Hubbard v. Lisa Stier, N.P.

1

STACY HUBBARD, Plaintiff-Appellee, v. LISA STIER, N.P., AND MUNSON HEALTHCARE OTSEGO MEMORIAL HOSPITAL, also known as MUNSON HEALTHCARE OMH MEDICAL GROUP- LEWISTON, Defendants-Appellants.

No. 357791

Court of Appeals of Michigan

March 2, 2023

Montmorency Circuit Court LC No. 20-004809-NH.

Before: SHAPIRO, P.J., and GADOLA and YATES, JJ.

GADOLA, J.

Defendants Lisa Stier, N.P., and Munson Healthcare Otsego Memorial Hospital, also known as Munson Healthcare OMH Medical Group-Lewiston ("Munson"), appeal by leave granted the trial court's order denying their motion for summary disposition of plaintiff Stacy Hubbard's complaint. We reverse and remand for entry of an order granting defendants summary disposition.

I. FACTS

This case involves a claim of medical malpractice. Plaintiff alleges that on February 17, 2018, she went to Munson for medical treatment. At Munson, she allegedly told Stier that she had been experiencing chest congestion and coughing for about one week, and also reported her history of diabetes and chronic obstructive pulmonary disease (COPD). According to plaintiff, Stier diagnosed her with an "acute infective exacerbation of" her COPD, she was given a prescription for Zithromax, and she was told to go to an emergency room if her symptoms did not improve or worsened.

On February 21, 2018, plaintiff went to the emergency room at Grayling Hospital where she was diagnosed with pneumonia and admitted. Plaintiff alleges that she then developed "acute hypoxic respiratory failure with sepsis secondary to community acquired pneumonia" and exacerbation of her COPD. She was moved into the hospital's intensive care unit and was intubated and sedated until she was transferred to McLaren Northern Michigan Hospital on March 5, 2018, because of a "change in her mental status, possible stroke . . ., and prolonged intubation." She was transferred to MediLodge on March 22, 2018, and then released to home care on April 13, 2018. Plaintiff alleges that she continues to have significant physical and emotional effects resulting from respiratory failure, sepsis, and aggravation of her COPD.

On February 13, 2020, plaintiff sent a notice of intent (NOI) to Stier and Munson indicating her intent to file a medical malpractice action against defendants. Plaintiff thereafter filed her lawsuit against defendants on November 3, 2020. Defendants moved for summary disposition under MCR 2.116(C)(7), asserting that plaintiff's lawsuit is barred by the statute of limitations. Defendants argued that the two-year statute of limitations would have expired on February 17, 2020, but that plaintiff's submission of the NOI on February 13, 2020, four days before the statute of limitations ran, tolled the running of the statute for 182 days. They argued that the 182-tolling period expired on August 13, 2020, and the statute of limitations expired four days later, meaning that plaintiff had until August 17, 2020, to file her lawsuit; because plaintiff did not file her lawsuit until November 3, 2020, the statute of limitations barred the action.

Plaintiff contended that pursuant to certain administrative and executive tolling orders entered in response to the COVID-19 pandemic, her lawsuit was timely filed. The circuit court agreed and denied defendants' motion for summary disposition. This Court granted defendants leave to appeal.^[1]

II. DISCUSSION

Defendants contend that plaintiff's claim is barred by the statute of limitations applicable to a medical malpractice action. Resolving that question requires that we determine whether certain Administrative Orders (AOs) issued by our Supreme Court in response to the COVID-19 pandemic served to toll the otherwise applicable deadline for the filing of plaintiff's claim. We conclude that under the specific facts of this case, which involves plaintiff's submission of a NOI to sue shortly before the effective date of AO 2020-3, plaintiff's claim was not timely filed.

We review de novo the trial court's decision to grant or deny summary disposition. Meemic Ins Co v Fortson, 506 Mich. 287, 296; 954 N.W.2d 115 (2020). When determining a motion under MCR 2.116(C)(7), we consider any affidavits, depositions, admissions, or other documentary evidence submitted, and accept the allegations of the complaint as true unless contradicted by the documentation submitted by the moving party. Estate of Miller v Angels' Place, Inc, 334 Mich.App. 325, 330; 964 N.W.2d 839 (2020). When there is no factual dispute, and reasonable minds could not disagree regarding the legal effect of the facts, whether a claim is barred by the statute of limitations or other basis set forth in MCR 2.116(C)(7) is a question of law for the court to decide. Id.

A medical malpractice action is time-barred if not commenced within the statutory time limits. MCL 600.5838a(2). The limitations period for filing an action alleging a claim for medical malpractice is two years from the date of the accrual of the claim. MCL 600.5805(8); Haksluoto v Mt. Clemens Regional Med Ctr, 500 Mich. 304, 310; 901 N.W.2d 577 (2017). In this case, the parties do not dispute that plaintiff's claim for medical malpractice accrued February 17, 2018, and that the two-year period of limitations ordinarily would have expired February 17, 2020.

Under the Revised Judicature Act, MCL 600.101 et seq., before a plaintiff files a medical malpractice action, the plaintiff must provide the prospective defendant at least 182 days' notice. MCL 600.2912b(1); Haksluoto, 500 Mich. at 307. When a plaintiff submits a NOI before the expiration of the limitations period, and the limitations period otherwise would expire during the 182-day notice period, the statute of limitations is tolled during the 182-day notice period. Id. Here, the parties do not dispute that plaintiff sent her NOI to Stier and Munson on February 13, 2020, leaving August 17, 2020, under normal circumstances, as the final date for filing her lawsuit (182 days plus the four days left in the limitations period). Plaintiff, however, filed her lawsuit November 3, 2020.^[2]

On March 10, 2020, in response to the outbreak of COVID-19, Governor Whitmer issued Executive Order No. 2020-4, declaring a state of emergency. On March 23, 2020, the Michigan Supreme Court entered Administrative Order No. 2020-3, 505 Mich. cxxvii, which originally stated:

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 amended AO 2020-3 by changing the fourth paragraph to add the following underlined language:

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. [Amended AO-2020-3, 505 Mich. cxliv, cxlv.]

On June 12, 2020, the Supreme Court entered Administrative Order No. 2020-18, 505 Mich. clviii, which states:

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 and probate 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.

Whether the statute of limitations bars plaintiff's claim in this case hinges on the plain meaning of AO 2020-3, as amended and AO 2020-18. We observe that the same legal principles...