Medical malpractice; Accrual; MCL 600.5838a(1); Haksluoto v Mt Clemens Reg’l Med Ctr; The six-year statutory period of repose; MCL 600.5838a(2); Nortley v Hurst; Notice of intent (NOI); MCL 600.2912b(1); Computation of time under MCR 1.108(1); Tolling; MCL 600.5856(c); Carter v DTN Mgmt Co; Wenkel v Farm Bureau Gen Ins Co of MI; Armijo v Bronson Methodist Hosp; Linstrom v Trinity Health-MI; Hubbard v Stier; Whether the Supreme Court’s Administrative Order (AO) 2020-3 (original & amended) extended the filing period; Constitutional validity of the AOs; Browning v Buko; Separation of powers; McDougall v Schanz; The Supreme Court’s constitutional purview; MI Const Art. 6 § 5; Effect of binding precedent; The court’s discretion to review controlling legal issues; MCR 7.203(A) & (B); Special conflict panel

Noting it was bound by Carter, the court held that plaintiff’s medical malpractice complaint was timely filed. However, it disagreed with Carter’s determination that the Michigan Supreme Court had the constitutional authority to issue AO 2020-3, “and but for Carter would hold that the Supreme Court did not have the constitutional authority to” do so and thus, that plaintiffs’ complaint was “untimely filed (after the expiration of the applicable statute of repose), and would reverse and remand for entry of summary disposition” for defendants. The court called “for the convening of a special panel under MCR 7.215(J)(3) to consider the conflict between our rationale and that of Carter relative to the constitutional validity of AO 2020-3.” Plaintiffs sued defendants for medical malpractice. The trial court denied defendants’ motion for summary disposition, finding the action was timely filed and not barred by the applicable statute of repose. “Excluding, under Carter, the 102 days of the exclusion period from the applicable statute of repose, and further applying the tolling of the statute of repose by the service of plaintiffs’ NOI, plaintiffs’ complaint was timely filed.” However, the court agreed with defendants that the Supreme Court did not have the authority to issue AOs 2020-3 and 2020-18. “[W]e follow Carter on this issue, but only because we are required to do so . . . . But for Carter, we would hold that our Supreme Court did not have the constitutional authority to issue AO 2020-3 and AO 2020-18 and that plaintiffs’ complaint was” untimely filed as a result. The court found that the Supreme Court unconstitutionally intruded into the legislative sphere. “While the early days of the pandemic certainly were trying and filled with uncertainty . . . , and while the Supreme Court’s intentions were undoubtedly laudable, in retrospect its issuance of AO 2020-3 was plainly unconstitutional. Should this issue reach the Supreme Court, we respectfully suggest that it should acknowledge as much and similarly conclude.” In sum, the court held that “Carter was wrongly decided; the Supreme Court did not have the constitutional authority to issue AO 2020-3 (or the related AOs). Plaintiffs’ complaint was therefore untimely filed . . . .” The court declared a conflict with Carter “relative to the constitutional validity of the Supreme Court’s AOs.”