Mary Armijo v. Bronson Methodist Hospital ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
MARY ARMIJO, FOR PUBLICATION
January 19, 2023
Plaintiff-Appellee, 9:15 a.m.
v No. 358728
Kalamazoo Circuit Court
BRONSON METHODIST HOSPITAL, BRIAN LC No. 2021-000257-NH
DYKSTRA, M.D., WILLIAM NICHOLS, JR., D.O.,
ASCENSION ALLEGAN HOSPITAL, and
MARTIN FREEMAN, M.D.,
Defendants,
and
ANDREW FORSYTH, M.D.,
Defendant-Appellant.
MARY ARMIJO,
Plaintiff-Appellee,
v No. 358729
Kalamazoo Circuit Court
BRONSON METHODIST HOSPITAL, BRIAN LC No. 2021-000257-NH
DYKSTRA, M.D., and WILLIAM NICHOLS, JR.,
D.O.,
Defendants-Appellants,
and
ANDREW FORSYTH, M.D., ASCENSION
ALLEGAN HOSPITAL, and MARTIN FREEMAN,
M.D.,
Defendants.
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Before: RIORDAN, P.J., and MARKEY and REDFORD, JJ.
REDFORD, J.
Defendants, Andrew Forsyth, M.D., Bronson Methodist Hospital, Brian Dykstra, M.D.,
and William Nichols, Jr., D.O., appeal by interlocutory leave granted1 in this consolidated appeal2
the trial court’s order denying their motions to dismiss this matter pursuant to MCR 2.116(C)(7).
Because we conclude Michigan Supreme Court Administrative Order Nos. 2020-3, 2020-3
(amended) and 2020-18 do not toll any period applicable to this case, we reverse and remand to
the trial court to grant summary disposition to defendants pursuant to MCR 2.116(c)(10).
I. BACKGROUND
For the purposes of this appeal, the facts about the underlying medical care that plaintiff
received from defendants are undisputed. On February 23, 2018, plaintiff presented to the
Emergency Department at Ascension Allegan Hospital with congestion, cough, headache, sore
throat, and fever. After evaluation, blood tests, and administration of a pain killer and
corticosteroid, the hospital discharged her with instruction to follow up with her primary care
physician. On February 25, 2018, plaintiff’s husband found her unresponsive and took her back
to the hospital emergency which transferred her to Bronson Methodist Hospital where she was
diagnosed and received various treatments for sepsis with shock that developed into multisystem
organ failure.3 Bronson Methodist Hospital transferred plaintiff to the University of Michigan
where she underwent multiple surgical and other medical procedures.
On February 19, 2020, as required under MCL 600.2912b, plaintiff served defendants her
notice of intent to file her medical malpractice lawsuit. The parties agree that plaintiff’s medical
malpractice claim accrued on March 6, 2018, and that plaintiff gave notice 16 days before the
expiration of the two-year statutory limitations period for malpractice actions provided under MCL
600.5805(8). By giving notice, the limitations period was tolled for 182 days as provided under
MCL 600.5856(c). The parties agree that by statute plaintiff had to file her complaint by
September 4, 2020.
On March 10, 2020, after plaintiff filed her notice of intent, Michigan Governor Gretchen
Whitmer entered Executive Order 2020-4, which declared a state of emergency related to the
COVID-19 pandemic. On March 23, 2020, our Supreme Court entered Administrative Order
No. 2020-3, 505 Mich lxxxvi (2020), which stated:
1
Armijo v Bronson Methodist Hosp, unpublished order of the Court of Appeals, entered
February 11, 2022 (Docket No. 358728).
2
Armijo v Bronson Methodist Hosp, unpublished order of the Court of Appeals, entered
February 11, 2022 (Docket No. 358728).
3
Dr. Forsyth provided medical services on March 6, 2018. Doctors Dykstra and Nichols provided
medical services on March 9, 2018.
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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.
On May 1, 2020, our Supreme Court entered Amended Administrative Order No. 2020-3,
505 Mich lxxiv (2020), which provided:
On order of the Court, the following amendment of Administrative Order
No. 2020-3 is adopted, effective immediately.
[Additions to the text are indicated in underlining]
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
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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.
On June 12, 2020, our Supreme Court entered Administrative Order No. 2020-18, 505
Mich lxxxviii (2020), rescinding its previous administrative order as follows:
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. [4]
On December 14, 2020, plaintiff filed her complaint in the instant case. In July 2021,
defendants moved for summary disposition pursuant to MCR 2.116(C)(7). Defendants alleged
that the deadline for plaintiff to file her complaint elapsed September 4, 2020, and therefore,
plaintiff’s complaint was time-barred. Defendants argued that the judiciary did not have the
authority to issue the administrative orders regarding COVID that tolled statutory limitations
periods. Defendants also argued that, to the extent that the judiciary may have that authority, the
authority only extended to the modification of deadlines that occurred during the state of
emergency. Defendants further argued that, if the administrative orders were valid, they only
4
The staff comment to the order stated:
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 lxxxviii-lxxxvix.]
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applied to deadlines that occurred during the state of emergency, and did not apply to the deadlines
in the instant case. Finally, defendants argued that the administrative orders did not apply to this
case because plaintiff’s notice of intent commenced a tolling period before the state of emergency,
so it did not make sense to toll the case twice at once.
Plaintiff opposed defendants’ motions for summary disposition by arguing that the
Supreme Court had the authority to issue the administrative orders and that defendants incorrectly
interpreted the administrative orders. Defendants replied, arguing that plaintiff’s interpretation of
the Amended AO 2020-3 illogically contradicted the plain language of the amendment.
On September 2, 2021, the trial court held a hearing on defendants’ motions for summary
disposition at which the parties reiterated the points made in their briefs. The trial court agreed
with plaintiff’s arguments, and therefore, denied defendants’ motions for summary disposition.
The trial court entered an order denying defendants’ motions for summary disposition. Defendants
now appeal.
II. STANDARD OF REVIEW
We review de novo a circuit court’s summary disposition decision. Carmichael v Henry
Ford Hosp, 276 Mich App 622, 624; 742 NW2d 387 (2007). “Whether a period of limitations
applies in particular circumstances constitutes a legal question that this Court also considers de
novo.” Id. (citation omitted). “Under MCR 2.116(C)(7), summary disposition is proper when a
claim is barred by the statute of limitations.” Id. “In determining whether summary disposition
was properly granted under MCR 2.116(C)(7), this Court considers all documentary evidence
submitted by the parties, accepting as true the contents of the complaint unless affidavits or other
appropriate documents specifically contradict them.” Id. (quotation marks, alteration, and citation
omitted). “Questions of statutory interpretation, construction, and application are reviewed de
novo.” Johnson v Johnson, 329 Mich App 110, 118; 940 NW2d 807 (2019) (citation omitted).
III. ANALYSIS
The period of limitations for medical malpractice actions is controlled by statute. Miller v
Mercy Mem Hosp Corp, 466 Mich 196, 199; 644 NW2d 730 (2002). The limitations period for a
malpractice action is two years. MCL 600.5805(8). A medical malpractice claim “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.” MCL 600.5838a(1). A
medical malpractice action that is not commenced within the statutorily prescribed time limits is
time-barred. MCL 600.5838a(2).
MCL 600.2912b(1) provides:
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 has given the health professional or health facility written
notice under this section not less than 182 days before the action is commenced.
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MCL 600.5856(c) provides:
The statutes of limitations or repose are tolled . . . [a]t the time notice is
given in compliance with the applicable notice period under [MCL 600.]2912b, if
during that period a claim would be barred by the statute of limitations or repose;
but in this case, the statute is tolled 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.
Our Supreme Court issued the aforementioned administrative orders in relation to the state
of emergency Governor Whitmer declared because of the COVID-19 pandemic. Defendants assert
four grounds for reversing the trial court’s denial of their motion: (1) the judiciary lacks the
authority to modify a legislatively enacted statute of limitations; (2) assuming the judiciary has
emergency authority, the plain language of the orders applied only to deadlines that occurred
during the state of emergency; (3) to the extent that the language of the tolling orders is interpreted
to apply outside of a state of emergency, even emergency powers do not give the judiciary the
power to change a statutory deadline that fell outside of the state of emergency; and (4) even if the
COVID-19 tolling orders are interpreted as modifying deadlines outside of the statute of
limitations, they had no impact on this case because COVID-19 tolling overlapped entirely with
tolling already provided by plaintiff’s service of her notice of intent, and no basis existed to allow
double tolling, which in essence permitted plaintiff to save up and apply COVID-19 tolling to
extend the notice of intent tolling period approximately six months after COVID-19 tolling ended,
in other words, tolling of the tolling period.
Because we find the plain language of our Supreme Court’s administrative orders
dispositive, we decline to address the other issues raised by defendants. We “will not unnecessarily
decide constitutional issues, People v Riley, 465 Mich 442, 447; 636 NW2d 514 (2001), and it is
an undisputed principle of judicial review that questions of constitutionality should not be decided
if the case may be disposed of on other grounds. MacLean v Mich State Bd of Control for
Vocational Ed, 294 Mich 45, 50; 292 NW 662 (1940).” J & J Const Co v Bricklayers and Allied
Craftsmen, Local 1, 468 Mich 722, 734; 664 NW2d 728 (2003). As a result, we do not address
for purposes of this appeal whether our Supreme Court had authority to enter the administrative
orders at issue in this case.
In Administrative Order No. 2020-3, 505 Mich lxxxvi (2020), our Supreme Court stated
that it “intended to extend all deadlines pertaining to case initiation . . . in civil . . . matters during
the state of emergency declared by the Governor related to COVID-19” but did not prohibit or
restrict a litigant from commencing an action. Then, in Amended Administrative Order No. 2020-
3, 505 Mich lxxiv (2020), our Supreme Court in relevant part stated:
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. [Emphasis
added.]
The language of the initial administrative order expressed our Supreme Court’s intent to
extend statutory deadlines for filing civil matters during the state of emergency. In its amended
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order, it again stated it “ . . . intended to extend all deadlines pertaining to case initiation . . . during
the state of emergency . . .” It also added language, however, and specifically clarified that its
order did not suspend or toll any time period that must elapse before the commencement of an
action. The amended administrative order’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.
The principles that apply to statutory construction apply equally to our interpretation of
court rules. Green v Ziegelman, 282 Mich App 292, 301; 767 NW2d 660 (2009). Our goal in
interpreting a court rule is to give effect to the intent of the Supreme Court, the drafter of the rules.
Vyletel-Rivard v Rivard, 286 Mich App 13, 21; 777 NW2d 722 (2009). Because the administrative
orders were promulgated by our Supreme Court, as are the court rules, similar rules of construction
should apply. The first step in interpreting an administrative order requires analyzing the language
used because the words contained therein are the most reliable evidence of the drafters’ intent.
Green, 282 Mich App at 301. We must consider the administrative order in its entirety in order to
produce a harmonious whole. Henry v Dow Chem Co, 484 Mich 483, 495; 772 NW2d 301 (2009).
If the administrative order’s language is plain and unambiguous, then judicial construction is not
permitted and it must be applied as written. Vyletel-Rivard, 286 Mich App at 22.
In this case, the parties do not dispute that plaintiff’s medical malpractice claims against
these defendants accrued on March 6, 2018. Plaintiff gave defendants notice of her intent to file a
medical malpractice action on February 19, 2020, as required under MCL 600.2912b(1). The 182-
day notice period commenced on that date. Under Amended Administrative Order No. 2020-3,
505 Mich lxxiv (2020), that period was not suspended or tolled and continued to run.
Because Amended Administrative Order No. 2020-3, 505 Mich lxxiv (2020) clarified that
the notice period continued to run and because the administrative orders by their language only
applied to deadlines which took place during the state of emergency, August 19, 2020, was the
earliest date on which plaintiff could commence her medical malpractice action. Under MCL
600.5856(c), because plaintiff served notice of her intent to file her medical malpractice action,
the two-year statutory limitations period specified under MCL 600.5805(8) which would have
elapsed during the notice period was tolled, such that she had 16 days remaining of the statutory
limitations period in which to commence her malpractice action. That gave plaintiff until
September 4, 2020, to commence her malpractice action against defendants. The record indicates
that plaintiff filed her lawsuit on December 14, 2020, long after the expiration of the statutory
limitations period. Accordingly, her claims against defendants were time-barred. The trial court,
therefore, reversibly erred by not granting defendants motions for summary disposition under
MCR 2.116(C)(7).
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ James Robert Redford
/s/ Michael J. Riordan
/s/ Jane E. Markey
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