislature has extended the time in which to**  **bring wrongful death claims, including those claims based upon medical malpractice.**  **It is against this backdrop that the Legislature’s tort reform measures must be considered. The Legislature**  requires **a plaintiff alleging medical malpractice, including a personal representative bringing a wrongful**  **death action, to provide notice of intent to commence an action to the defendant before filing a complaint. MCL**  **600.2912b;** Roberts v Mecosta Co Gen Hosp **, 466 Mich 57, 65; 642 NW2d 663 (2002). After giving notice of intent, a**  **plaintiff** must **wait at least one hundred eighty-two days before filing the complaint; however, this period may be**  **reduced to one hundred fifty-four days if the plaintiff does not receive a written response from the defendant.**  **MCL 600.2912b(1) and (8). During this “waiting period** required **under MCL 600.2912b,” however, the Legislature has provided that MCL 600.5856(d) will toll the period of** 

5**limitations.** Roberts **,** supra **at 60 (emphasis added). MCL 600.5856(d) provides:**  **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 of days equal to the number**  **of days in the applicable notice period after the date notice is given in compliance with section**  **2912b. The Legislature has seen fit to provide a**  **comprehensive time frame for actions alleging medical malpractice. The statutes pertaining to the timing of**  **medical malpractice and wrongful death are intertwined.**

**II.** O MELENCHUK V C ITY OF W ARREN

**In** Omelenchuk **, nearly all the aforementioned statutory provisions were implicated. Thus, the majority’s newfound**  **wisdom and its avoiding that decision necessitate a thorough examination.**  **In examining the language of the notice tolling provision, § 5856(d), this Court began its analysis with**  **the following observation: “Certainly, that provision could have been written more clearly.”**  Omelenchuk **,** supra **at 574. In construing § 5856(d), this Court noted:**  **If, however, the interval when a potential plaintiff is not allowed to file suit would end**  **after the expiration of the** limitation period **(i.e., if notice is given one hundred eighty-two days or less before the end of the**  limitation period **), then MCL 600.5856(d); MSA 27A.5856(d)**

6**applies. In that instance, the** limitation period **is tolled. [** Id **. (emphasis added).] In determining how long the limitation period is tolled**  **under § 2912b, “we conclude[d] and [held] that the preferred construction is that the**  limitation period **is tolled for the full one hundred eighty-two days.”**  Id **. at 575 (emphasis added).**  **In applying the notice tolling provision, § 5856(d), to the wrongful death saving provision, § 5852, we noted:**  **In the present case, the plaintiffs' decedent died on February 13, 1994. The**  **plaintiffs received their letters of authority the next day, February 14, 1994. Thus, the two**  **** **year** limitation period **was set to expire on** February 14, 1996 **. On December 11, 1995 (sixty-five days before**  **the expiration of the** limitation period **) the plaintiffs provided the required notice to the**  **defendants. As a result of the notice, the** limitation period **was tolled one hundred eighty**   ** two days. Rather than expiring on** February 14, 1996 **, the** limitation period **thus was tolled from December 11, 1995, until June 10, 1996; it then**  **resumed for another sixty-five days until it expired on August 14, 1996.**  **The plaintiffs were unable to file suit for one hundred fifty-four days after they provided**  **notice on December 11, 1995. . . . This no-suit interval ended on May 13, 1996, after which they**  **were able to file suit. The plaintiffs then filed their complaint on July 19, 1996, nearly a month**  **before the end of the recalculated** limitation period **. [** Id **. at 577 (emphasis added).] Thus, this Court, in a unanimous decision, unquestionably**  **applied § 5856(d) to the limitation period provided under § 5852.** 

7**III. T**  **HE M**  **AJORITY ’**  **S A**  **TTEMPTS TO A**  **VOID** O MELENCHUK **The majority, in vain attempts to avoid the ramifications of this Court’s decision in**  Omelenchuk **, asserts that (1) “we mistakenly, and unnecessarily, based**  **our time calculations on a starting date of February** 14 **, 1994”;**  **1 and (2) confusion has stemmed from “our imprecise**  **choice of words in** Omelenchuk **[that] implied that § 5852 created a separate ‘limitation period.’”**  **2 Neither assertion**  **has merit and, thus, the majority’s decision to conditionally overrule**  Omelenchuk **is unwarranted.**

**A. T**  **HE T**  **IME C**  **ALCULATIONS IN** O MELENCHUK **W ERE**  **A CCURATE**  **The** Omelenchuk **plaintiffs, as personal representatives of the decedent’s estate, instituted a wrongful death**  **action. By operation of §§ 2921, 2922, and 5852, the decedent’s claim survived. Because the decedent died**  **within the two-year period of limitation under § 5805, the saving provision took effect and the plaintiffs were**  **operating under the period set forth under § 5852, the saving provision. Thus, we did not mistakenly or**  **unnecessarily base our calculations on the date of**

1 Ante **at 13 (emphasis in original).**

2 Ante **at 14-15.**

8**appointment. Under § 5852, we were required to measure the applicable two-year period from the date the personal**  **representatives were appointed. We were not permitted to**  **consider the**  **date of**  **death under**  **the circumstances**  **presented in** Omelenchuk **. The majority is simply wrong in its assertion that**  Omelenchuk **should have based its calculations on the date the cause of action accrued. The**  **date of death in that case, February 13, 1994, would only have been relevant (1)**  **if the decedent somehow survived and brought a medical malpractice claim himself or (2) in determining the three**  **** **year ceiling provided under § 5852. As such, it was absolutely necessary for this Court to examine the wrongful**  **death saving provision because that was the nature of the plaintiffs’ claim. Thus, the majority’s attempt to**  **“clarify”** Omelenchuk **is disingenuous.**

**B. S**  **ECTION 5852**  **D OES**  **S ET**  **F ORTH A**  **L IMITATION**  **P ERIOD**  **In an attempt to further distance itself from the result reached in**  Omelenchuk **, the majority now asserts that we misspoke when we referred to § 5852 as a limitation**  **period. Instead, the majority simply contends that § 5852 is not a statute of limitation, but a saving provision, in**  **order to justify its current holding. This point of law, however, was settled long before our decision in** 

9Omelenchuk **.** Hardy v Maxheimer **, 429 Mich 422, 425; 416 NW2d 299 (1987);**  Lindsey v Harper Hosp **, 455 Mich 56, 60-61; 564 NW2d 861 (1997). Further, while not formally labeled a**  **statute of limitation, it is clear from our prior decisions that § 5852 is a limitation period because it sets forth**  **its own period of limitations.**

**In** Lindsey **, for example, the defendant moved for summary disposition under MCR 2.116(C)(7), asserting that**  **the plaintiff’s claim was barred under § 5852 because the plaintiff filed suit more than two years after being**  **appointed temporary personal representative.** Lindsey **,** supra **at 60. The plaintiff argued that the claim was timely because the claim was filed within two years of the**  **issuance of formal letters of authority. This Court held that the saving provision begins to run when a plaintiff is**  **appointed temporary personal representative. Because the plaintiff did not bring suit within two years after being**  **appointed temporary personal representative as required under § 5852, the**  Lindsey **Court held that the plaintiff’s claim was**  untimely **and, thus, barred. As such, we did not misspeak when we referred to § 5852 as a limitation period**  **in** Omelenchuk **.** Miller **also supports the conclusion reached in** Omelenchuk **that the saving provision is a limitation**

10**period. In concluding that the six-month discovery rule, § 5838a(2), was a “period of limitation” within the meaning**  **of the saving provision, this Court noted: Contrary to defendants' assertions, the six**  **** **month discovery rule is a distinct period of limitation. It is a statutory provision that**  **requires a person who has a cause of action to bring suit within a specified time. As an**  **alternative to the other periods of limitation, it is itself a period of limitation. [**  Miller **,** supra **at 202.] This inevitably leads to the conclusion that because § 5852**  **requires a plaintiff to bring suit within a specified time, § 5852 must be considered a limitation period.**  **Finally, the majority’s decision itself necessarily supports the notion that § 5852 is a limitation period.**  **The majority concludes that because the wrongful death saving provision was not tolled during the notice period,**  **plaintiff’s complaint is time-barred. I question how a claim may be considered time-barred under the saving**  **provision if the saving provision is not a limitation period.**  **3 While § 5852 is not for**  **mally labeled as a statute**

3 **Contrary to the majority’s assertion, I do not misunderstand its analysis. Rather, I believe that its**  **analysis is fundamentally flawed. Plaintiff’s claim is not governed by the two-year statute of limitations under**  **§ 5805 because her cause of action, by operation of law, proceeds under the limitation period set forth under**  **§ 5852, the savings provision. Therefore, if plaintiff’s**

11**of limitation, it is clear that if a plaintiff does not adhere to the period of limitations set forth under the**  saving provision **, he is subject to having his claim dismissed as untimely. Thus, this unanimous Court did not**  **misspeak in** Omelenchuk **when it referred to § 5852 as setting forth a limitation period.**  **In sum, I find the majority’s attempts to evade** Omelenchuk **unacceptable. I believe** Omelenchuk **reached the correct result and effectively harmonized the applicable**  **statutory provisions pertaining to the limitation of actions. In fairness, however, I suppose the majority’s**  **avoidance of** Omelenchuk **is necessary to support its overly narrow construction of § 5856(d).** 

**IV. T**  **HE M**  **AJORITY ’**  **S N**  **ARROW C**  **ONSTRUCTION IS C**  **ONTRARY TO THE L**  **EGISLATURE ’**  **S**

**I NTENT**  **The majority considers § 5856(d) in isolation and strictly construes five words contained in that particular**  **provision without regard to the other relevant and applicable statutory provisions implicated in this action.**  **In doing so, the majority undermines the Legislature’s intent and violates several well-established principles of**  **statutory construction. Applying accepted principles of**

**claim is to be co nsidered time-barred at all, it must**  **necessarily be barred under § 5852, not § 5805.**

12**construction, I would hold that § 5856(d) is applicable to § 5852.**  **“The primary goal of statutory interpretation is to give effect to the intent of the Legislature.”**  In re MCI **, 460 Mich 396, 411; 596 NW2d 164 (1999). To reach this**  **goal, this Court has recognized the rule that “statutes relating to the same subject matter should be read and**  **construed together to determine the Legislature’s intent.”** Id **.** at **416. Further, it is “a maxim of statutory construction that**  every word **of a statute should be read in such a way as to be given meaning . . . .”**  Id **. at 414 (emphasis added); see also**  Danse Corp v Madison Hts **, 466 Mich 175, 182; 644 NW2d 721 (2002)(“The court must presume**  **that every word has some meaning and, if possible, effect should be given to each provision.”).**  **As detailed above, the timing provisions relating to wrongful death actions, medical malpractice claims, and**  **notice tolling are interconnected and are part of a common legislative framework. Because the various statutory**  **provisions implicated in this case relate to the same subject matter, the terms of the provisions should be read**  in pari materia **.** Jennings v Southwood **, 446 Mich 125, 136 -**  **137; 521 NW2d 230 (1994). “The object of the rule** in pari materi **a is to carry into effect the purpose of the**

13**legislature as found in harmonious statutes on a subject.”** Id **. at 137, quoting** Wayne Co v Auditor General **, 250 Mich 227, 233; 229 NW 911 (1930). In**  Detroit v Mich Bell Tel

Co **, 374 Mich 543, 558; 132 NW2d 660 (1965), this Court stated:** 

**Statutes** in pari materia **are those which relate to the same person or thing, or the same**  **class of persons or things, or which have a common purpose. It is the rule that in**  **construction of a particular statute, or in the interpretation of its provisions, all statutes**  **relating to the same subject, or having the same general purpose, should be read in connection**  **with it, as together constituting one law, although enacted at different times . . . .**  **[4] The purpose of the wrongful death statutory framework**  **is to preserve causes of action, including those based on medical malpractice, which were previously terminated by**  **the death of either the injured party or the wrongdoer under the common law.**  Hawkins **,** supra **at 428-429. Similarly, the purpose of § 5852, the saving provision, is**  **to “preserve actions that survive death in order that the**

4 **See also** Dearborn Twp Clerk v Jones **, 335 Mich 658, 662; 57 NW2d 40 (1953)(“’It is elementary that statutes**  in pari materia **are to be taken together in ascertaining the intention of the legislature, and that courts will regard**  **all statutes upon the same general subject matter as part of 1 system.”);**  Remus v Grand Rapids **, 274 Mich 577, 581; 265 NW 755 (1936)(“In the construction of a particular**  **statute, or in the interpretation of any of its provisions, all acts relating to the same subject, or having the same**  **general purpose, should be read in connection with it, as together constituting one law.’” [citation omitted].)** 

.

14**representative of the estate may have reasonable time to pursue such actions.”**  Lindsey **,** supra **at 66. Under § 5852, the Legislature has deemed two years from the issuance of**  **letters of authority to be a reasonable time, but, in any event, suit must be filed no more than three years from the**  **date the statute of limitations on the underlying claim has expired. The saving provision remained unchanged in the**  **face of tort reform; evidencing that the Legislature still considered two years to be a reasonable time in which to**  **pursue wrongful death claims predicated on medical malpractice, subject to the three-year ceiling.**  **Consistently with the rule of** in pari materia **, the aforementioned provisions must be read**  **together with the Legislature’s subsequent tort reform measures.**  **Under 1993 PA 78, the Legislature amended the Revised Judicature Act and drastically changed the procedures**  **necessary to bring a medical malpractice claim in Michigan. Notably, § 2912b introduced the notice of intent**  **requirement and its corresponding no-suit interval. However, the Legislature also amended § 5856 to include**  **subsection d, which provides th at the “statute of**  **limitations or repose” is tolled during this notice period. “The purpose of the notice requirement is to promote**  **settlement without the need for formal litigation and**

15**reduce the cost of medical malpractice litigation while still providing compensation for meritorious medical**  **malpractice claims that might otherwise be precluded from recovery because of litigation costs.”**  Neal v Oakwood Hosp Corp **, 226 Mich App 701, 705; 575 NW2d 68 (1997), citing Senate Legislative Analysis, SB 270, August 11, 1993, and**  **House Legislative Analysis, HB 4403-4406, March 22, 1993. Thus, the no-suit interval temporarily incapacitates a**  **medical malpractice plaintiff, including a personal representative bringing a wrongful death claim, so that the**  **defendant may investigate the claim and meaningful settlement negotiations may then occur. In exchange for**  **not being able to file suit, the Legislature has said that the limitation period is tolled during the notice period so**  **that a plaintiff’s position is not prejudiced. When §§ 2912b, 2921, 2922, 5805, 5852, and 5856(d) are read**  **together, it becomes clear th at the Legislature intended**  **the notice tolling provision to apply to the saving provision.**  **The approach I advance today is consistent with the approach this Court unanimously used in**  Miller **. As mentioned above, the issue in**  Miller**was whether the six month discovery provision for medical malpractice claims, §**  **5838a, was incorporated in the wrongful death saving**

16**provision. This Court disagreed with the Court of Appeals conclusion that the only “period of limitation” applicable**  **to a medical malpractice action under § 5852 was the two**   ** year period under § 5805(5). In reaching our ultimate** **conclusion that § 5838a(2) applied to § 5852, this Court considered that the purpose of § 5852 was to preserve**  **actions and to provide a reasonable time in which to pursue wrongful death claims. This Court further stated:**  **That purpose is fulfilled by our decision today. Had plaintiff's decedent not died, he**  **would have been able to bring suit for six months, or until July 1996. Suit would have been**  **timely, not under § 5805(5), but under § 5838a(2), not as an exception to the two-year**  **statute, but as an additional period of limitation. [**  Miller, supra **at 203.] Thus, the saving provision must necessarily be considered**  **both a limitation period and, in light of the purposes of that provision and the tort reform measures, a period**  **subject to the notice tolling provision. Further, while currently out of favor with some**  **members of this Court, the approach I advance today is also consistent with another accepted maxim of statutory**  **construction. It has long been recognized that “the Court may depart from strict construction principles when a**  **literal reading of the statute will produce absurd or illogical results, and this Court should attempt to give** 

17**effect to all relevant statutory provisions.”** DiBenedetto v West Shore Hosp **, 461 Mich 394, 408; 605 NW2d 300 (2000) (C**  **AVANAGH ,**  **J., dissenting), citing** Gross v Gen Motors Corp **, 448 Mich 147; 528 NW2d 707 (1995), and**  In re Landaal **, 273 Mich 248, 252; 262 NW 897 (1935).**  **Personal representatives who bring a wrongful death claim on the basis of medical malpractice must comply with**  **the notice of intent provision and likewise may not file suit during the no-suit interval. However, by operation of**  **law, the limitation period for these causes of action is governed by § 5852, not § 5805(5). Under the majority’s**  **holding, wrongful death plaintiffs must still comply with the notice requirement of § 2912b, but do not receive the**  **benefit of tolling under § 5856(d) because, according to the majority, § 5856(d) only applies to § 5805. This**  **holding, however, ignores the fact that wrongful death plaintiffs**  must **proceed under the limitation period set forth by § 5852, not § 5805, and**  must **follow the mandates of § 2912b. Further, the majority’s decision effectively**  **shortens the period the Legislature has plainly allowed under § 5852 by one hundred eighty-two days. The facts of**  **this case illustrate the absurdity of the majority’s result.** 

18**Between February and April 1994, defendant Wyse evaluated plaintiff’s four-month-old son. On April 13,**  **1994, plaintiff took her son to defendant Hills & Dales Community General Hospital; however, her son was not**  **admitted. On April 17, 1994, plaintiff brought her son back to defendant hospital and the baby died at the**  **hospital the next day, April 18, 1994. Thus, under § 5805, the medical malpractice statute of limitations was set to**  **expire on April 18, 1996. Further, the three-year ceiling provided under § 5852 was set to expire on April 18, 1999.**  **Plaintiff, as personal representative of her son’s estate, had to file suit within two years of her**  **appointment, but was required to file no later than April 18, 1999, under the plain language of the saving provision.**  **Because plaintiff was alleging medical malpractice, she also had to provide defendants with notices of intent**  **before filing her action. Plaintiff served the required notices of intent in January 1999, well before the**  **expiration of the three-year ceiling under § 5852. Yet, under § 2912b, plaintiff could not file suit for one**  **hundred eighty-two days, or for one hundred fifty-four days if defendants failed to give a written response. Thus,**  **plaintiff could not have filed suit before the three-year ceiling expired even if she so desired under the current** 

19**tort reform system because plaintiff was in the “no-suit interval,” i.e., plaintiff was**  required **to wait under § 2912b.**  **During this no-suit interval, the Legislature has said that, under § 5856(d), time stands still so that a**  **plaintiff’s position is not prejudiced and the purposes of the tort reform measures can come to fruition. If time**  **were not tolled for wrongful death plaintiffs in the same manner as other plaintiffs, the plain language of § 5852 is**  **shortened by one hundred eighty-two days. A wrongful death plaintiff would have to give notices of intent at least one**  **hundred eighty-two days before the expiration § 5852. Thus, the two years expressly provided under the saving**  **provision are effectively reduced to one-and-a-half years, and the three-year ceiling is reduced because plaintiffs**  **are required to provide notice of intent one hundred eighty-two days before the expiration of the three-year**  **ceiling. In this case, for example, plaintiff would then have been required to give her notices of intent by October**  **16, 1998. Such a result is in direct conflict with the**  **plain language of § 5852 and is contrary to the purpose of the tort reform measures.** 

20**The following highlights the differences between the majority’s decision and the prop**  **er reading of the applicable provisions:** 

**REQUIRED NO-SUIT INTERVAL**

**April 18, 1994 January 16 & 19, 1999 June 22, 1999**  **Plaintiff’s baby Plaintiff served notices No-suit interval dies**  **of intent as required expires under**  **under § 2912b § 2912b(7) & (8)** 

**April 18, 1996 April 18, 1999**  **June 23, Medical malpractice**  **Date majority 1999**  **statute of limitation says plaintiff Plaintiff**  **expires under § 5805 must have filed**  **files suit**

**§ 5852 TOLLED BY § 5856(d)**

**The Legislature clearly did not intend for wrongful**  **death plaintiffs to be prejudiced during the no-suit interval. Yet, this is the result reached by today’s**  **majority. By strictly construing five words in isolation and closing its eyes to the other applicable statutory**  **limitation provisions and legislative intent, the majority effectively and impermissibly rewrites part of the Revised**  **Judicature Act. The majority, not the Legislature, has elected to treat the notice period for wrongful death**  **plaintiffs alleging medical malpractice differently from**

21**the notice period medical malpractice plaintiffs who happen to survive their injuries.** 

**V. C**  **ONCLUSION Rather than rewriting the Re**  **vised Judicature Act, I would read the various statutory provisions as one law.**  **Because the notice tolling provision and the wrongful death savings provision are part of the same law, I would hold**  **that § 5856(d) applies to claims governed by the limitation period under § 5852. This approach is consistent with the**  **Legislature’s intent, accepted principles of statutory construction, and this Court’s unanimous opinion per curiam**  **in** Omelenchuk **. I would, therefore, reverse the decision of the Court**  **of Appeals and remand for trial. 5**  **Michael F. Cavanagh Marilyn Kelly** 

5 **As the majority accurately notes, former MCL 700.332 dictates that plaintiff’s appointment as personal**  **representative relates back to the time she gave her notices of intent. Thus, the trial court erred in granting**  **defendants’ motion for summary disposition on this ground. Further, defendant Wyse’s arguments that plaintiff failed**  **to state a claim upon which relief could be granted and that the notices of intent were deficient under § 2912b are**  **without merit.**

22