EMAIL TO A FRIEND COMMENT

 

Oral Tolling Agreement With Malpractice Insurer Not Binding


A woman underwent a total knee replacement surgery. She sustained injuries as a result of the surgery. After the woman provided the surgeon and his practice group with notice of intent to file suit, the two-year limitations period was tolled for a period of 182 days by statute. During the 182-day tolling period, the woman’s counsel allegedly came to an oral agreement with a representative of the defendants’ malpractice insurance provider to toll the limitations period for an additional two weeks. The woman's counsel forwarded to the representative a written tolling agreement, which he asked him to review, and either contact him with any changes, or sign and return it. The representative did not sign the agreement or otherwise reply to the request. The woman filed the medical malpractice suit within two weeks after the end of the 182-day statutory tolling period.

 

Claiming that no agreement to toll the limitations period for an additional two weeks existed, the surgeon and his practice group moved for summary disposition on the theory that the woman’s claim was barred by the two-year statute of limitations. The Oakland Circuit Court granted defendants' motion for summary disposition.

 

The Court of Appeals of Michigan affirmed. The court held that the limitations period was not tolled by agreement of the parties and the doctrine of equitable estoppel did not apply so as to prevent the defendants from using the statute of limitations as a defense.

 

The limitations period was not tolled by agreement of the parties. The court held that the trial court did not err in finding there was insufficient evidence that the parties entered into a valid and enforceable agreement to toll the limitations period. The woman merely alleged that a representative of defendants' insurance company orally agreed to toll the limitations period. There was insufficient evidence that this insurance company representative was authorized to bind the defendants to such an agreement. The existence of a clear and unambiguous agreement to toll the statute of limitations was not apparent from the evidence submitted. The evidence submitted did not raise a factual issue for trial.

 

The doctrine of equitable estoppel did not apply so as to prevent the defendants from using the statute of limitations as a defense. For equitable estoppel to apply, a plaintiff must establish that (1) the defendants' acts or representations induced the plaintiff to believe that the statutory limitations period would not be enforced, (2) the plaintiff justifiably relied on this belief, and (3) she was prejudiced as a result of her reliance on the belief. The court reasoned that, even assuming that the woman’s counsel had previously reached some sort of oral agreement with the representative from the defendants’ malpractice insurer, when the representative still had not signed the agreement or otherwise replied to the request by the day before the 182-day tolling period ended there was clearly no justification to delay the filing of the woman's complaint further and allow the filing deadline to pass. The trial court properly found that justifiable reliance by the woman was absent and that the doctrine of equitable estoppel, therefore, did not apply to prevent the surgeon and his practice group from raising the statute of limitations as a defense.

 

The Court of Appeals of Michigan affirmed the trial court’s granted of the surgeon and his practice groups’ motion for summary disposition on the theory that the woman’s claim was barred by the statute of limitations.

 

See: Hardin v. Prieskorn, 2014 WL 1320184 (Mich.App., April 1, 2014) (not designated for publication).

 

See also Medical Law Perspectives, July 2013 Report: New Hips, New Knees, New Problems: Hip and Knee Replacements 

 

 

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