Edgar Brown died on January 25, 2001, allegedly due to Dr. Peter Barrett’s failure to diagnose serious injuries that Brown suffered in a fall off a ladder. Beth Hoffman was appointed as personal representative of Brown’s estate on July 27, 2001. Under the wrongful death savings act, MCL 600.5852, Hoffman had until July 27, 2003 to file a medical malpractice claim against Barrett. On March 3, 2003, Hoffman served Barrett with a notice of intent to file suit (NOI) pursuant to MCL 600.2912b. She filed the complaint on October 16, 2003 – more than two years after her appointment.
Barrett moved to dismiss Hoffman’s suit, arguing that the complaint was untimely under the Supreme Court’s decision in Waltz v Wyse, 469 Mich 642 (2004). In Waltz, the Court held that an NOI does not toll the time for filing suit under the wrongful death savings act because that statute is a savings provision, not a statute of limitations or repose, as provided in MCL 600.5856. The trial court agreed and granted summary disposition, and the Court of Appeals affirmed in a May 22, 2007 unpublished per curiam opinion.
But in 2007, the Supreme Court held in Mullins v St Joseph Mercy Hosp, 480 Mich 948 (2007) that Waltz did not apply to cases in which the complaint was filed between the time that the Court decided Omelenchuk v City of Warren, 461 Mich 567 (2000), and within 182 days after Waltz was issued. Because Hoffman’s case fell within that class of cases, the Supreme Court reversed the grant of summary disposition to Barrett and remanded the case for further proceedings.
When the case returned to the trial court, Barrett again moved for summary disposition, arguing that both Hoffman’s NOI and affidavit of merit (AOM) failed to comply with the requirements of MCL 600.2912b and MCL 600.2912d. The trial court granted summary disposition without prejudice after finding, and after Hoffman conceded, that the AOM was insufficient. The court found the NOI to be barely adequate.
Barrett appealed, arguing that the circuit court should have dismissed the case with prejudice. Hoffman’s case was time-barred under the Court of Appeals decision in Ligons v Crittenton Hosp, 285 Mich App 337 (2009), which held that a defective AOM does not toll the wrongful death savings period, Barrett maintained. Barrett also asserted, contrary to the circuit court’s ruling, that Hoffman’s NOI was insufficient; he also contended that her medical expert was not qualified.
But the Court of Appeals affirmed in a published decision, concluding that the lower court has correctly dismissed the case without prejudice. The NOI was sufficient, the appellate panel said. Moreover, although there was no dispute that the AOM was defective, the complaint and AOM tolled the savings period; in Mullins cases, the wrongful death savings period was effectively a statute of limitation, and Ligons did not apply, the Court of Appeals reasoned. Accordingly, the circuit court correctly decided that Hoffman had 101 days left in which to file a valid complaint, the appellate court said.
Barrett again applied for leave to appeal to the Supreme Court. The Court held Barrett’s application in abeyance while it considered appeals in Ligons and Green v Pierson, 489 Mich 854 (2011). In Ligons, the Supreme Court concluded, among other matters, that a defective AOM does not toll the wrongful death savings period and that the AOM could not be amended under the applicable statutes and court rules in effect at the time. After deciding Ligons and Green, the Supreme Court again vacated the Court of Appeals decision in Hoffman’s case and remanded the case to the Court of Appeals for reconsideration in light of Ligons. On remand, the Court of Appeals cited its prior decision and concluded that Ligons does not apply to Hoffman’s case because it was not one of the cases to which Waltz did not apply.
Barrett again sought leave to appeal to the Supreme Court. In an order dated October 5, 2012, the Supreme Court directed the case to be scheduled for “oral argument on whether to grant the applications or take other action.” The Court directed the parties to “address whether the plaintiff’s complaint should have been dismissed with prejudice because her notice of intent did not comply with MCL 600.2912b(4).”