LANSING, Mich. (Legal Newsline) - Tolling orders in the COVID era have saved a medical malpractice lawsuit in Michigan, as a state appeals court has ruled the plaintiff had extra time to file.
The Court of Appeals made that decision April 11 in a lawsuit over the death of Linda Walsh, a woman who was treated for years by Dr. John Shaird for chronic pain and eventually overdosed on March 7, 2017.
Her estate waited nearly four years to file its case, then relied on tolling orders related to the COVID pandemic in 2020 to explain why. Though a trial court judge found there was no connection between COVID and the delay in filing, the Court of Appeals said plaintiff lawyers were entitled to an extra 102 days.
The date the two-year statute of limitations began to ran was March 2, 2017, the last time Shaird met with Walsh. Because Walsh died within that two-year window, and the administration of her estate wasn't settled until Dec. 27, 2018, that gave lawyers until Dec. 27, 2020 to file.
They didn't submit the complaint until Feb. 26, 2021. With the benefit of the extra 102 days, the Court of Appeals found they made it in time.
"Defendants argue that AO 2020-3 only applied to deadlines that were set to expire during the emergency period," two judges on a three-judge panel ruled.
"However, it 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."
Judges Noah Hood and Allie Greenleaf Maldonado made up the majority. The complaint alleged Shaird continued to prescribe to Walsh narcotics despite her history of alcohol and prescription drug abuse.
When she died from an overdose, she weighed only 100 pounds.
Judge James Robert Redford dissented, writing first that he thinks the Supreme Court did not have the constitutional authority to suspend statutory limitations periods. And even if it did, the tolling period did not apply to limitations periods that fell outside the specified period prescribed by the administrative orders.
"In this case, plaintiff knew of the claims and the applicable limitations period during which ample time and opportunity existed to diligently pursue them," he wrote.