Livingston Circuit Court LC No. 04-020535-NH.
The opinion of the court was delivered by: Donofrio, J.
Before: DAVIS, P. J., AND DONOFRIO AND STEPHENS, JJ.
The issue in this case involves the wrongful death medical malpractice statute of limitations. Plaintiff, Timothy King, successor personal representative of the estate of Andrew Baker, appeals a March 4, 2008, order denying his motion to set aside the January 2007 dismissal of his claims against defendants, McPherson Hospital, a/k/a Trinity Health-Michigan ("McPherson"), Michael Briggs, D.O., Merle Hunter, M.D., and Emergency Physicians Medical Group, P.C. Plaintiff contends that the trial court's order is erroneous because his action was timely filed under Mullins v St Joseph Mercy Hosp, 480 Mich 948; 741 NW2d 300 (2007) ("Mullins II"). This Court initially denied plaintiff's application for leave to appeal the March 4 order, King v McPherson Hosp, unpublished order of the Court of Appeals, entered July 10, 2008 (Docket No. 284436), but our Supreme Court, in lieu of granting leave to appeal, thereafter remanded the case to this Court for consideration as on leave granted. King v McPherson Hosp, 482 Mich 1154; 758 NW2d 532 (2008).
Because this Court's recent decision in Farley v Carp, ___ Mich App ___; ___ NW2d ___ (Docket Nos. 283405; 284681; 283418; 283726; 283727; and 284319, issued January 5, 2010) ("Farley II") is dispositive of this appeal, and we are bound to follow it by operation of MCR 7.215(C)(2) and MCR 7.215(J)(1), plaintiff's claim fails, and we affirm. However, in accordance with MCR 7.215(J)(2) which provides that the conflict resolution procedure is triggered when a panel of this Court "follows a prior published decision only because it is required to do so by subrule (1)" we indicate our disagreement with the majority's holding in Farley II, and call for the convening of a special panel of this Court pursuant to MCR 7.215(J)(3).
Plaintiff's predecessor, Diana King ("King"),*fn1 filed her complaint on March 1, 2004, alleging that on September 6, 2001, her decedent, Baker, presented at McPherson Hospital complaining of vomiting and a fever. King alleged that defendants failed to diagnose Baker's encephalomyelitis, which led to his death on September 8, 2001. On March 12, 2004, King filed a first amended complaint correcting the board certifications of defendants Briggs and Hunter.
On September 20, 2004, defendants Hunter, Briggs, and Emergency Physicians Medical Group, P.C. ("the EPMG defendants") filed a motion for summary disposition under MCR 2.116(C)(7), (8), and (10), arguing, in relevant part, that the statute of limitations barred King's complaint because she failed to file her complaint within two years after being appointed the personal representative of Baker's estate. The EPMG defendants relied on Waltz v. Wyse, 469 Mich 642; 677 NW2d 813 (2004), reh den 470 Mich 1204 (2004), which held that sending a notice of intent under MCL 600.2912b does not toll the wrongful death saving period. The EPMG defendants also argued that Waltz applied retroactively. McPherson concurred with the EPMG defendants' motion.
On September 20, 2004, plaintiff was appointed successor personal representative. In response to the summary disposition motion, plaintiff argued, in pertinent part, that this case is distinguishable from Waltz because he mailed his notice of intent*fn2 within two years after the date of defendants' malpractice. Plaintiff also argued that Waltz cannot be applied retroactively and that his complaint was timely filed under Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d 177 (2000), clarified and overruled in part in Waltz, 469 Mich at 652-655. Plaintiff further argued that the trial court should apply judicial tolling to the limitations period to save his cause of action. On October 27, 2004, the EPMG defendants filed a reply brief, arguing that plaintiff's interpretation of Waltz was erroneous and that Waltz applied retroactively. On October 28, 2004, the trial court denied defendants' motion, stating "I'm satisfied that the case was timely filed."
On November 18, 2004, both McPherson and the EPMG defendants filed separate applications for leave to appeal with this Court in Docket Nos. 259136 and 259229, respectively. On January 25, 2005, this Court granted defendants' applications and consolidated the appeals. King v Briggs, unpublished order of the Court of Appeals, entered January 25, 2005 (Docket Nos. 259136; 259229). On July 12, 2005, this Court reversed the trial court's decision on the basis that plaintiff's complaint was untimely pursuant to Waltz.*fn3 King v Briggs, unpublished opinion per curiam of the Court of Appeals, issued July 12, 2005 (Docket Nos. 259136; 259229), slip op at 1-2. On August 2, 2005, plaintiff filed with this Court a motion for reconsideration, which this Court denied on August 25, 2005. King v Briggs, unpublished order of the Court of Appeals, entered August 25, 2005 (Docket Nos. 259136; 259229). Thereafter, our Supreme Court denied plaintiff's application for leave to appeal, King v Briggs, 474 Mich 981; 707 NW2d 192 (2005), and his motion for reconsideration, King v Briggs, 474 Mich 1113; 712 NW2d 164 (2006).
On remand, the EPMG defendants filed a motion for entry of an order of dismissal. McPherson concurred with the motion. On January 26, 2007, the trial court granted the motion and dismissed plaintiff's claims. On February 15, 2007, plaintiff filed a claim of appeal with this Court, which this Court dismissed on jurisdictional grounds on April 11, 2007. King v McPherson Hosp, unpublished order of the Court of Appeals, entered April 11, 2007 (Docket No. 276287). Thereafter, plaintiff filed a motion for reconsideration, which this Court denied on June 1, 2007. King v McPherson Hosp, unpublished order of the Court of Appeals, entered June 1, 2007 (Docket No. 276287).
On November 28, 2007, our Supreme Court decided Mullins II, 480 Mich 948, stating, in pertinent part:
We conclude that this Court's decision in Waltz v Wyse, 469 Mich 642 (2004), does not apply to any causes of action filed after Omelenchuk v. City of Warren, 461 Mich 567 (2000), was decided in which the saving period expired, i.e., two years had elapsed since the personal representative was appointed, sometime between the date that Omelenchuk was decided and within 182 days after Waltz was decided. All other causes of action are controlled by Waltz.
On January 24, 2008, plaintiff filed a motion pursuant to MCR 2.612(C)(1) to set aside the trial court's order dismissing his claims relying on Mullins II and arguing that, with respect to this Court's previous opinion holding that plaintiff's claims were time-barred, the law of the case doctrine was inapplicable because an intervening change in the law existed. In response, McPherson argued that the trial court was required to deny plaintiff's motion pursuant to the law of the case doctrine, which it contended applied regardless of the intervening change in the law. McPherson also argued that the trial court lacked jurisdiction to grant relief under MCR 7.215(F)(1)(a) and that the holding in Mullins II did not reverse the previous appellate decisions in this case. Finally, McPherson argued that policy considerations favored the finality of judgments. The EPMG defendants echoed McPherson's arguments and, in addition, contended that the trial court lacked authority to vacate a previous judgment of this Court and that MCR 2.612(C)(1)(a), (e), and (f) were inapplicable. At a February 21, 2008, hearing, the trial court denied plaintiff's motion, stating:
The appellate courts have created a fine mess of this and -- this case, it's an '04 case and it bounced around back and forth up and down with the appellate decisions. I am going to leave it to the appellate courts to tell me what -- what to do. I do find that the law of the case is the Court of Appeals order telling me to dismiss the case. I am going to deny your relief. If the relief is to be granted it's going to be by the Court of Appeals, counsel.
Thereafter, the trial court entered a written order denying plaintiff's motion.
On March 25, 2008, plaintiff filed an application for leave to appeal, which this Court denied on July 10, 2008. King v McPherson Hosp, unpublished order of the Court of Appeals, entered July 10, 2008 (Docket No. 284436). On December 23, 2008, our Supreme Court remanded this case ...