Morrison v. Dickinson , 217 Mich. App. 308 ( 1996 )

551 N.W.2d 449 (1996) 217 Mich. App. 308

Julie MORRISON and Robert Morrison, Plaintiffs-Appellees, Cross-Appellants,
v.
Timothy K. DICKINSON, M.D., and Allegan Medical Clinic, P.C., Defendants-Appellants, Cross-Appellees, and
Allegan General Hospital, Defendant, and
Michigan Trial Lawyers Association and Michigan State Medical Society, Amici Curiae.
Julie MORRISON and Robert Morrison, Plaintiffs-Appellees, Cross-Appellants,
v.
ALLEGAN GENERAL HOSPITAL, Defendant-Appellant, Cross-Appellee, and
Timothy K. Dickinson, M.D. and Allegan Medical Clinic, P.C., Defendants, and
Michigan Trial Lawyers Association and Michigan State Medical Society, Amici Curiae.

Docket Nos. 179207, 179635.

Court of Appeals of Michigan.

Submitted June 4, 1996, at Grand Rapids. Decided June 21, 1996, at 9:10 a.m. Released for Publication August 12, 1996.

Bremer, Wade, Nelson, Lohr & Corey by Barbara L. Olafsson, Grand Rapids, for Julie and Robert Morrison.

Cholette, Perkins & Buchanan by Albert J. Engel, III, Grand Rapids, for Timothy K. Dickinson, M.D., and Allegan Medical Clinic, P.C.

Smith, Haughey, Rice & Roegge by Jon D. Vander Ploeg, Grand Rapids, for Allegan General Hospital.

Sommers, Schwartz, Silver & Schwartz, P.C. by Richard D. Toth, Southfield, for Amicus Curiae, Michigan Trial Lawyers Association.

Kerr, Russell and Weber by Richard D. Weber and Joanne Geha Swanson, Detroit, for Amicus Curiae, Michigan State Medical Society.

Before O'CONNELL, P.J., and SAWYER and BANDSTRA, JJ.

O'CONNELL, Presiding Judge.

In these consolidated appeals, defendants appeal by leave granted the circuit court's order denying their respective motions for summary disposition. Defendants claim that the court erred as a matter of law in interpreting 1993 P.A. 78 contrary to its plainly stated language. We reverse and remand.

Plaintiff Julie Morrison sought prenatal care from defendant Timothy K. Dickinson, M.D., at defendant Allegan Medical Clinic, P.C., during the course of her third pregnancy. On May 21, 1992, defendant physician admitted Mrs. Morrison to defendant Allegan General Hospital to deliver the child. Plaintiffs allege that defendant physician failed to properly control the delivery and failed to maneuver the baby's head over the perineum. As a result of defendant physician's failures, Mrs. Morrison suffered a fourthdegree laceration, which defendant physician also treated unsuccessfully.

On April 28, 1994, the Morrisons' attorney wrote to each defendant, stating that the letter's purpose was to provide notice of the Morrisons' intent to file a medical malpractice claim against defendant physician, defendant clinic, and defendant hospital. Less than a month later, on May 19, 1994, the Morrisons filed their complaint, alleging medical malpractice against defendant physician, vicarious liability against defendant clinic, ostensible agency against defendant hospital, and loss of consortium against all three.

In lieu of answering the complaint, defendant physician moved for summary disposition, claiming that the Morrisons' complaint must be dismissed for failure to give 182 days' notice as required by M.C.L. § 600.2912b; M.S.A. § 27A.2912(2). Defendant hospital moved for summary disposition on identical grounds, and defendant clinic joined its codefendants' motions.

The circuit court denied defendants' motions for summary disposition, opining that 1993 P.A. 78 yielded an absurd, unjust, and clearly inconsistent result. The court reasoned that recent amendments of the law governing medical malpractice actions required the Morrisons to give 182 days' notice before filing their medical malpractice claim, yet, because of the Legislature's failure to amend all relevant statutes uniformly, failed to allow the Morrisons to take advantage of the amendment's tolling provision. The court concluded that neither the tolling provision nor the notice provision should be applied to the Morrisons' cause of action.

Defendants now appeal, challenging the circuit court's interpretation of § 2912b. We review de novo both questions of statutory interpretation and orders granting or denying motions for summary disposition. Folands Jewelry Brokers, Inc. v. City of Warren, 210 Mich.App. 304, 307, 532 N.W.2d 920 (1995); Grebner v. Clinton Twp., 216 Mich.App. 736, 550 N.W.2d 265 (1996).

Defendants first argue that the circuit court erred in interpreting M.C.L. § 600.2912b; M.S.A. § 27A.2912(2) contrary to its plainly stated requirement to provide 182 days' notice of intent to file a medical malpractice claim. The Legislature made a number of changes to the Revised Judicature Act when it enacted 1993 P.A. 78, which became effective on April 1, 1994, including three provisions that apply to this case. First, the Legislature adopted a notice provision, providing as follows:

Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person had given the health professional or health facility written notice under this section not less than 182 days before the action is commenced. [M.C.L. § 600.2912b(1); M.S.A. § 27A.2912(2)(1).]

Second, the Legislature permitted a tolling of the period of limitation during the 182-day notice period, stating that the applicable period of limitation is tolled

[i]f, 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 [M.C.L. § 600.5856(d); M.S.A. § 27A.5856(d).]

The third relevant aspect of 1993 P.A. 78—the pertinent effective dates and the chronological parameters defining to what causes of action the amendments applied—was not codified. 1993 P.A. 78, § 4 provides as follows:

(1) Section [ ] ... 5856 [referring to the tolling provision] of Act No. 236 of the Public Acts of 1961, as amended by this amendatory act, do[es] not apply to causes of action arising before October 1, 1993.

* * * * * *

(4) Section [] 2912b [referring to the notice provision] ... of Act No. 236 of the Public Acts of 1961, as amended by this amendatory act, [applies] to cases filed on or after October 1, 1993.

The Legislature did not, however, amend the statute of limitations for medical malpractice actions, which provides:

(1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the period of time prescribed by this section.

* * * * * *

(4) Except as otherwise provided in this chapter, the period of limitations is 2 years for an action charging malpractice. [M.C.L. § 600.5805; M.S.A. § 27A.5805.]

In summary, the limitation period for medical malpractice actions is two years. M.C.L. § 600.5805(4); M.S.A. § 27A.5805(4). For causes of action filed on or after October 1, 1993, a plaintiff must provide 182 days' written notice before commencing suit. 1993 P.A. 78, § 4(4), M.C.L. § 600.2912b; M.S.A. § 27A.2912(2). If a cause of action would be barred because of the 182-day notice provision, the limitation period may be tolled for 182 days after notice is given. M.C.L. § 600.5856(d); M.S.A. § 27A.5856(d). However, this tolling provision does not apply to causes of action arising before October 1, 1993. See 1993 P.A. 78, § 4(1).

Applying the statutory scheme outlined above illustrates the Morrisons' dilemma, a dilemma that stems primarily from the Legislature's consideration of the date of filing significant in 1993 P.A. 78, § 4(4), and its consideration of the date the cause of action arises as significant in 1993 P.A. 78, § 4(1). The instant plaintiffs' cause of action arose on May 21, 1992. Pursuant to the applicable two-year statute of limitations, the Morrisons were permitted to file their complaint on or before May 21, 1994. M.C.L. § 600.5805(4); M.S.A. § 27A.5805(4), M.C.L. § 600.5838a; M.S.A. § 27A.5838(1). Under M.C.L. § 600.2912b; M.S.A. § 27A.2912(2), which became effective April 1, 1994, the Morrisons were required to give 182 days' notice to defendants before filing their complaint.

The difficulty in the present case arises, however, from the fact that the tolling provision of M.C.L. § 600.5856(d); M.S.A. § 27A.5856(d) does not apply to plaintiffs. As stated above, their cause of action arose on May 21, 1992, that is, before October 1, 1993. While a tolling provision exists, M.C.L. § 600.5856(d); M.S.A. § 27A.5856(d), the tolling provision does not apply to causes of action arising before October 1, 1993, 1993 P.A. 78, § 4(1), though the notice provision does so apply. 1993 P.A. 78, § 4(4).

1993 P.A. 78 became effective on April 1, 1994, but by then the Morrisons could not possibly satisfy all the requirements of 1993 P.A. 78 without running afoul of the notice requirement of M.C.L. § 600.2912b; M.S.A. § 27A.2912(2) and the two-year limitation period of M.C.L. § 600.5805(4); M.S.A. § 27A.5805(4). Under the plain language of 1993 P.A. 78, § 4(1), the tolling provision of M.C.L. § 600.5856(d); M.S.A. § 27A.5856(d) does not apply to the instant cause of action. Consequently, the Morrisons were required to provide defendants with notice of their intent to file a malpractice claim by November 19, 1993, so as to give 182 days' notice before filing their claim on May 21, 1994. However, the Morrisons gave notice of their intent to file suit only on April 28, 1994, and filed their complaint on May 19,1994.

In short, though the Morrisons' cause of action had previously accrued, because of legislative amendment of the pertinent statutes, the Morrisons' claim, as well as the actions of all those potential plaintiffs similarly situated, was vitiated. Implementation of the notice requirement effectively abrogated the Morrisons' claim despite the fact that it had already vested.

The circuit court realized the inequity of this result, and, apparently, refused to enforce either the notice requirement or the tolling provision and its limitation. After reviewing the applicable case law, we conclude that the notice requirement should have been applied to the present cause of action, but the limitation of the tolling provision should not have been applied.

As set forth in Folands, supra, "[w]hen interpreting a statute, our goal is to ascertain and effectuate the intent of the Legislature." The Legislature is presumed to have intended the meaning it plainly expressed. Frasier v. Model Coverall Service, Inc., 182 Mich.App. 741, 744, 453 N.W.2d 301 (1990). Both the notice requirement and the tolling provisions are part of 1993 P.A. 78, and, together with M.C.L. § 600.5805; M.S.A. § 27A.5805, they address medical malpractice claims. These statutes must then be understood as having a common purpose and must be read together as one law. Feld v. Robert & Charles Beauty Salon, 174 Mich.App. 309, 317, 435 N.W.2d 474 (1989), rev'd on other grounds 435 Mich. 352, 459 N.W.2d 279 (1990). This rule's object is to effectuate the Legislature's purpose as expressed in these harmonious statutes. Jennings v. Southwood, 446 Mich. 125, 136-137, 521 N.W.2d 230 (1994).

Reading the notice provision and the tolling provision together, it is clear that the Legislature intended to toll the limitation period set forth in M.C.L. § 600.5805(4); M.S.A. § 27A.5805(4) during the pendency of the notice period. Frasier, supra, at p. 744, 453 N.W.2d 301. However, the plain language of the related statutes serves to vitiate accrued causes of action under facts such as those in the present case, because though a plaintiff's action may have accrued, the intervening notice requirement coupled with the absence of a tolling provision effectively abrogates the claim. This the Legislature may not do, whether intentionally or unintentionally.

While the Legislature possesses the authority to expressly extinguish a common-law right, Dyke v. Richard, 390 Mich. 739, 745, 213 N.W.2d 185 (1973), a statute of limitations may not be construed so as to impliedly abrogate a cause of action. Dyke, supra, at p. 746, 213 N.W.2d 185 states:

Justice Cooley described our responsibility in dealing with such statutes of limitation in Price v Hopkin, 13 Mich 318, 324 (1865):

"The general power of the legislature to pass statutes of limitation is not doubted. The time that these statutes shall allow for bringing suits is to be fixed by the legislative judgment, and where the legislature has fairly exercised its discretion, no court is at liberty to review its action, and to annul the law, because in their opinion the legislative power has been unwisely exercised. But the legislative authority is not so entirely unlimited that, under the name of a statute limiting the time within which a party shall resort to his legal remedy, all remedy whatsoever may be taken away.... It is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought [citations omitted] and a statute that fails to do this cannot possibly be sustained as a law of limitations, but would be a palpable violation of the constitutional provision that no person shall be deprived of property without due process of law."

Since "[i]t is of the essence of a law of limitation that it shall afford a reasonable time within which suit may be brought...," Price, supra, a statute which extinguishes the right to bring suit cannot be enforced as a law of limitation.

This rule of law has also been phrased as follows: "It is clear that once a cause of action accrues,—i.e., all the facts become operative and are known—it becomes a `vested right.'" In re Certified Questions, 416 Mich. 558, 573, 331 N.W.2d 456 (1982). "[R]etrospective application of a law is improper where the law takes away or impairs vested rights acquired under existing laws...." Id. at p. 572, 331 N.W.2d 456 (internal quotation marks and citation omitted).

Turning, then, to the present case, 1993 P.A. 78 plainly states that "a person shall not commence an action alleging medical malpractice... unless the person has given ... written notice under this section not less than 182 days before the action is commenced." M.C.L. § 600.2912b; M.S.A. § 27A.2912(2) (emphasis supplied). The Legislature hereby established certain procedural rules pertaining to the filing of malpractice actions, an act well within its power. See Dyke, supra, quoting Price, supra. The public act simply mandates notice before a complaint is filed. Mull v. Equitable Life Assurance Society, 444 Mich. 508, 519, 510 N.W.2d 184 (1994). The Morrisons failed to comply with this statutory mandate because they failed to provide defendants with 182 days' notice before filing their complaint. Therefore, the circuit court erred as a matter of law when it did not dismiss the Morrisons' complaint. Accordingly, we reverse the order of the circuit court denying defendants' motion for summary disposition.

However, to address the tolling provision, 1993 P.A. 78 also plainly states that the period of limitation is tolled if "a claim would be barred ... for not longer than the number of days equal to the number of days in the applicable notice period...." M.C.L. § 600.5856(d); M.S.A. § 27A.5856(d). The act's words unambiguously provide for tolling. Frasier, supra, at p. 744, 453 N.W.2d 301. Nevertheless, 1993 P.A. 78, § 4(1) states that M.C.L. § 600.5856(d); M.S.A. § 27A.5856(d), does "not apply to causes of action arising before October 1, 1993." Under the facts of the instant case, this would result in the abrogation of a vested cause of action under the guise of a procedural amendment of the pertinent statute of limitations. As made clear by our Supreme Court, Dyke, supra; Price, supra; In re Certified Questions, supra, such retrospective application is offensive to the constitutional guarantee that no person shall be deprived of property without due process of law. Therefore, 1993 P.A. 78, § 4(1) may not be enforced in cases such as the present matter where enforcement would vitiate an accrued medical malpractice claim without providing the potential plaintiff the benefit of the 182-day tolling provision.

Additionally, we would note that extent case law and this Court's interpretation of the 182-day tolling provision serve to preserve the causes of action of all plaintiffs situated similarly to the present plaintiffs. The tolling statute, M.C.L. § 600.5856; M.S.A. § 27A.5856, applies to prior suits that have not been adjudicated on the merits. Buscaino v. Rhodes, 385 Mich. 474, 482, 189 N.W.2d 202 (1971). "A dismissal without prejudice is not considered to be an adjudication on the merits, and therefore the tolling statute applies." Federal Kemper Ins. Co. v. Isaacson, 145 Mich.App. 179, 183, 377 N.W.2d 379 (1985). Thus, the present plaintiffs, as well as the many plaintiffs who find themselves in the identical situation, enjoy the balance of the 182-day tolling period remaining after suit was filed. Further, a limitation period is tolled during the pendency of an appeal. Riza v. Niagara Machine & Tool Works, Inc. 411 Mich. 915 (1981). Therefore, all plaintiffs finding themselves in the present plaintiffs' situation will be free to timely refile their suits following the dismissal of their actions.

Reversed. The circuit court is directed to enter an order granting summary disposition without prejudice in favor of defendants. Plaintiffs are free to refile their cause of action immediately, the 182-day notice period long having expired.