Opinion
SC 165399 SC 165400COA 358728 COA 358729
07-29-2024
MARY ARMIJO, Plaintiff-Appellant, v. BRONSON METHODIST HOSPITAL, BRIAN DYKSTRA, M.D., WILLIAM NICHOLS, JR., D.O., ASCENSION ALLEGAN HOSPITAL, and MARTIN FREEMAN, M.D., Defendants, and ANDREW FORSYTH, M.D., Defendant-Appellee. MARY ARMIJO, Plaintiff-Appellant, v. BRONSON METHODIST HOSPITAL, BRIAN DYKSTRA, M.D., and WILLIAM NICHOLS, JR., M.D., Defendants-Appellees, and ANDREW FORSYTH, M.D., ASCENSION ALLEGAN HOSPITAL, and MARTIN FREEMAN, M.D., Defendants.
Kalamazoo CC: 2021-000257-NH
Elizabeth T. Clement, Chief Justice, Brian K. Zahra, David F. Viviano, Richard H. Bernstein, Megan K. Cavanagh, Elizabeth M. Welch, Kyra H. Bolden, Justices
ORDER
On January 11, 2024, the Court heard oral argument on the application for leave to appeal the January 19, 2023 judgment of the Court of Appeals. On order of the Court, the application is again considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
Welch, J. (dissenting).
I respectfully dissent from this Court's order denying leave to appeal. While this Court has found Administrative Order Nos. 2020-3 and 2020-18 to be constitutional in Carter v DTN Mgt Co, ___ Mich. ____ (2024), I would have extended that holding to include application of those orders to required presuit tolling periods. As such, I would have reversed the Court of Appeals decision and remanded to the trial court for further proceedings.
I. BACKGROUND
The underlying facts in this case are not in dispute. On February 23, 2018, plaintiff, Mary Armijo, presented to the emergency department at Ascension Allegan Hospital. After examination and treatment, she was discharged and told to follow up with her primary care physician. On February 25, 2018, plaintiff's husband found her unresponsive and took her back to Ascension, which then transferred her to defendant Bronson Methodist Hospital. At Bronson Methodist Hospital, plaintiff was diagnosed and received treatments for sepsis with shock that developed into multisystem organ failure. Plaintiff was then transferred from Bronson Methodist Hospital to the University of Michigan, where she underwent multiple surgical and other medical procedures.
The parties agree that plaintiff's claim accrued on March 6, 2018, the date defendant Dr. Andrew Forsyth treated plaintiff. The limitations period for a malpractice action is two years. MCL 600.5805(8). Therefore, in the absence of tolling, the two-year statute of limitations expired on March 6, 2020. Plaintiff sent the required presuit notice of intent to sue (NOI) to defendants on February 19, 2020. MCL 600.2912b ("[A] person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced."). As provided under MCL 600.5856(c), the running of the statute of limitations is tolled during this NOI period "not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given." Thus, when plaintiff sent the NOI, the limitations period in plaintiff's suit was tolled for 182 days, and the deadline by which plaintiff had to file her complaint was extended to September 4, 2020.
Shortly after plaintiff sent the NOI to defendants, the COVID-19 pandemic struck. In response, governments across the nation took unprecedented actions to slow the spread of the virus. Michigan Governor Gretchen Whitmer entered Executive Order No. 2020-4 on March 10, 2020, which declared a state of emergency. Following that executive order, and in an effort to balance access to the courts and safety of court staff and patrons, this Court entered Administrative Order No. 2020-3, 505 Mich. cxxvii (2020) on March 23, 2020, which stated:
In light of the continuing COVID-19 pandemic and to ensure continued access to courts, the Court orders that:
For all deadlines applicable to the commencement of all civil and probate case-types, including but not limited to the deadline for the initial filing of a pleading under MCR 2.110 or a motion raising a defense or an objection to an initial pleading under MCR 2.116, and any statutory prerequisites to the filing of such a pleading or motion, any day that falls during the state of emergency declared by the Governor related to COVID-19 is not included for purposes of MCR 1.108(1).
This order is intended to extend all deadlines pertaining to case initiation and the filing of initial responsive pleadings in civil and probate matters during the state of emergency declared by the Governor related to COVID-19. Nothing in this order precludes a court from ordering an expedited response to a complaint or motion in order to hear and resolve an emergency matter requiring immediate attention. We continue to encourage courts to conduct hearings remotely using two-way interactive video technology or other remote participation tools whenever possible.
This order in no way prohibits or restricts a litigant from commencing a proceeding whenever the litigant chooses. Courts must have a system in place to allow filings without face-to-face contact to ensure that routine matters, such as filing of estates in probate court and appointment of a personal representative in a decedent's estate, may occur without unnecessary delay and be disposed via electronic or other means. [Available at <https://perma.cc/Q97F-F5KJ>.]
On April 22, 2020, Governor Whitmer issued Executive Order 2020-58. While similar to AO 2020-3, the Governor's order included the following italicized language:
1. Consistent with Michigan Supreme Court Administrative Order No. 2020-3, all deadlines applicable to the commencement of all civil and probate actions and proceedings, including but not limited to any deadline for the filing of an initial pleading and any statutory notice provision or other prerequisite related to the deadline for filing of such a pleading, are suspended as of March 10, 2020 and shall be tolled until the end of the declared states of disaster and emergency.
2. Consistent with Michigan Supreme Court Administrative Order No. 2020-3, this order does not prohibit or restrict a litigant from commencing an action or proceeding whenever the litigant may choose, nor does it suspend or toll any time period that must elapse before the commencement of an action or proceeding.
3. This order is effective immediately. [Italics added.]
On May 1, 2020, after the Governor issued Executive Order 2020-58, this Court amended Administrative Order No. 2020-3 to harmonize it with that executive order. Amended Administrative Order No. 2020-3 stated the following (the language added by the amendment is underlined):
In light of the continuing COVID-19 pandemic and to ensure continued access to courts, the Court orders that:
For all deadlines applicable to the commencement of all civil and probate case-types, including but not limited to the deadline for the initial filing of a pleading under MCR 2.110 or a motion raising a defense or an objection to an initial pleading under MCR 2.116, and any statutory prerequisites to the filing of such a pleading or motion, any day that falls during the state of emergency declared by the Governor related to COVID-19 is not included for purposes of MCR 1.108(1).
This order is intended to extend all deadlines pertaining to case initiation and the filing of initial responsive pleadings in civil and probate matters during the state of emergency declared by the Governor related to COVID-19. Nothing in this order precludes a court from ordering an expedited response to a complaint or motion in order to hear and resolve an emergency matter requiring immediate attention. We continue to encourage courts to conduct hearings remotely using two-way interactive video technology or other remote participation tools whenever possible.
This order in no way prohibits or restricts a litigant from commencing a proceeding whenever the litigant chooses, nor does it suspend or toll any time period that must elapse before the commencement of an action or proceeding. Courts must have a system in place to allow filings without face-to-face contact to ensure that routine matters, such as filing of estates in probate court and appointment of a personal representative in a decedent's estate, may occur without unnecessary delay and be disposed via electronic or other means. [Amended Administrative Order No. 2020-3, 505 Mich. at cxliv-cxlv (2020), available at <https://perma.cc/W22B-HCCL>.]
On June 12, 2020, Governor Whitmer rescinded Executive Order 2020-58. See Executive Order 2020-122. That same day, this Court entered Administrative Order No. 2020-18, 505 Mich. clviii (2020), which rescinded the Court's previous administrative order:
In Administrative Order No. 2020-3, the Supreme Court issued an order excluding any days that fall during the State of Emergency declared by
the Governor related to COVID-19 for purposes of determining the deadline applicable to the commencement of all civil probable case types under MCR 1.108(1). Effective Saturday, June 20, 2020, that administrative order is rescinded, and the computation of time for those filings shall resume. For time periods that started before Administrative Order No. 2020-3 took effect, the filers shall have the same number of days to submit their filings on June 20, 2020, as they had when the exclusion went into effect on March 23, 2020. For filings with time periods that did not begin to run because of the exclusion period, the filers shall have the full periods for filing beginning on June 20, 2020. [Emphasis added; available at <https://perma.cc/3RGY-P5MN>.]
Based upon the orders and reading them collectively, plaintiff filed her complaint on December 14, 2020. Specifically, plaintiff points to Administrative Order No. 2020-18 to support her argument that any litigant would have the same amount of time to file a case on June 20, 2020, as they had on March 10, 2020.
The staff comment to Administrative Order No. 2020-18 states:
Note that although the order regarding computation of days entered on March 23, 2020, it excluded any day that fell during the State of Emergency declared by the Governor related to COVID-19, which order was issued on March 10, 2020. Thus, the practical effect of Administrative Order No. 2020-3 was to enable filers to exclude days beginning March 10, 2020. This timing is consistent with the executive orders entered by the Governor regarding the tolling of statutes of limitation. [AO 2020-18, 505 Mich. at clviii-clix.]
Defendants moved for summary disposition under MCR 2.116(C)(7), arguing that plaintiff's complaint was untimely, that the judiciary did not have the authority to toll the running of the statute of limitations through administrative orders regarding COVID-19, and that only deadlines expiring during the state of emergency were affected. As relating to plaintiff's case specifically, defendants argued that the administrative orders did not apply because plaintiff's February 19, 2020 NOI was filed prior to the COVID-19 emergency and thus the tolling period started before the emergency. Defendants argue that it makes no sense to toll the case twice (once when the initial NOI was filed and again when the COVID-19 orders tolled deadlines). The trial court denied defendants' motion for summary disposition, ruling that plaintiff was correct that her lawsuit was tolled during the COVID-19 emergency.
Defendants appealed, and on January 19, 2023, the Court of Appeals issued a published opinion that reversed and remanded the case to the trial court for entry of summary disposition in defendants' favor pursuant to MCR 2.116(C)(7). The Court of Appeals held that this Court's administrative orders did not toll the NOI period because "[Amended Administrative Order No. 2020-3's] clarification plainly indicated that a statutory period, such as the 182-day notice period specified in MCL 600.2912b(1), which had to elapse before the commencement of a medical malpractice action, continued to run during the state of emergency." Armijo v Bronson Methodist Hosp, 345 Mich.App. 254, 265 (2023). Therefore, under Amended Administrative Order No. 2020-3, the 182-day notice period, which began on February 19, 2020, was not suspended or tolled, and plaintiff's complaint was time-barred. Id. at 266-267.
II. ANALYSIS
I fear that the Court of Appeals and this Court have forgotten the realities experienced by people in this state and the world during the early months of the COVID-19 pandemic, as well as the reason we issued the administrative orders at issue in this case. "During the first four months of the COVID-19 emergency, i.e., the period during which the relevant emergency orders were in effect, approximately 125,000 Americans died of the disease and hospitals were overflowing with critical care patients. Little was understood about the nature of the disease, its treatment or its mechanism of spread." Toman v McDaniels, ___ Mich.App. ___, ___ (2023) (Docket No. 361655), slip op at 1 (Borrello, J., dissenting). Courts were scrambling to move to remote operations and figure out systems for litigants to file documents when staff was severely pared down as people navigated illness and COVID exposure. While our courts shifted incredibly quickly to remote proceedings and created safe ways for people to access the courts, the first few weeks were chaotic with many unknown variables. This Court responded quickly with several orders-all issued unanimously-designed to ensure that litigation could still proceed but that the people in our communities would also be safe at a time when nonessential workers were required to shelter in place.
At issue in this case, Administrative Order No. 2020-3 suspended all deadlines "applicable to the commencement of all civil" actions including "any statutory prerequisites to the filing" of a complaint. There is no question that the presuit notice requirement set forth in § 2912b constitutes a statutory prerequisite to the filing of a medical malpractice complaint. Medical malpractice actions are in fact unique in that they have a statutory prerequisite-an NOI-that other civil lawsuits do not require. Thus, the original language in Administrative Order No. 2020-3 unquestionably applied to the mandatory NOI period. The confusion for parties comes from the subsequent amendment issued by the Court.
The Court of Appeals concluded that the language of Amended Administrative Order No. 2020-3 plainly indicated that the NOI period was not tolled during the state of emergency because Administrative Order No. 2020-3 stated that time periods that had to lapse prior to filing a suit were not suspended. I disagree. This Court must consider the administrative order in its entirety in order to produce a harmonious result. See Hannay v Dep't of Transp, 497 Mich. 45, 57 (2014). In my view, the Court of Appeals cherry-picked a single line without looking at the amendment as a whole, and more importantly, without looking at the series of orders and their impact. Less than a month after this Court issued the first administrative order, Governor Whitmer issued Executive Order 2020-58. Just days later, this Court then amended Administrative Order No. 2020-3. This amendment retained the language that Administrative Order No. 2020-3 suspended all deadlines "applicable to the commencement of all civil" actions including "any statutory prerequisites to the filing" of a complaint. However, it added a line stating that it did not suspend any time period "that must elapse before the commencement of an action or proceeding."
The Court of Appeals' interpretation of Amended Administrative Order No. 2020-3 is unworkable as applied to NOIs. In my view, the language that existed in both Administrative Order No. 2020-3 and Amended Administrative Order No. 2020-3 suspending all deadlines as to "any statutory prerequisites for filing a complaint" was intended to apply precisely to NOIs. It is nonsensical to then negate that language by reading the amendment's language (as to time periods that elapse before an action commences not being tolled) as applying to NOIs. Furthermore, when rescinding Administrative Order No. 2020-3, this Court included language in Administrative Order No. 2020-18 specifically stating that litigants would have the same amount of time to file on June 20, 2020, that they had on March 23, 2020. Thus, as of June 20, 2020, plaintiff had the same number of days remaining to file her lawsuit as she had on March 10, 2020.
See Staff Comment to AO 2020-18, 505 Mich. at clviii-clix.
For all these reasons, I find it reasonable that plaintiff's counsel and other attorneys interpreting the ever-changing pandemic orders read these orders together and believed that they applied to NOI presuit periods. Thus, when plaintiff's attorney calculated what he presumed to be the new statute of limitations on the basis of this Court's two COVID-19 related administrative orders, it was not unreasonable to believe that plaintiff had 178 days after June 20, 2020, to timely file the complaint-giving plaintiff until December 15, 2020, to file her lawsuit. Because I believe plaintiff reasonably and timely filed the complaint on December 14, 2020, I would reverse the Court of Appeals and therefore respectfully dissent from this Court's denial of leave.