_______________________________ 

 

Michigan Supreme Court 

Lansing, Michigan 48909 

Chief Justice Justices 

Maura D. Corrigan Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Clifford W. Taylor Opinion Robert P. Young, Jr. 

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. FACTS3

 AND PROCEDURAL HISTORY 

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 otherwiseapplicable 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 address 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 representative 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. STANDARD OF REVIEW 

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. ANALYSIS 

A. SECTION 5856(d) DOES NOT OPERATE TO TOLL § 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 saving 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. OMELENCHUK V WARREN 

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 expiration 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 calculations 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. CONCLUSION 

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. INTERPLAY OF RELEVANT STATUTORY PROVISIONS 

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 injuries 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. OMELENCHUK V CITY OF WARREN

 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 twoyear 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 eightytwo 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. THE MAJORITY’S ATTEMPTS TO AVOID OMELENCHUK 

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. THE TIME CALCULATIONS IN OMELENCHUK WERE ACCURATE

 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 threeyear 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. SECTION 5852 DOES SET FORTH A LIMITATION PERIOD 

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 

9
 
Omelenchuk. 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 sixmonth 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 formally 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. THE MAJORITY’S NARROW CONSTRUCTION IS CONTRARY TO THE LEGISLATURE’S 

INTENT 

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 considered 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 

materia 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 that 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 that 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 sixmonth 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 twoyear 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) 

(CAVANAGH, 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 proper 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. CONCLUSION 

Rather than rewriting the Revised 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