Medical malpractice; Statute of limitations; Notice of Intent (NOI); Interpreting administrative orders (AOs); Whether AO 2020-3 excluded the 102-day emergency period for statutory limitations periods that expired after the emergency period ended; Carter v DTN Mgmt Co; Linstrom v Trinity Health-MI; Armijo v Bronson Methodist Hosp; Constitutional authority for the AOs

The court deemed “Armijo to be the controlling and binding authority” and, following it, concluded “that AO 2020-3 did not apply to the statute of limitations in this case (which expired after the exclusion period of the AOs) . . . .” Thus, the court affirmed the trial court’s grant of summary disposition to defendants under MCR 2.116(C)(7). The parties’ primary dispute in this medical malpractice case was “whether AO 2020-3 excluded the 102-day emergency period for statutory limitations periods that expired after the emergency period ended, as defendants” argued and the trial court ruled. The court found that because “of the seeming conflict brought about by Carter’s out-of-hand dismissal of Armijo,” it had to decide which decision was binding here. It concluded “that Carter’s analysis of Armijo was faulty, that Armijo’s analysis of the NOI issue was not ‘dispositive of that appeal,’” and in addition “that Carter’s dismissal of Armijo as ‘nonbinding dicta’ was in error. The Armijo Court was indeed presented with the issue of whether the AO’s tolled an NOI period, and concluded that they did not. But that was not the full extent of Armijo’s holding. To the contrary, Armijo’s holding necessarily also encompassed the additional conclusion that the AOs did not toll statutes of limitation that fell outside the exclusion period of the AOs.” The court determined that “Carter and Linstrom improperly failed to follow Armijo[.]” The court concluded that as “we are confronted with two seemingly-binding yet conflicting precedents issued by this Court, we as an intermediate appellate court are compelled to follow Armijo.” Defendants alternatively contended that it was beyond the Michigan “Supreme Court’s constitutional authority to extend the statute of limitations.” The court agreed. But it was nonetheless “obliged to follow Carter’s holding to the contrary,” although doing so did “not affect the outcome of this case because . . . the AOs simply did not apply in these circumstances.” Affirmed.