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Castro v. Goulet

Supreme Court of Michigan

October 5, 2017

RUBEN CASTRO and CHRISTYCASTRO, Plaintiffs-Appellees,
JAMES ALAN GOULET, MD and JAMES ALAN GOULET, MD, PC, Defendants-Appellants, and STEPHEN R. TOLHURST, MD, Defendant.

         Washtenaw CC: 13-000138-NH

          Stephen J. Markman, Chief Justice Brian K. Zahra Bridget M. McCormack David F. Viviano Richard H. Bernstein Joan L. Larsen Kurtis T. Wilder, Justices.


         On January 10, 2017, the Court heard oral argument on the application for leave to appeal the August 20, 2015 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 questions presented should be reviewed by this Court.

          Viviano, J. (concurring).

         I concur with the denial order because the Court of Appeals reached the correct result for the right reasons. Its decision reflects the guarantee in MCL 600.2912d(2) that a medical malpractice plaintiff complying with that provision's terms will receive an additional 28 days to file his or her affidavit of merit (AOM). I write separately, however, because I believe our Court should, in an appropriate case, reconsider our opinion in Scarsella v Pollak.[1] That case held that the plaintiff's failure to file an AOM with his complaint, as required by MCL 600.2912d(1), meant that the statutory limitations period continued to run after the complaint was filed.[2] That conclusion, I believe, may rest on a flawed premise that has roiled our medical malpractice jurisprudence.[3]

         A close contextual analysis of the relevant statutes casts doubt on Scarsella's conclusion that filing the AOM is necessary to toll the limitations period. This analysis begins with the generally applicable timing provisions in the Revised Judicature Act of 1961.[4] Under MCL 600.1901 of that act, "[a] civil action is commenced by filing a complaint with the court."[5] The commencement must conform to the limitations periods prescribed by statute; a person cannot "bring or maintain an action . . . unless . . . the action is commenced within the period of time prescribed by" MCL 600.5805.[6] Because this provision "pertains only to the filing of the complaint . . . [, ] one must then turn to [MCL 600.]5856 to determine the effect of the statute of limitations once the complaint has been filed."[7] MCL 600.5856, in turn, tolls the running of the statutory limitations period in the following circumstances:

(a) At the time the complaint is filed, if a copy of the summons and complaint are served on the defendant . . . .
(b) At the time jurisdiction over the defendant is otherwise acquired.
(c) At 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 . . . .

Scarsella concluded that these general timing requirements do not apply in medical malpractice cases.[8] It reached this result on the basis of § 2912d(1), which states that "the plaintiff . . . shall file with the complaint an affidavit of merit signed by a health professional . . . ." In Scarsella, the plaintiff filed his malpractice complaint a few weeks before the two-year limitations period would have barred his claim.[9] He did not, however, file an accompanying AOM, and the defendant moved to dismiss for the plaintiff's failure to comply with § 2912d(1).[10] Shortly before the trial court ruled on the motion, but well after the statutory limitations period would have elapsed, plaintiff filed the AOM.

         The Court of Appeals held that the plaintiff's case was time-barred because he filed the AOM after the period expired. We adopted its opinion, which purported to distinguish the general rules in § 5856 from those applicable to medical malpractice cases. In particular, it found that the "[u]se of the word 'shall' " in § 2912d(1) "indicates that an affidavit accompanying the complaint is mandatory and imperative."[11]Consequently, the opinion "conclude[d] that, for statute of limitations purposes in a medical malpractice case, the mere tendering of a complaint without the required affidavit of merit is insufficient to commence the lawsuit."[12] Accordingly, an AOM must be filed to commence the suit.[13] We have elsewhere justified this result by observing that § 2912d gives specific instruction in medical malpractice cases that must trump the usual rules detailed in § 1901 and § 5856.[14]

         It is true that general statutory provisions must give way to more specific provisions.[15] This interpretative canon typically applies either when the general and specific provisions conflict, or when applying the general provision would render the specific one superfluous.[16] But § 5856 and § 2912d do not conflict, and the latter would not be nullified if the former's general tolling rules applied to medical malpractice claims. Section 2912d says absolutely nothing about the limitations period and does not explicitly condition tolling on a timely filed AOM. All the statute requires is that the plaintiff file the AOM with the complaint, or later if an exception applies. No one has yet offered a convincing argument why it would be inconsistent to mandate the AOM filing in § 2912d(1) while at the same time permitting § 5856(1) to toll the running of the statutory limitations period. Tolling in these circumstances would not appear to vitiate the requirements of § 2912d(1): plaintiffs would still have to file the AOM and their claims might be dismissed when they failed to do so, just not on statute of limitations grounds. In other words, § 2912d(1) has its own work to do-namely, forcing plaintiffs to provide medical opinion evidence that their claims are not frivolous-and it need not take on the additional task of tolling the limitations period, especially when it nowhere mentions that period.[17]

         A review of the broader statutory context challenges Scarsella's conclusion that the Legislature intended § 2912d to affect the limitations period. We have already rejected the only imaginable interpretation linking § 2912d to the general statute of limitations. In Ligons v Crittenton Hosp, the plaintiff argued that "for Scarsella to be consistent with MCL 600.1901 and MCL 600.5856(a), an AOM must be 'part and parcel' of the complaint."[18] We explained to the contrary that "Scarsella . . . did not rule that an AOM is a complaint or is 'part and parcel' of the complaint. Rather, the Court consistently referred to the complaint and the AOM as distinct documents."[19] We must treat them as distinct because § 2912d does so. Accordingly, because § 5856(a) refers to the complaint but not the AOM, a persuasive argument can be made that the Legislature did not intend for the AOM to play any role in tolling.

         Absent any explicit textual indication that filing the AOM is a condition to tolling, Scarsella's contrary conclusion is questionable because we must be cautious "not [to] read into the statute what is not within the Legislature's intent as derived from the language of the statute."[20] And we certainly may not do so when the Legislature has already spoken on the subject. The Legislature clearly knows how to start and stop the running of the limitations period in medical malpractice cases. For example, the supposedly more "general" tolling provisions in § 5856 explicitly address medical malpractice cases. Section 5856 tolls the running of the statutory limitations period if the plaintiff provided the notice of intent to sue (NOI) required in § 2912b.[21] This is meaningful because "the expression of one thing suggests the exclusion of all others . . . ."[22] That the Legislature provided for the NOI's tolling effect, but not the AOM's, suggests the AOM may not be needed for tolling to occur. The same implication arises from the Legislature's inclusion of "complaint" as a tolling mechanism, but not the AOM. In short, the Legislature knows how to tweak the limitations period in the medical malpractice context, but does not appear to have done so for AOMs.[23]

         Even more directly, an argument can be made that the Legislature expressly applied the general tolling provisions in § 5805 and § 5856 to medical malpractice claims. This argument starts with MCL 600.5838(2), which establishes the framework for the limitations period:

Except as otherwise provided in [MCL 600.5838a or 600.5838b], an action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed in sections 5805 or 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later.

         Unpacking this section suggests that the normal limitations-period rules control in medical malpractice cases. As an initial matter, § 5805, referred to in the statute quoted above, establishes the general two-year limitations period for malpractice claims. Sections 5851 to 5856, also mentioned, provide for accrual dates and tolling in various specific circumstances. Relevant here, § 5856(a) states that the action is tolled when the complaint is filed and served. The only specified exceptions to that rule come in § 5838a and § 5838b. The latter regards legal malpractice claims and is not relevant here. The former defines a medical malpractice claim and also establishes the limitations framework for those claims, largely mirroring § 5838(2):

An action involving a claim based on medical malpractice under circumstances described in subsection (2)(a) or (b) may be commenced at any time within the applicable period prescribed in section 5805 or sections 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. . . . A medical malpractice action that is not commenced within the time prescribed by this subsection is barred.[24]

         Sections 5838 and 5838a thus state that the normal rules in § 5805 and § 5856(1) "prescribe[]" the commencement of medical malpractice cases. Further, neither § 5838 nor § 5838a includes § 2912d(1) in the list of statutes "prescrib[ing]" when to commence an action. Thus, none of these provisions suggests that the AOM requirement in § 2912d(1) has any bearing on when an action commences. Under this interpretation the usual tolling regime would apply to medical malpractice cases, i.e., under § 5856(1), the running of the statutory limitations period would be tolled when the complaint is filed and served.

         Scarsella's contrary conclusion has given rise to a series of workability problems. The present case, for example, would not have raised even a colorable question without Scarsella's holding. The issue resolved below was whether all the elements of the "good cause" exception to the AOM filing requirement had to be met before the limitations period expires. The exception provides that a plaintiff has "an additional 28 days in which to file the affidavit" if he or she can demonstrate "good cause" for the delay.[25]Defendants contended that the trial court needed to grant the extension before the expiration of the limitations period. They premised this argument on Court of Appeals caselaw holding that the trial court's grant of a plaintiff's extension motion, and not the mere filing of that motion, tolls the running of the statutory limitations period.[26] The Court of Appeals majority in the present case properly read the grant of an "additional 28 days" to mean a full 28 days and not "up to 28 days if the trial court gets around to deciding the motion before the claim is time-barred."[27] And because plaintiffs filed their complaint and motion within the limitations period, filed their AOM within 28 days of their complaint, and the trial court ultimately granted the extension, they complied with all the requirements of § 2912d(2).

         This holding gives effect to the statute's plain meaning. But the outcome would be beyond dispute if Scarsella were not on the books. Defendants argued that the "good cause" exception does not toll the running of the statutory limitations period because it says nothing about tolling. If Scarsella is incorrect, then the fact that § 2912d(2) is silent regarding the statute of limitations makes perfect sense: the AOM has no effect on commencing a lawsuit for purposes of the statute of limitations. As a result, the Legislature would not need to mention tolling when providing an AOM-filing extension period. Instead, the general tolling provisions would apply, and a plaintiff's filing and service of the complaint would halt the limitations period.[28]

         Scarsella likewise confuses the rules pertaining to affirmative defenses. As I explained in my partial dissent in Tyra v Organ Procurement Agency of Mich, the reasoning of Scarsella undergirds the rule "that if a complaint is ineffective at commencing the action, the defendant has no obligation to file affirmative defenses, or an answer for that matter."[29] This broad proposition arises from our order in Auslander v Chernick.[30] There, we held that defendants could forgo raising a statute of limitations defense when the plaintiffs failed to timely file an AOM because the action never properly commenced.[31]

         As I posited in Tyra, Auslander engages in "circular reasoning" to reach its conclusion: "a defendant is relieved of its obligation to allege and establish that a complaint is legally deficient because the complaint is legally deficient."[32] This problem results from Scarsella because the defendant is relieved from its obligation only by virtue of Scarsella's holding that the case has not yet commenced. This makes a hash of the normal rule that the statute of limitations defense is waivable.[33] The typical rules, then, do not apply to medical malpractice cases; and this is for no other ...

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