Ernest v. Brown, Analysis, Limitations, and Practical Application
For nearly two decades, Michigan courts operated under a settled understanding of how, in medical malpractice actions, the wrongful death saving provision interacted with notice of intent tolling. On July 29, 2026, the Michigan Supreme Court upended that framework in Estate of Ernest v. Brown, No. 168462 (Mich. July 29, 2026), overruling nearly twenty years of precedent and materially changing the calculation of filing deadlines in wrongful death medical malpractice actions. The decision is more than a technical adjustment to the statute of limitations: it changes the amount of time that a personal representative may have to commence suit, alters the significance of when a notice of intent is served, and requires practitioners to reconsider statute of limitations analyses that had been treated as settled since the Court’s 2005 decision in Waltz v Wyse, 469 Mich 642 (2004). This article examines the Court’s departure from that precedent, the new framework established by Ernest, and the practical implications for healthcare providers, insurers, and attorneys defending medical malpractice cases in Michigan.
In a wrongful death claim alleging medical malpractice, personal representatives may file their claim within the two-year medical malpractice statute of limitations pursuant to MCL 600.5805(8). The two-year limitations period can be extended pursuant to MCL 600.5856(c), which indicates that in medical malpractice actions, where claimant serves a notice of intent pursuant to MCL 600.2912b, the two-year statute of limitations is tolled, i.e., stops running for 182 days, in addition to the number of days remaining in the two-year statute of limitations. MCL 600.5856(c) applies in wrongful death actions and allows for tolling of the statute if the notice of intent is served within the two-year medical malpractice statute of limitations.
Alternatively, a plaintiff may file their claim within the wrongful death savings provision pursuant to MCL 600.5852. Michigan’s wrongful death savings provision allows a personal representative extra time to file a claim if the decedent dies before the two-year limitations period expires, or within 30 days after its expiration. The claim must be filed no more than three years after the two-year statute of limitations has run. Also, plaintiffs must file their claim within two years after the issuance of letters of authority. MCL 600.5856(c) does not consider tolling of the savings provision outlined in MCL 600.5852. Accordingly, in a wrongful death action alleging medical malpractice pre-Ernest, where a claimant served a notice of intent after the expiration of the two-year statute of limitations, MCL 600.5856(c) had no impact.
In Ernest v Brown, the Michigan Supreme Court expressly overturned Waltz v Wyse, and held that the notice of intent tolling provision under MCL 600.5856 applies to the additional filing period available to personal representatives under MCL 600.5852. In so doing, the Court expressly rejected the rule established in Waltz, which held that the wrongful death saving period was not a statute of limitations and, therefore, could not be tolled by service of a notice of intent.
The distinction is significant in wrongful death claims alleging medical malpractice. Before Ernest, a personal representative relying on MCL 600.5852 had to account for the fact that the savings period continued to run during the mandatory 182-day notice period. Following Ernest, that is no longer the case.
This case arises out of the death of Maurice Ernest following care and treatment at McLaren Regional Medical Center in July of 2020. Mr. Ernest presented to the emergency department with complaints of chest pain on July 16, 2020, and died the following day. Keran Ernest, the Decedent’s daughter, was appointed as personal representative of his estate. She received her letters of authority on June 7, 2021. On February 10, 2023, she served the defendants with a notice of intent to file a claim pursuant to MCL 600.2912b. The Complaint was filed on August 14, 2023. The defendants moved for summary disposition under MCR 2.116(C)(7), arguing that the Complaint was untimely. The trial court agreed, granting the defendants’ motion. Relying on Waltz, the trial court determined that the notice of intent did not toll the two-year saving period available to the personal representative under MCL 600.5852. The Court of Appeals affirmed. The Michigan Supreme Court granted leave to consider whether Waltz was correctly decided and whether the tolling provision under MCL 600.5856 applied to the saving provision provided under the wrongful death statute. In a 5-2 decision, the Supreme Court reversed the Court of Appeals, and expressly overruled Waltz.
Under MCL 600.5852, a personal representative may commence an action within two years after letters of authority are issued, provided the action is filed within the statute’s outer limitation of five years. For more than twenty years, Waltz treated this provision as a saving statute rather than a statute of limitations. Based on that distinction, Waltz held that the tolling provision contained in MCL 600.5856 did not apply to wrongful death claims. The Ernest Court rejected that reasoning and explained that although MCL 600.5852 operates as a saving provision, it also establishes a period in which a personal representative may bring an action that otherwise would be barred. The fact that the statute operates to save an otherwise untimely claim does not mean that the additional period it provides falls outside the language of MCL 600.5856. The Court held that the period provided under MCL 600.5852 is a limitations period for purposes of the tolling statute. When a personal representative serves a notice of intent in accordance with MCL 600.2912b, MCL 600.5856 may toll the time remaining under the wrongful death saving provision. Applying that rule, the Court determined that Ernest’s complaint was timely and remanded the case to the trial court for further proceedings.
The practical impact of Ernest is significant, particularly in wrongful death cases where the ordinary medical malpractice statute of limitations has already expired and the estate is relying on MCL 600.5852. Under Waltz, serving a notice of intent did not stop the wrongful death saving period from running. As a result, plaintiffs had to calculate the filing deadline without adding the tolling period associated with the notice of intent. Failure to account for that distinction could result in dismissal of an otherwise viable claim. Ernest changes that. A personal representative proceeding under MCL 600.5852 may now receive the benefit of the tolling provision in MCL 600.5856 where those statutory requirements are satisfied.
The majority in Ernest did not expressly address retroactivity of the decision. Notably, the Court applied its interpretation to the case at bar which involved a notice of intent that was served more than three years before the Court issued its decision. The general rule in Michigan is that judicial decisions are given full retroactive effect. Schafer v Kent Cnty., 515 Mich 1, 37 (2024). Accordingly, for healthcare providers, insurers, and those representing clients, Ernest v Brown warrants a renewed examination of the statute of limitations in claims where a notice of intent has been served that alleges wrongful death based on medical malpractice. Claims that may have previously been time-barred under Waltz may now be timely under Ernest, even though the underlying malpractice, issuance of letters of authority, or service of the notice of intent occurred before Ernest was decided.
Parties evaluating existing claims should carefully reconstruct the relevant timeline, including the date of the alleged malpractice, date of death, appointment of the personal representative, issuance of letters of authority, and service of the notice of intent before asserting or abandoning a statute of limitations defense.
For healthcare providers and insurers, this likewise means that older claims should not be closed solely based on the assumption that the expiration of the two-year medical malpractice statute of limitations, in wrongful death claims alleging medical malpractice, bars suit. Ernest does not eliminate limitations defenses in wrongful death medical malpractice actions. The viability of a claim remains entirely dependent upon the chronology of events in a particular case and MCL 600.5852(4). Providers and insurers receiving notices of intent involving a deceased patient should review the relevant dates and evaluate the potential filing deadline under the current statutory framework, applying Ernest.
For questions regarding the Ernest v. Brown decision and its impact on wrongful death medical malpractice claims, contact FBMJ attorneys Chloé Schumacher or Malak Tehaili at 734.742.1800.