COVID-19 tolling orders keep med-mal suit alive

By Correy E. Stephenson

The trial court erred by excluding the 102-day stay period provided by the Michigan Supreme Court’s COVID-19 tolling orders from its calculation of when the applicable limitations period expired for a medical malpractice complaint, a divided panel of the Michigan Court of Appeals has ruled.

Linda Walsh began seeing Dr. John Shaird in 2008 for treatment of chronic pain. Over the course of nine years, Shaird prescribed several different medications. He last treated Walsh on March 2, 2017, and she was found dead five days later.

Following an autopsy, it was determined that the cause of death was an overdose. At the time of her death, Walsh weighed 100 lbs.

According to the complaint filed by Walsh’s estate against Shaird and the entities that employed him, Shaird prescribed numerous narcotic drugs to Walsh despite her history of both alcohol and prescription drug abuse; she also reportedly told family members that she and Shaird had a sexual relationship.

Walsh’s estate did not file suit until Feb. 26, 2021, almost four years after her death and well outside the applicable limitations period. The estate argued, however, that the complaint was timely filed because of the Michigan Supreme Court’s COVID-19 tolling orders.

The defendants disagreed and filed a motion for summary disposition. After expressing frustration with the estate’s attempt to use the tolling orders and making comments suggesting that some showing of need was required to rely on them the Calhoun Circuit Court granted the motion.

A split appeals court panel reversed.

Generally, a plaintiff must bring a medical malpractice action within two years of the date that the claim accrued, although MCL 600.5852 extends the limitations period in cases in which the party dies before the period of limitations has run.

Here, the estate’s claim of medical malpractice accrued on March 2, 2017, because that was the last date Walsh was treated by Dr. Shaird.

“Pursuant to MCL 600.5805(8), the limitations period for plaintiff’s claims would have expired on March 2, 2019 because the statutory period of limitations for plaintiff’s claim is generally two years,” the majority wrote. “However, because Walsh died before the period of limitations had run, and the letters of authority were issued to Walsh’s estate on Dec. 27, 2018, the period of limitations was extended to Dec. 27, 2020.”

The estate filed the complaint on Feb. 26, 2021, which ordinarily would be outside even the extended limitations period.

However, on March 23, 2020, the Michigan Supreme Court issued Administrative Order No. 2020-3 , which provided that, in light of the COVID-19 pandemic, all deadlines pertaining to case initiation were extended. That order was rescinded effective June 20, 2020.

Although the defendants argued that AO 2020-3 only applied to deadlines that were set to expire during the emergency period, the majority disagreed.

“[I]t is clear from the plain language of AO 2020-3 that the Supreme Court intended that all limitation periods pertaining to the initiation of an action be tolled irrespective of whether they were set to expire during the tolling period,” the judges said. “It would have been easy for the Supreme Court to clarify that its intent was only to extend all deadlines set to expire during the state of emergency, and we decline defendants’ invitation to read such language into the order.

“We also note the practical implications that such an interpretation would have had absent the benefit of hindsight: if AO 2020-3 was restricted to those deadlines set to expire during the state of emergency, then filers would have had no way of knowing whether their deadlines were tolled because it was unclear at that time how long the state of emergency would last.”

As a fallback position, the defendants challenged the constitutionality of AO 2020-3.

But a prior Court of Appeals panel affirmed the AO’s constitutionality in Carter v. DTN Mgt. Co. , “a published opinion by which we are bound,” Judges Noah P. Hood and Allie Greenleaf Maldonado explained.

The appeals court reversed summary disposition in favor of the defendants in Olds v. Ambulatory Surgery Associates, LLC ( MiLW 08-107899 ).

Judge James Robert Redford issued a lengthy dissent , saying he did not believe the Michigan Supreme Court had the constitutional authority to issue administrative orders that altered the running of legislatively defined statutory limitations periods.

“This case demonstrates why the Carter Court’s interpretation and application of our Supreme Court’s March 23, 2020 Administrative Order No. 2020-3, 505 Mich cxxvii (2020) (AO 2020-3) is incorrect.” he wrote.

The judge added that, even assuming the high court had the authority to suspend the running of statutory limitations periods because of the pandemic state of emergency, the interpretation of AO 2023-3 in Carter and Linstrom v. Trinity Health-Mich is flawed, particularly as used in a case such as this.

“Here, all relevant deadlines by which plaintiff had to act fell well outside the 102-day period during which AO 2020-3 existed and months after our Supreme Court rescinded that administrative order by AO 2020-18 ,” Redford noted. “The 102-day suspension of deadlines during the state of emergency should have no impact on this case nor interfere with the running of the statutory limitations period simply because it overlapped the period during which AO 2020-3 operated.”

The matter returns to Calhoun County for further proceedings.

Copyright © 2024 BridgeTower Media. All Rights Reserved.