One of the hallmarks of the current conservative majority on the Michigan Supreme Court is the stated commitment of certain of its members to textualism. Textualism is a doctrine of judicial interpretation of statutes and contract provisions, which essentially holds as follows:
- Courts must adhere to the language, and must apply it to the factual situation if its meaning is clear.
- Courts will engage in interpretation of the language only if it is ambiguous or unclear.
- Courts are to leave policy-making and the weighing of competing interests to the Legislature.
- Courts are required to follow the plain language even if they believe that the legislation is unwise or did not properly weigh the competing interests involved.
The imprint of this doctrine is found in several of the Court's decisions over the past four years. It is a major component of its overall tendency to avoid what it considers as "judicial activism" and to give the political branches the room to exercise their policy-making function without undue interference by the courts. The application of this doctrine has engendered occasional controversy in legal circles.
Textualism as a rule of judicial decision-making provides the doctrinal basis for two recent Supreme Court decisions, both of which involved the reversal of decisions of the Court of Appeals which had limited the application of certain provisions of the 1993 tort reform statutes governing medical malpractice cases. In Greathouse v. Rhodes, the Supreme Court reversed a decision holding that a party must challenge the qualifications of an expert witness within a reasonable time after that witness is named, or lose the right to make the challenge. In Roberts v. Mecosta General Hospital, it reversed a decision holding that a defendant who fails to challenge the adequacy of a Notice of Intent during the six-month investigation period waives the right to object to the Notice after the Complaint is filed.
Greathouse v. Rhodes
The Court of Appeals issued its decision in the Greathouse case in August 2000, finding that the plaintiff who wished to challenge the qualifications of family practice specialists who were named to testify in favor of a defendant general surgeon had waived the right to do so by waiting until shortly before the time of trial to make the challenge. It stated:
"Given the fundamental role standard of care experts have in medical malpractice litigation, and particularly where § 2169 is identified in the statutes requiring both parties to list an expert at the commencement of the litigation, we hold that a party's failure to challenge an expert's basic qualifications under § 2169(1)(a) within a reasonable time after learning the expert's identity results in forfeiture of the issue. Michigan courts have repeatedly held that civil litigants will forfeit or waive issues, entire causes of action, and even constitutional rights by failing to timely assert them. See e.g., People v Grant, 445 Mich 535, 551 n 29; 520 NW2d 123 (1994), quoting Yakus v United States, 321 US 414, 444; 64 S Ct 660; 88 L Ed 834 (1944) ("[n]o procedural principle is more fundamental to this Court than that a constitutional right may be forfeited in . . . civil cases by the failure to make a timely assertion of the right before a tribunal having a jurisdiction to determine it").
* * *
"In determining whether an issue or right is forfeited or waived because it is not timely asserted, our courts have considered both the diligence of the movant and the prejudice the nonmovant will sustain.
* * *
"In our view, the principles set forth in these cases apply with even greater force to the circumstances presented here. Although plaintiff was aware of at least one of Rhodes' proposed experts at or near the beginning of the litigation, she waited until less than twenty-eight days before trial -- more than two years into the litigation -- to file her motion to strike Rhodes' experts. The record also reveals that the motion hearing was held the day before trial; that plaintiff deposed Rhodes almost a year before trial; that plaintiff had numerous means by way of discovery to determine the practice qualifications of Rhodes and his proposed experts well before the month of trial; and, as the trial court noted, plaintiff's motion was both filed and heard in direct violation of its scheduling order. Moreover, the grounds for plaintiff´s challenge did not involve the facts of the case, but were instead based on the claim that Rhodes' experts' specialties and board certifications did not 'match' Rhodes' qualifications. Indeed, challenges to an opponent's expert under § 2169(1)(a) such as the one plaintiff advanced in this case, generally do not require extensive discovery. A simple interrogatory question, a request for the expert's curriculum vitae, or other basic research would reveal whether the expert satisfies the licensure, specialty or certification requirements set forth in § 2169(1)(a). In essence then, plaintiff attempted to either sabotage Rhodes by seeking to deplete the substance of his case with apparently no warning, or force a lengthy and costly adjournment."
The Supreme Court's peremptory Order reversing this ruling was issued in October 2001. It stated:
"On order of the Court, the delayed application for leave to appeal and the application for leave to appeal as cross-appellant from the August 18, 2000 decision of the Court of Appeals are considered, and, pursuant to MCR 7.302(F)(1), in lieu of granting leave to appeal, we REVERSE the judgment of the Court of Appeals insofar as it held that plaintiff forfeited her challenge to defendant´s expert witness by not filing the motion until a month before trial. There is no statutory or case law basis for ruling that a medical malpractice expert must be challenged within a 'reasonable time'. Further, we REMAND the case to the Court of Appeals for consideration of whether MCL 600.2169(1) applies under the facts of this case. If it is found to apply to this case, then the Court of Appeals is to consider the effect of McDougall v Schanz, 461 Mich 15 (1999), on the instant case which was tried and on appeal in the Court of Appeals at the time McDougall was released by this Court."
Although the Court did not engage in any analysis of the issue, it is apparent that the primary thrust of this Order is its observation that "There is no statutory or case law basis for ruling that a medical malpractice expert must be challenged within a 'reasonable time.'" Its implicit ruling is that, without such authority, found in a statute or in case law, the Court of Appeals had no business imposing such a requirement on its own, and that to do so constituted "legislating from the bench" rather than simply ruling on the law.
(For those who simplistically believe that the current Supreme Court rules in favor of defendants as a matter of course, it should be noted that this decision resulted in a victory for the plaintiff.)
Roberts v. Mecosta General
The Court of Appeals decision in the case of Roberts v. Mecosta County General Hospital was issued in May 2000. At the trial court level, the defendants had moved for dismissal of the complaint after the statute of limitations period had expired, arguing that the notice had been deficient because it failed to contain the minimum information specified in section 2912b of the Revised Judicature Act. They further argued that the failure to make the specified averments meant that the filing of the Notice of Intent was insufficient to toll the running of the statute of limitations. The ultimate result, then, would have been the outright dismissal of the plaintiff's claim, since it would not have been timely filed under the statute of limitations.
The Court of Appeals, unwilling to come to such a harsh conclusion, attempted to get around it by agreeing with the plaintiff's assertion that the defendants had failed to raise any objection to the sufficiency of the notice within the six-month investigation period. The Court relied upon a 1901 decision of the Michigan Supreme Court, holding that such an objection by a city was necessary when it sought to challenge the sufficiency of a notice of a potential claim. The Court in that case had stated:
"This notice is not a pleading, and we are of the opinion that the requirement should not receive so strict a construction as to make it difficult for the average citizen to draw a good notice, especially in view of the evident intention that a substantial statement should be sufficient, and the serious consequences of reliance upon a defective notice until after the expiration of the 60-day period."
After considering another case involving notice to an insurance company of a potential claim, the Court of Appeals concluded:
"We believe that a similar principle should apply to the case at bar. Plaintiff did, in fact, give a notice to defendants. Without delving into the adequacy of that notice, it did inform defendants that plaintiff claimed negligent treatment by defendants from which plaintiff suffered injury. Defendants believe, and the trial court agreed, that that notice was inadequate in a number of respects.
"However, defendants did not raise those objections until after suit was filed and, more importantly, after the period of limitation had run and plaintiff was no longer in a position to be able to file a new notice of intent and commence a new suit. In short, defendants sandbagged, harboring the alleged error until plaintiff could no longer correct it and the only available remedy would be dismissal with prejudice. This Court cannot condone such conduct."
The Supreme Court's ruling reversing the Court of Appeals was issued in April 2002. Speaking for the majority of five, Justice Robert Young introduced the opinion by noting:
"We hold that the statute of limitations cannot be tolled under MCL 600.5856(d) unless notice is given in compliance with all the provisions of MCL 600.2912b. We further hold that MCL 600.2912b places the burden of complying with the notice of intent requirements on the plaintiff and does not implicate a reciprocal duty on the part of the defendant to challenge any deficiencies in the notice before the complaint is filed."
After reciting the facts and the Court of Appeals holding, the Court noted the plaintiffs' argument and its rejection of that argument as follows:
"Plaintiff argues that the language 'is given in compliance with section 2912b' indicates that the Legislature intended only the delivery provisions of §2912b to be applicable to §5856(d). In other words, plaintiff´s position is that, as long as §2912b(2)3 is satisfied, the statute of limitations is tolled under §5856(d), notwithstanding noncompliance with §2912b(4). On the basis of a plain reading of the statute, we reject this contention."
After noting the general rules of construction, the Court observed:
"If the statute´s language is clear and unambiguous, then we assume that the Legislature intended its plain meaning and the statute is enforced as written. People v Stone, 463 Mich 558, 562; 621 NW2d 702 (2001). A necessary corollary of these principles is that a court may read nothing into an unambiguous statute that is not within the manifest intent of the Legislature as derived from the words of the statute itself. [citation omitted]
"Section 5856(d) clearly provides that notice must be compliant with §2912b, not just §2912b(2) as plaintiff contrarily contends. Had the Legislature intended only the delivery provisions of §2912b to be applicable, we presume that the Legislature would have expressly limited compliance only to §2912b(2). However, the Legislature did not do so. Rather, it referred to all of §2912b.
"Since the statute is clear and unambiguous, this Court is required to enforce §5856(d) as written. [citation omitted] As a result, the tolling of the statute of limitations is available to a plaintiff only if all the requirements included in §2912b are met."
* * *
"Subsections 2912b(1) and (4) clearly place the burden of complying with the notice of intent requirements on the plaintiff. A clear and unambiguous statute requires full compliance with its provisions as written. Northern Concrete Pipe, Inc v Sinacola Companies-Midwest, Inc, 461 Mich 316, 320; 603 NW2d 257 (1999). Accordingly, plaintiff must fulfill the preconditions of § 2912b(4) in order to maintain a medical malpractice action.
"Further, nowhere does the statute provide that a defendant must object to any deficiencies in a notice of intent before the complaint is filed. In the absence of such a statutory requirement, we do not have the authority to create and impose an extrastatutory affirmative duty on the defendant. Omne Financial, supra. The role of the judiciary is not to engage in legislation. Tyler v Livonia Schools, 459 Mich 382, 392-393, n 10; 590 NW2d 560 (1999). The Legislature did not require that an objection to a notice of intent must be raised before a certain stage of the litigation." As expected, the remaining liberal Justices, Kelly and Cavanagh, dissented from this ruling. Although they agreed that there is no duty to object to the adequacy of the Notice during the investigative period, they would find that the defendants, by engaging in an exchange of correspondence and requests for medical records and other information, had implicity waived the requirements by an affirmative act leading the plaintiff to conclude that her notice had been adequate. They addressed the "plain language" approach by stating:
"Waiver is an equitable doctrine, applied judicially to avoid injustice. 28 Am Jur 2d, Estoppel and Waiver, § 197. As is true with the doctrine of equitable estoppel, the possibility of waiver need not be set forth in the language of a statute." What we will expect to continue to see from this Court is a great deal of deference to the Legislature in analyzing the policies and values that go into its enactments, including the tort reform statutes, and the continued enforcement of a rule requiring that the courts follow the plain language of those enactments and avoid grafting their own limitations and qualifications onto them. |
