Vega v. Lakeland Hospitals at Niles and St Joseph, Inc , 267 Mich. App. 565 ( 2005 )

705 N.W.2d 389 (2005) 267 Mich. App. 565

Jodie VEGA, Conservator of the Estate of Jeffrey Hurley, a Minor, Plaintiff-Appellant,
v.
LAKELAND HOSPITALS AT NILES AND ST. JOSEPH, INC., St. Joseph Medical Association, P.C. and Beth Vanderah and Michael Speers, Co-Personal Representatives of the Estate of David Alan Speers, M.D., Defendants-Appellees.

Docket No. 253739.

Court of Appeals of Michigan.

Submitted June 7, 2005, at Grand Rapids. Decided July 28, 2005, at 9:00 a.m. Released for Publication October 26, 2005.

Charfoos & Christensen, P.C. (by David R. Parker), Detroit and Michael D. Marrs, P.C. (by Michael D. Marrs), St. Joseph, for Jodie Vega.

Smith Haughey Rice & Roegge (by Jon D. Vander Ploeg and William L. Henn), Grand Rapids, for Lakeland Hospitals at Niles and St. Joseph, Inc.

Fraser Trebilcock Davis & Dunlap, P.C. (by Graham K. Crabtree), Lansing, for Beth Vanderah, Michael Speers, and St. Joseph Medical Association, P.C.

Before: HOEKSTRA, P.J. and JANSEN and KIRSTEN FRANK KELLY, JJ.

KIRSTEN FRANK KELLY, J.

In this medical malpractice action, plaintiff appeals as of right the trial court's order granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(7) on the basis that the statutory period of limitations expired before plaintiff filed her complaint. We affirm, holding that M.C.L. § 600.5851(1) and (7) unambiguously exclude medical malpractice claimants from the disability grace period and this exclusion does not violate equal protection guarantees.

I. Facts

It is undisputed that plaintiff's medical malpractice claim accrued on December 13, 1999, when, at Lakeland Medical Center-Niles, David Alan Speers, M.D., examined and allegedly misdiagnosed eleven-year-old Jeffrey Hurley. According to plaintiff's complaint, Speers diagnosed Jeffrey with gastritis influenza, but two days later, doctors at another hospital determined that Jeffrey suffered from viral encephalitis. Plaintiff alleged that, "at the time of his discharge, [Jeffrey] was still suffering from severe, permanent mental impairment due to the effects of the delayed and undiagnosed viral encephalitis."^[1]

It is also undisputed that plaintiff sent a notice of intent to defendants on November 8, 2001, at which time, thirty-four days remained on the statutory period of limitations. The statutory period of limitations was tolled for 182 days from November 8, 2001, to May 9, 2002. With thirty-four days remaining in the period of limitations, plaintiff had until June 12, 2002, to file her complaint. Plaintiff did not file her complaint, however, until December 11, 2002.

Defendants filed motions for summary disposition arguing that the two-year statutory period of limitations expired before plaintiff filed her complaint. In response, plaintiff did not dispute that she filed her complaint after the two-year statutory period of limitations expired, but argued that because Jeffrey was insane, pursuant to M.C.L. § 600.5851(2), the statutory period of limitations was extended pursuant to the statutory grace period in M.C.L. § 600.5851(1). Plaintiff also argued that if M.C.L. § 600.5851(7) were applicable, it violates constitutional equal protection guarantees. Defendants replied that, pursuant to M.C.L. § 600.5851(7), Jeffrey had reached his eighth birthday at the time his claim accrued and, therefore, he was subject to the period of limitations in M.C.L. § 600.5838a, which, by reference to M.C.L. § 600.5805(6), required the action to be filed within two years from the cause of action accruing. Defendants also countered that M.C.L. § 600.5851(7) does not violate equal protection guarantees because its provisions are rationally related to a legitimate governmental interest. The trial court granted defendants' motion.

II. Standards of Review

This Court reviews de novo a trial court's ruling on a motion for summary disposition. Glancy v. City of Roseville, 457 Mich. 580, 583, 577 N.W.2d 897 (1998). This appeal also requires statutory interpretation.

Statutory interpretation is a question of law calling for review de novo. Michigan Basic Property Ins. Ass'n v. Ware, 230 Mich.App. 44, 48, 583 N.W.2d 240 (1998). "The primary purpose of statutory interpretation is to ascertain and give effect to the intent of the Legislature." Id. at 49, 583 N.W.2d 240. Where the statutory language is clear and unambiguous, a court must apply it as written. Howard v. Clinton Charter Twp., 230 Mich.App. 692, 695, 584 N.W.2d 644 (1998). However, if the wording is susceptible to more than one reasonable interpretation, judicial construction is appropriate. Id. [Casey v. Henry Ford Health Sys., 235 Mich.App. 449, 450, 597 N.W.2d 840 (1999).]

This Court also reviews de novo constitutional issues. Kuhn v. Secretary of State, 228 Mich.App. 319, 324, 579 N.W.2d 101 (1998).

III. Statutory Interpretation

Plaintiff contends that the trial court erred in granting defendants' motion for summary disposition because, even though the two-year statutory period of limitations^[2] expired before she filed her complaint, M.C.L. § 600.5851(1) allowed her to file her claim when she did because Jeffrey was insane at the time the cause of action accrued. The issue presented to us is whether the disability grace period in M.C.L. § 600.5851(1) applies to medical malpractice claimants. Although our Supreme Court and this Court have addressed what constitutes insanity for the purposes of M.C.L. § 600.5851(1) within the context of medical malpractice claims, neither court has addressed the issue before us now.

In construing a statute, this Court "``must give effect to every word, phrase, and clause in [the] statute and avoid an interpretation that would render any part of the statute surplusage or nugatory.'" Jenkins v. Patel, 471 Mich. 158, 167, 684 N.W.2d 346 (2004), quoting State Farm Fire & Cas. Co. v. Old Republic Ins. Co., 466 Mich. 142, 146, 644 N.W.2d 715 (2002). "``[T]he meaning of the Legislature is to be found in the terms and arrangement of the statute without straining or refinement, and the expressions are to be taken in their natural and ordinary sense.'" Casey, supra at 452-453, 597 N.W.2d 840, quoting Gross v. Gen. Motors Corp., 448 Mich. 147, 160, 528 N.W.2d 707 (1995). Our task is to give effect to a statute's provisions while reading them to harmonize with each other. Casey, supra at 452, 597 N.W.2d 840. Further, when "a statute contains a general provision and a specific provision, the specific provision controls." Gebhardt v. O'Rourke, 444 Mich. 535, 542-543, 510 N.W.2d 900 (1994). Additionally, a more recently enacted statute has precedence over an older statute. Travelers Ins. v. U-Haul of Michigan, Inc., 235 Mich.App. 273, 280, 597 N.W.2d 235 (1999). "This rule is particularly persuasive when one statute is both the more specific and the more recent." Id.

In addition to these basic principles, we keep in mind that the wisdom of a statute is for the Legislature to determine and that the law must be enforced as written. Smith v. Cliffs on the Bay Condo. Ass'n, 463 Mich. 420, 430, 617 N.W.2d 536 (2000); In re Worker's Compensation Lien, 231 Mich.App. 556, 562-563, 591 N.W.2d 221 (1998). This Court "may not inquire into the knowledge, motives, or methods of the Legislature, and may not impose a construction on a statute based on a policy decision different from that chosen by the Legislature." Fowler v. Doan, 261 Mich.App. 595, 599, 683 N.W.2d 682 (2004) (citations omitted).

Applying these principles, we conclude that M.C.L. § 600.5851(1), read together with M.C.L. § 600.5851(7),^[3] unambiguously excludes medical malpractice claimants from the disability grace period. M.C.L. § 600.5851(1) provides:

Except as otherwise provided in subsections (7) and (8), if the person first entitled to make an entry or bring an action under this act is under 18 years old or insane at the time the claim accrues, the person or those claiming under the person have 1 year after the disability is removed through death or otherwise, to make the entry or bring the action although the period of limitations has run. This section does not lessen the time provided for in section 5852. [Emphasis added.]

M.C.L. § 600.5851(7) provides:

Except as otherwise provided in subsection (8), if, at the time a claim alleging medical malpractice accrues to a person under section 5838a the person has not reached his or her eight birthday, a person shall not bring an action based on the claim unless the action is commenced on or before the person's tenth birthday or within the period of limitations set forth in section 5838a, whichever is later. If, at the time a claim alleging medical malpractice accrues to a person under section 5838a, the person has reached his or her eight birthday, he or she is subject to the period of limitations set forth in section 5838a.

M.C.L. § 600.5851(1) begins with the phrase: "Except as otherwise provided in subsections (7) and (8). . . ." There is nothing ambiguous about this phrase. An everyday word familiar to most English-speaking people, "except" is not defined by statute, but is defined in the dictionary as "With the exclusion of. . . ." The American Heritage Dictionary, (2d college ed, 1985). Thus, the circumstances described in subsections 7 and 8 are excepted, or excluded, from the provisions of subsection 1. Further, subsections 1 and 7 do not conflict or, when read together, cause any ambiguity. M.C.L. § 600.5851(1) applies "if the person first entitled to make an entry or bring an action under this act is under 18 years of age or insane at the time the claim accrues. . . ." (Emphasis added.) "[T]his act" is the RJA. Subsection 7 specifically applies to "a claim alleging medical malpractice accru[ing] to a person under section 5838a. . . ." Thus, subsection 1 applies to all claims (except medical malpractice claims) arising under the RJA and subsection 7 applies specifically to medical malpractice claims. Further, subsection 7 was enacted more recently than subsection 1, which was found in 1948 CL 600.5851.^[4] Subsection 7, on the other hand, was added by 1986 P.A. 178. Therefore, because subsection 1 clearly states: "Except as otherwise provided in subsections 7 and 8" and because subsection 7 is both more specific to medical malpractice claimants and more recently enacted, we conclude that medical malpractice claimants are excluded from the disability grace period set forth in subsection 1.

In this case, plaintiff does not dispute that she filed her complaint after the two-year statutory period of limitations expired. Because plaintiff is a medical malpractice claimant, M.C.L. § 600.5851(1) and (7) exclude her from the disability grace period. Therefore, the trial court did not err in granting defendants' motion for summary disposition.

IV. Equal Protection

Plaintiff also contends that this application of M.C.L. § 600.5851(7) is unconstitutional because it violates equal protection guarantees. Specifically, plaintiff asserts that "it subjects certain minors to a shorter statute of limitations than minors in other actions, and than an adult when the claimant is insane. . . ." Following this Court's reasoning in Bissell v. Kommareddi, 202 Mich.App. 578, 579, 509 N.W.2d 542 (1993), we hold that the plain language of M.C.L. § 600.5851(7) does not violate equal protection guarantees.

First, M.C.L. § 600.5851(1) and (7), read together, exclude both minor and adult medical malpractice claimants from the disability grace period. Thus, all medical malpractice claimants are treated equally in that they are all excluded from the disability grace period in M.C.L. § 600.5851(1).

Second, although M.C.L. § 600.5851(1) and (7), read together, treat medical malpractice claimants differently than other claimants, the provisions do not violate equal protection guarantees. In Bissell, this Court addressed whether M.C.L. § 600.5851(7) violates equal protection when "it creates an unreasonable and arbitrary distinction between minors with tort claims based on medical malpractice and minors with tort claims based on other theories of recovery." Bissell, supra at 579, 509 N.W.2d 542. In Bissell, supra at 579-580, 509 N.W.2d 542, the plaintiff sought application of the grace period for minority disability pursuant to M.C.L. § 600.5851(1). In determining the purpose of M.C.L. § 600.5851(7) under an equal protection analysis, this Court concluded:

Section 5851[(7)^[5]] is part of the Tort Reform Act of 1986 and was ostensibly enacted to eliminate the "long tail" that arises when a minor is allowed to pursue a cause of action that may have accrued as much as eighteen years earlier. Clearly, the object of the challenged legislation was to limit the period of time during which health-care providers would be at risk from malpractice suits. [Bissell, supra at 580-581, 509 N.W.2d 542.]

This Court also determined that the classifications in the statute bore a rational relation to this purpose. Id. at 581, 509 N.W.2d 542.

Here, plaintiff raises the same issue addressed in Bissell, although she seeks application of the grace period for insanity disability in M.C.L. § 600.5851(1). We find the reasoning of Bissell persuasive. Accordingly, we adopt the Bissell analysis and extend it to the insanity disability and hold that M.C.L. § 600.5851(1) and (7) do not violate equal protection guarantees by excluding medical malpractice claimants from the disability grace period.

Affirmed.

HOEKSTRA, P.J., concurred.

JANSEN, J. (dissenting).

I respectfully dissent. I would find that the trial court erred in granting defendants' motion for summary disposition pursuant to MCR 2.116(C)(7) because M.C.L. § 600.5851(7) does not limit the saving provision of M.C.L. § 600.5851(1) with regard to an insane medical malpractice claimant whose claim accrued after he reached his eighth birthday. Thus, I would reverse and remand for further proceedings.

The question in the present case is whether an insane person in a medical malpractice action who has reached his or her eighth birthday is excluded from the protection of the insanity saving clause under M.C.L. § 600.5851(1). I would find that M.C.L. § 600.5851(7) does not act as a limitation on plaintiff's ability to invoke the general saving provision in the present case.

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." M.C.L. § 600.5838a(1). As a general rule, a medical malpractice action may not be initiated more than two years after accrual of the claim. M.C.L. § 600.5805(6). But plaintiff argues that because Jeffrey Hurley was insane, pursuant to M.C.L. § 600.5851(2),^[1] there was additional time to bring the claim beyond the two-year limitation. M.C.L. § 600.5851(1).

The Revised Judicature Act (RJA) contains a general saving or "grace period" provision at M.C.L. § 600.5851(1), which provides:

Except as otherwise provided in subsections (7) and (8), if the person first entitled to make an entry or bring an action under this act is under 18 years old or is insane at the time the claim accrues, the person or those claiming under the person shall have one year after the disability is removed through death or otherwise to make the entry or bring the action although the period of limitations has run. This section does not lessen the time provided for in section 5852.

An exception to the general saving provisions in subsection 7 provides as follows:

Except as otherwise provided in subsection (8),[^[2]] if, at the time a claim alleging medical malpractice accrues to a person under section 5838a the person has not reached his or her eighth birthday, a person shall not bring an action based on the claim unless the action is commenced on or before the person's tenth birthday or within the period of limitations set forth in section 5838a, whichever is later. If, at the time a claim alleging medical malpractice accrues to a person under section 5838a, the person has reached his or her eighth birthday, he or she is subject to the period of limitations set forth in section 5838a. [Emphasis added.]

It is important to note that M.C.L. § 600.5851(1) is not necessarily a tolling provision, but allows disabled plaintiffs an additional and separate protection from the various statutes of limitations under the RJA. Honig v. Liddy, 199 Mich.App. 1, 4-5, 500 N.W.2d 745 (1993). Consistently with this characterization, Michigan courts have long held that regardless of whether the statute of limitations period has expired on a claim under the RJA, M.C.L. § 600.5851(1) allows for a claim to be filed beyond the limitations period until the disability is removed.^[3] Of course, M.C.L. § 600.5851(1) is still limited by M.C.L. § 600.5851(7). The key question is the extent to which M.C.L. § 600.5851(7) limits the saving provision found at M.C.L. § 600.5851(1).

When interpreting statutory language, the Legislature is presumed to have intended the meaning it plainly expressed. Pohutski v. City of Allen Park, 465 Mich. 675, 683, 641 N.W.2d 219 (2002). Courts may not speculate about the probable intent of the Legislature beyond the language expressed in the statute. Id. If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. Nastal v. Henderson & Assoc. Investigations, Inc., 471 Mich. 712, 720, 691 N.W.2d 1 (2005).

Clearly, the first part of M.C.L. § 600.5851(7) sets out a specific time that a person under the age of eight must file his or her claim, i.e., before the tenth birthday if the claim accrued before the age of eight. M.C.L. § 600.5851(7). But the second sentence, which is applicable here because plaintiff was over the age of eight at the time of claim accrual, contains no language limiting the application of the saving provision for insanity. M.C.L. § 600.5851(7). The second sentence of M.C.L. § 600.5851(7) only states what the limitations period will be for those plaintiffs whose claim accrues past the age of eight. In other words, although the standard two-year limitations period applies for those plaintiffs past age eight, it does not simultaneously limit the saving provision of subsection 1, which provides that the period of limitations for an insane plaintiff does not begin to run until, "1 year after the disability is removed ... although the period of limitations has run." M.C.L. § 600.5851(1) (emphasis added).

Applying the plain meaning of this sentence, the only limitation is that the period of limitations in M.C.L. § 600.5838a applies because that is the language employed in subsection 7. M.C.L. § 600.5838a(2) redirects the plaintiff to either the period of limitations in § 5805 or § 5851:

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 section[] 5851....

Therefore, I would find that, although M.C.L. § 600.5851(7) may limit a claim for malpractice that accrued before the age of eight, its plain language does not limit those plaintiffs whose claims accrued after the age of ten — as in the present case. The only direction the statute gives is to the "period of limitations set forth in section 5838a...." M.C.L. § 600.5851(7). This plain language does not simultaneously limit the application of M.C.L. § 600.5851(1). It simply directs the reader to the limitations period in M.C.L. § 600.5838a. In turn, § 5838a allows a plaintiff to invoke the grace period in section 5851(1), by directly referring to it in the first sentence of § 5838a(2).

For the above reasons, I do not agree with the majority that all medical malpractice applicants are excluded from the disability grace period found at M.C.L. § 600.5851(1). I would find that defendants' motion for summary disposition was improperly granted and would reverse and remand for further proceedings.

NOTES

[1] In an affidavit attached to plaintiff's response to defendants' motion for summary disposition, Robert M. Shuman, M.D., attested that Jeffrey's disability "prevents him from comprehending rights that he is otherwise bound to know and he is unable to understand or appreciate legal rights which he may have."

[2] Generally, the statutory period of limitations for a medical malpractice action is two years. Burton v. Reed City Hosp. Corp., 471 Mich. 745, 748, 691 N.W.2d 424 (2005); M.C.L. § 600.5805(6) and M.C.L. § 600.5838a(2).

[3] It is undisputed that M.C.L. § 600.5851(8) does not apply in this case. Therefore, even though M.C.L. § 600.5851(1) also appears to exclude cases that fall within the parameters of M.C.L. § 600.5851(8), we do not address that statute because it is not necessary to the resolution of the issues on appeal.

[4] Before 1972, the age of "majority" was "21 years" instead of "18 years."

[5] As stated above, M.C.L. § 600.5851 was enacted in 1948, whereas M.C.L. § 600.5851(7) was enacted as part of the Tort Reform Act of 1986. Further, it is clear that Bissell addressed "the statute of limitations provided in M.C.L. § 600.5851(7)" and not M.C.L. § 600.5851 generally. Bissell, supra at 579, 509 N.W.2d 542.

[1] Whether Hurley was insane for the purposes of the statute is a factual issue that is not in dispute on appeal.

[2] Subsection 8 is not at issue in the present case.

[3] See Lemmerman v. Fealk, 449 Mich. 56, 75, 534 N.W.2d 695 (1995) (the grace period under M.C.L. § 600.5851[1] is available for insane plaintiffs in tort action for sexual abuse, but not when the alleged insanity is based on claim of "repressed memory."); In re Neagos, 176 Mich.App. 406, 412, 439 N.W.2d 357 (1989) (A person who asserts insanity as a disability has one year after the disability is removed to initiate a proceeding even if the period of limitation has expired. However, the disability must have been in existence at the time the claim occurred.) Smith v. Bordelove, 63 Mich.App. 384, 388, 234 N.W.2d 535 (1975) (An infant plaintiff in a medical malpractice has one year from the time infancy was removed to file a claim for medical malpractice regardless of whether the two-year statute of limitations had expired.).