Sam v. Balardo

308 N.W.2d 142, 411 Mich. 405

• Court: Michigan Supreme Court
• Decided: July 13, 1981
• Docket: 61954, (Calendar No. 3)
• Status: Published

Opinions

Ryan, J.

This Court granted leave to appeal to address the issue, "[W]hether the applicable statute of limitations in actions alleging legal malpractice is two years or three years”.

We hold that a legal malpractice suit is subject to the two-year statute of limitations pursuant to MCL 600.5805(3); MSA 27A.5805(3).¹

I

On July 18, 1973, Willie James Sam filed a complaint in the Third Judicial Circuit Court charging attorney Marilynn J. Balardo with legal malpractice. The complaint alleged that plaintiff had consulted the defendant during March or April, 1970 concerning a lawsuit which had been filed against him in the Detroit Common Pleas Court. Ms. Balardo agreed to represent the plaintiff and filed an answer in his behalf in the matter. Plaintiff claims the defendant then advised him of two adjournments of the date set for trial. On September 10, 1970, a default judgment was entered against plaintiff in Common Pleas Court. He contends that he was not notified of that proceeding.

Plaintiff acknowledged that some time after September, 1970 he contacted the defendant regarding his case and was advised by the defendant that he should pick up all his papers from her office since defendant would no longer represent plaintiff. Defendant contends that a written "release” was executed between the parties on October 13, 1970 which purported to absolve and release defendant from all responsibility with respect to this matter.

Plaintiff alleges that he did not learn of the judgment entered against him until December 23, 1972, at which time he was refused renewal of his motor vehicle operator’s license because of the outstanding judgment. He was unsuccessful in attempting to have the default judgment set aside and thereafter instituted the present action.

Defendant filed a motion for accelerated judgment alleging that plaintiff’s claim is barred by the running of the two-year statute of limitations. The motion was supported by an affidavit which alleged that the last service defendant rendered for plaintiff was on June 30, 1970 when she had the trial of the Common Pleas action adjourned and that, in any event, her last contact with plaintiff was on October 13, 1970 when plaintiff picked up his papers from defendant and signed a release.

The trial court denied the motion. It ruled that the question of whether plaintiff should have discovered the defendant’s alleged malpractice between September 10, 1970 and December 23, 1972 was one of fact for the jury.² The jury returned a verdict of no cause of action. Plaintiff appealed, claiming that the three-year statute of limitations controlled.³ A divided Court of Appeals affirmed, finding that the two-year limitation period contained in MCL 600.5805(3); MSA 27A.5805(3),⁴ applies to legal, medical, and other recently created malpractice actions. Judge Cavanagh dissented.⁵ This Court granted plaintiff’s application for leave to appeal by an order dated October 1, 1979.

II

The statutory provisions governing the periods of limitation for tort actions form part of the Revised Judicature Act of 1961. MCL 600.5805; MSA 27A.5805 provided in pertinent part:

"No person may bring or maintain -any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section.

"(3) The period of limitations is 2 years for actions charging malpractice.

"(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.”

Plaintiff argues that the two-year period of limitation applies only to actions charging malpractice against physicians, surgeons and dentists and that a malpractice action brought against an attorney falls within the general three-year period of limitation for recovery of damages for injuries to persons or property.⁶

Defendant, supported by amicus curiae, the State Bar of Michigan, counters that the two-year limitation applies to actions charging malpractice of any member of a state-licensed profession.

In concluding that the period of limitations within which an action charging legal malpractice must be brought is two years, we need not and do not decide whether actions against any professional groups, other than attorneys, are subject to the two-year period of limitations.

Judge Cavanagh, who wrote the dissenting opinion in the Court of Appeals in this case, presented a thorough analysis of the legislative history of MCL 600.5805; MSA 27A.5805:

"The legislative history of malpractice actions also lends some support to the conclusion that the two-year limitations period applies.

"The common law permitted actions for legal malpractice as well as for medical malpractice. The Legislature very early provided that these actions could be initiated by civil arrest on the writ of capias ad respondendum. The statute of limitations on these actions was six years.

"These limitation periods were modified by the Judicature Act of 1915. That act provided a three-year period for '[a]ctions to recover damages for injuries to person or property’. 1915 CL 12323(2). A shorter, two-year period was provided for malpractice, but it was limited to the 'malpractice of physicians, surgeons or dentists’. 1915 CL 12323(3).

"These provisions remained unchanged until passage of the Revised Judicature Act in 1961. That act, quoted at the outset of this opinion [see MCL 600.5805(3); MSA 27A.5805(3) quoted above] dropped the language limiting the malpractice statute to physicians, surgeons or dentists. The general three-year statute for injuries to persons or property remained unchanged.

"The act, and parallel court rule revisions, also rewrote the procedures for initiation of malpractice suits. The writ of capias ad respondendum was abolished, all suits were to be commenced by filing a complaint, and summons succeeded capias as the process to be served on the defendant. The statute authorizing use of capias for initiation of a malpractice suit was repealed with abolition of the writ, leaving the common law as the exclusive source for rights of action for legal and medical malpractice.

"Viewing these several revisions as an interrelated whole, it might reasonably be inferred that the abolition of the special procedures for malpractice suits, and the apparent broadening of the medical malpractice statute of limitations, were parts of a general plan for simplification and consolidation of the laws relating to the malpractice of both professions. This interpretation is strengthened by the simultaneous revision of the statute authorizing malpractice actions against charlatans, which was extended to include actions 'against any person professing or holding himself out to be a member of a state licensed profession’.” (Footnotes omitted.) 85 Mich App 20, 25-27; 270 NW2d 522 (1978).

We agree that the legislative history of the provision in question, particularly including the omission of the language of limitation "of physicians, surgeons or dentists” from the two-year limitation period for actions sounding in malpractice, is strong support for the proposition that the two-year limit of MCL 600.5805(3); MSA 27A.5805(3) applies to both medical and legal malpractice.

More importantly, however, settled rules of statutory construction unmistakably confirm the fact that actions charging attorney malpractice are subject to the two-year period of limitation.

In Jones v Grand Ledge Public Schools, 349 Mich 1, 9; 84 NW2d 327 (1957), this Court, in quoting Justice Cooley from the early case of People ex rel Twitchell v Blodgett, 13 Mich 127 (1865), reiterated the foremost rule of statutory construction:

" 'There are certain well-settled rules for the construction of statutes, which no court can safely disregard. Where the statute is plain and unambiguous in its terms, the courts have nothing to do but to obey it. They may give a sensible and reasonable interpretation to legislative expressions which are obscure, but they have no right to distort those which are clear and intelligible. The fair and natural import of the terms employed, in view of the subject matter of the law, is what should govern.’ ”

It is clear that we are dealing with a statute whose language is plain and unambiguous on its face. MCL 600.5805(3); MSA 27A.5805(3) states that actions charging malpractice shall be brought within two years. Undoubtedly relying on that plain language, several Court of Appeals decisions⁷ and a legal commentator⁸ have concluded that the two-year statutory provision is applicable to actions charging legal malpractice. We reach the same conclusion. Once a statute has been declared unambiguous on its face, there is no room for further construction; legislative intent must be gleaned from the clear and explicit words of the statute.⁹

We observe, however, that the word malpractice, as it is used in MCL 600.5805(3); MSA 27A.5805(3), although clear and explicit, is nowhere defined in the Revised Judicature Act. Plaintiff urges this Court to adopt the definition of malpractice used in Kambas v St Joseph's Mercy Hospital of Detroit, 389 Mich 249; 205 NW2d 431 (1973). In Kambas, the Court held that the two-year period of limitation for malpractice actions did not apply to a suit charging negligence of registered nurses in the performance of their professional duties. Instead, nurses were subject to the three-year limitation period embodied in MCL 600.5805(7); MSA 27A.5805(7). In defining malpractice for purposes of the statute of limitations, this Court relied on an opinion of the Ohio Supreme Court¹⁰ that interpreted a similar malpractice statute of limitations. This Court found that the Legislature intended that malpractice would be defined according to the common-law definition of the term and thus only those groups traditionally liable for malpractice would be benefited by the two-year statute of limitations. Plaintiff contends that the common-law definition of malpractice in this state is negligent performance of a physician or surgeon in his or her professional duties.

Relying on two other provisions of the Revised Judicature Act, MCL 600.5838; MSA 27A.5838, and MCL 600.2912; MSA 27A.2912, amicus submits that malpractice, as it is used in MCL 600.5805(3); MSA 27A.5805(3), applies to any member of a state-licensed profession.

As indicated, we need not decide at this time whether the malpractice statute of limitations applies to all members of state-licensed professions. However, we agree that the Court was correct in Kambas, supra, in its observation that the Revised Judicature Act does not define malpractice.¹¹ Accordingly, we conclude that reliance on other sections of the Revised Judicature Act for a definition of malpractice for purposes of § 5805(3) is erroneous.

MCL 600.5838; MSA 27A.5838,¹² as it originally appeared in the Revised Judicature Act and at the time of trial in the instant case, was concerned with the time of accrual of malpractice actions brought against members of state-licensed professions. A cause of action for malpractice accrued at the time of the last treatment or service. 1975 PA 142 subsequently amended MCL 600.5838; MSA 27A.5838¹³ to provide that a malpractice cause of action may be commenced against one of the enumerated state-licensed health professionals¹⁴ at the time of last treatment or within six months of discovery of the alleged malpractice. We are convinced that this amendment still pertains to accrual periods and does not define malpractice for purposes of the two-year statute of limitations. This view is fortified by the statement of legislative intent as it is set forth in the Analysis of the Senate Bill by the House of Representatives Analysis Section.¹⁵

Similarly, MCL 600.2912; MSA 27A.2912,¹⁶ does not address itself to a definition of malpractice or identification of who may be sued for malpractice for purposes of the two-year statute of limitation. Instead, it is concerned with legislative decision that the impostor and the duly licensed professional be held to the same standard of care. This was explained by this Court in Kambas, supra, 253:

"Section 2912 addresses itself exclusively to the problem of the empiric. This pseudo-professional is subject to suit in malpractice and is to be held to the same standard of care as the licensed professional he misrepresents himself to be.

"That this is the only purpose of § 2912 is clear from the Committee Comment:

" 'The source section pertained only to physicians and surgeons. Note that the broadening of this section does not create a new cause of action. Members of state licensed professions are liable for malpractice at common law, as are unlicensed persons. What this section does is hold the unlicensed person to the standard of care to which a member of the state licensed profession would be held, instead of to the standard of care of a layman, to which unlicensed perspns are held at present.’ (Emphasis added.)”¹⁷

In our view, there is a reasoned explanation for the fact that the Revised Judicature Act does not define malpractice. The RJA is remedial legislation¹⁸ designed to set forth laws and a system of procedure for our courts.¹⁹ In his treatise, Sutherland explains that a common characteristic of remedial statutes is that they affect procedural rights:

"An examination of the decisions shows that the courts have assumed that the term 'remedial’ has a limited meaning which is in two respects: (1) Usually 'remedial’ is used in connection with legislation which is not penal or criminal in nature, in that such laws do not impose criminal or other harsh penalties. (2) The term 'remedial’ is also often employed to describe legislation which is procedural in nature in that it does not affect substantive rights.” 3 Sutherland, Statutory Construction (4th ed), § 60.02, p 31. Accord: Hansen-Snyder Co v General Motors Corp, 371 Mich 480, 484-485; 124 NW2d 286 (1963).

Moreover, this Court has previously declared that the RJA is legislation that affects procedural rights:

"We cannot accept the defendants’ view. However desirable the stated objectives might be, it is doubted that such was the legislative purpose. The statute in question is the Revised Judicature Act. It was drawn, as defendants point out, by a distinguished committee of lawyers, known as the Joint Committee on Michigan Procedural Revision. The purpose of the act was to effect procedural improvements, not advance social, industrial or commercial policy in substantive areas.” Connelly v Paul Ruddy’s Equipment Repair & Service Co, 388 Mich 146, 151; 200 NW2d 70 (1972).

It follows then that since the Revised Judicature Act was addressed to procedural reform, substantive rights, such as the definition of malpractice and who may be sued for malpractice, are not defined by the RJA. Instead, the definition of malpractice and liability therefor are to be determined by resort to the common law.

We disagree with plaintiff’s contention that the common-law definition of malpractice in this state is limited to the negligent performance of professional duties by a physician or surgeon. There is authority to the contrary in this jurisdiction. Implicit recognition of a common-law cause of action for legal malpractice may be found in Dean v Radford, 141 Mich 36; 104 NW 329 (1905), and In the Matter of Mills, an Attorney, 1 Mich 392 (1850).²⁰ Thus, although legal malpractice actions were far less prevalent at common law than medical malpractice actions, this Court long ago recognized a common-law cause of action for legal malpractice. Following the rule that words employed by the Legislature derive their meaning from the common-law usage at the time of the passage of the act, Allison v Smith, 16 Mich 405, 433 (1868); Equitable Trust Co v Milton Realty Co, 261 Mich 571, 575; 246 NW2d 500 (1933), since actions alleging legal malpractice were recognized at the time of the enactment of the Judicature Act of 1915 and at the time of the Revised Judicature Act of 1961, it follows that a cause of action sounding in legal malpractice is encompassed within the definition of malpractice as used in MCL 600.5805(3); MSA 27A.5805(3). Stated syllogistically, since all malpractice actions are subject to a two-year statute of limitation and a legal malpractice action is a malpractice action, it follows that a legal malpractice action is subject to a two-year statute of limitation.

This conclusion is consistent with the committee comment to § 2912²¹ which states that the liability for malpractice of members of state-licensed professions²² is to be determined by resort to the common law. Accordingly, the provisions of the RJA do not purport to create or limit the cause of action of malpractice to something other than what was recognized at common law.

This Court followed the same analytical approach in Kambas, supra, by utilizing the common-law definition of malpractice to determine if nurses could be sued for malpractice and therefore be subject to a two-year period of limitation. The plaintiff argues, however, that since this Court found that nurses could not be sued for malpractice at common law and were thus subject to the three-year period of limitations, Kambas23 is authority for the proposition that the Legislature intended to extend the benefit of the two-year malpractice period of limitation only to those professions encompassed in the Judicature Act of 1915, to wit, physicians, surgeons and dentists. We refer plaintiff to Judge Cavanagh’s response²⁴ to this argument in his opinion below to which response we subscribe. Moreover, the approach taken by the Kambas Court is entirely consistent with the approach taken herein. By looking to the common law, the Court found that nurses could not be sued for malpractice at common law and were thus subject to a three-year negligence period of limitation. In contrast, we find that attorneys were and continue to be liable for their malpractice at common law and thus are subject to the two-year malpractice period of limitation.

By examining the clear and explicit language of MCL 600.5805(3); MSA 27A.5805(3), to wit, "actions charging malpractice”, to determine the legislative intent and meaning of those words, we conclude that legal malpractice is encompassed within the term malpractice as it is used in MCL 600.5805(3); MSA 27A.5805(3).

III

While we think there is no need to look beyond the plain meaning of the language of MCL 600.5805(3); MSA 27A.5805(3) to warrant the conclusion we reach,²⁵ because the plaintiiPs argument rests so heavily upon interpretation and construction of the statute in question and in view of the precedent-making character of our decision, we turn now to construe the statute in question, employing familiar extrinsic aids.

A

Plaintiff contends that since the Revised Judicature Act is merely a general revision of the Judicature Act of 1915, this Court should observe the rule of statutory construction that declares that where statutes are revised, a mere change in phraseology, or the addition or omission of words, does not operate to change the meaning of the revised statute unless there is a clear and unmistakable intent by the Legislature to make a change. Applying this rule, plaintiff argues that since there is no clear expression of intent to vary the meaning, § 5805(3) of the RJA should have the same meaning as its predecessor, the Judicature Act of 1915,²⁶ that provided that actions "for malpractice of physicians, surgeons or dentists” shall be brought within two years. He argues that although § 5805(3) states that "[t]he period of limitations is two years for actions charging malpractice”, it should have the same meaning as the Judicature Act and therefore the two-year period only applies to malpractice actions brought against physicians, surgeons or dentists. Plaintiff submits that in contrast to § 5805, two instances of specific legislative intent to broaden the definition of malpractice may be found in § 5838 and § 2912 which were amended to include language incorporating the term state-licensed professional.

Amicus counters that the 1961 legislative revision of the Judicature Act removing the words, "physicians, surgeons, or dentists” from the present statute manifested an intent to change and broaden the definition of malpractice. Amicus cites authority for the proposition that when the Legislature amends a statute, and particularly when it does so with a comprehensive amendment, there is a presumption of an intent to change the law.

We cannot agree with plaintiffs argument.²⁷ We find that the deletion of the words "physicians, surgeons or dentists” was the purposeful removal from the statute of language of limitation and is a clear and specific indication of legislative intent to change substantively the meaning of MCL 600.5805(3); MSA 27A.5805(3).²⁸

73 Am Jur 2d, Statutes, § 237, p 418, states:

"The omission of a word in the amendment of a statute will be assumed to have been intentional. Where it is apparent that substantive portions of a statute have been omitted by process of amendment, the courts have no express or implied authority to supply omissions that are material and substantive, because that would in effect be the enactment of substantive law.”²⁹

This is consistent with the rule of statutory construction stated in 1A Sutherland, Statutory Construction (4th ed), § 22.30, p 178, that "any material change in the language of the original act is presumed to indicate a change in legal rights”.³⁰ As a rule, courts look to the circumstances surrounding the enactment to determine if the presumption can be fairly supported. 1A Sutherland, supra, p 179. It is our view that the circumstances surrounding the enactment of § 5805(3) of the Revised Judicature Act further buttress the conclusion that the omission was intentional and reflects a change in legal rights.

The malpractice period of limitations was first enacted in a statute entitled "Of the limitations of personal actions” in 1905.³¹ As originally enacted, it provided that "all actions against physicians, surgeons and dentists for malpractice shall be commenced within two years”. The language, "physicians, surgeons and dentists”, which limited the class of defendants who were protected by the short two-year limitation period remained through eight subsequent amendments³² until the passage of the Revised Judicature Act in 1961. At that time, the Legislature saw fit to omit this language, thereby making all actions that sound in malpractice subject to a two-year bar. In light of the long history during which this language remained unchanged,³³ we regard this deletion in the RJA as an intentional effort by the Legislature to effect a change in legal rights.

Moreover, there is a reasoned explanation for the 1961 omission of the language, "physicians, surgeons or dentists” from the malpractice statute of limitations that further supports the position that this change was intentional.

In the early 1900’s, when the malpractice period of limitations was first enacted, there were some, albeit very few, malpractice actions brought against attorneys. Medical malpractice actions were far more prevalent, which explains the protection given to physicians, surgeons and dentists in the early statutes of limitations. In most recent times, however, attorneys have fared less well in eluding the net of malpractice liability. By the middle of this century, malpractice actions against attorneys became more frequent. The increased number of malpractice actions against attorneys and other groups in more recent times logically explains the 1961 legislative action in deleting the language, "physicians, surgeons or dentists” from the malpractice statute of limitations. Thus, the historic circumstances surrounding the enactment of MCL 600.5805(3); MSA 27A.5805(3) strongly support the presumption that the omission was a material change in the language reflecting the legislative intent to effect a change in legal rights.

B

Plaintiff, relying on the dissenting opinion in Kambas v St Joseph’s Mercy Hospital, 33 Mich App 127; 189 NW2d 879 (1971), points to the committee note for § 5805, written by the Joint Committee on Michigan Procedural Revision which drafted the RJA, as expressing the true intent of the Legislature in drafting this section:

"Section 5805 is a compilation of the limitations on the general tort remedies. Existing time periods have been used.”³⁴ (Emphasis supplied.)

Plaintiff argues that § 5805 was simply a compilation of the existing periods of limitation from the Judicature Act of 1915. Since the Judicature Act provided a two-year period of limitation for malpractice of "physicians, surgeons or dentists”, and a three-year period for malpractice actions against others, malpractice as it is used in § 5805 of the RJA means malpractice of physicians, surgeons or dentists.

We do not agree with this interpretation of the committee comment. The committee comment focuses on the general tort remedies. Of the nine³⁵ torts enumerated in § 5805 of the RJA, all have retained the same period of limitation as may be found in the source sections.³⁶ Thus the limitation periods under the RJA for actions charging, for example, assault, battery or malpractice, have not changed from the former statute and continue to be two years. The committee comment is not directed at the status of the parties; it does not say that existing time periods have been retained for certain groups of persons who may be sued for these general tort remedies. The general tort remedy sounding in malpractice may be referred to categorically and apart from the potential parties for purposes of stating the applicable period of limitations.³⁷ Thus, we find the committee comment, as an expression of legislative intent, quite consistent with the position that the Legislature intended to alter the meaning of § 5805(3) by omitting the words "physicians, surgeons or dentists” from the malpractice statute of limitations.

We note in passing an excerpt from the Michigan State Bar Joint Committee on Michigan Procedural Revision — Final Report, Part I, Committee Report and Recommendations (1960), p 19:

"After the draft of each [statute] in this report is a statement by the committee pointing [out its source and] significance. However, the language of each of the [statutes] must be examined to determine its meaning and effect. The following is a brief description of some of the changes that will be of value to litigants.” (Emphasis supplied.)

Plaintiff would have this Court interpret the committee comment and the statutory provision in question to reach a result that is inconsistent with the plain wording of the statutory language.³⁸ We decline to follow that course.

C

One final and persuasive reason for finding that the two-year period of limitation applies to malpractice actions brought against attorneys as well as against physicians is that it is consistent with considerations of public policy.

"Considerations having to do with public policy exert a significant influence in the process of statutory interpretation since the tendency of the courts has always been to favor interpretations which are consistent with public policy.” 2A Sutherland, supra, § 56.01, p 401.

An attorney is called upon by his or her profession to make decisions that involve the exercise of independent professional judgment of essentially the same serious quality as those made by a physician, albeit involving a different expertise. Cf. Kambas, supra, 389 Mich 255-256. In our view, attorneys are deserving of the same protection afforded physicians, surgeons and dentists by the two-year malpractice period of limitations embodied in MCL 600.5805(3); MSA 27A.5805(3).

Affirmed.

Coleman, C.J., and Williams and Fitzgerald, JJ., concurred with Ryan, J.

1 The subsections of MCL 600.5805; MSA 27A.5805 have been renumbered by 1978 PA 495. Since there have been no substantive changes made with respect to the subdivisions relevant to this opinion, we will refer to the subdivisions as numbered by 1961 PA 236, which were effective at the time the parties went to trial in this cause.

2 The trial judge instructed the jury as follows:

"So if. you find that the defendant, Marilynn J. Balardo, discontinued serving the plaintiff as an attorney on or prior to October 13, 1970, then you must find in favor of the defendant and return a verdict of no cause for action.

"Or if you find that the plaintiff knew or discovered by the — or by the exercise of reasonable diligence should have known or discovered the asserted malpractice or negligence on or prior to October 13, 1970, then also you must find in favor of the defendant and return a verdict of no cause for action.

"However, if you find that plaintiff neither knew of the alleged negligence or malpractice of the defendant until December 23, 1972, nor in the exercise of reasonable diligence (pausing) should have known or discovered the alleged negligence or malpractice until December 23, 1972, then the two statutes that I’ve just read to you, in effect as pertaining to limitations of action, do not apply.”

3 MCL 600.5805(7); MSA 27A.5805(7). The relevant subdivision as amended by 1978 PA 495 is MCL 600.5805(8); MSA 27A.5805(8).

4 The relevant subdivision as amended by 1978 PA 495 is MCL 600.5805(4); MSA 27A.5805(4).

5 85 Mich App 20; 270 NW2d 522 (1978).

6 Plaintiff makes an additional argument before this Court. He alleges that his complaint sets forth a cause of action for ordinary negligence as well as for professional malpractice by defendant attorney. Plaintiff contends it was error for the trial court to instruct the jury that the terms negligence and malpractice are interchangeable, thereby depriving plaintiff of a cause of action for ordinary negligence and the benefit of the three-year period of limitations pursuant to MCL 600.5805(7); MSA 27A.5805(7).

We need not decide this issue since it is clear from the record that plaintiff’s counsel failed to object to the trial court’s instructions equating the terms malpractice and negligence. We follow the well-recognized rule that when objections to instructions are not timely made by trial counsel, the matter is not properly before appellate courts. Goodwin v S A Healy Co, 383 Mich 300, 305-306; 174 NW2d 755 (1970); Hunt v Deming, 375 Mich 581, 584-585; 134 NW2d 662 (1965).

7 See Corley v Logan, 35 Mich App 199, 202; 192 NW2d 319 (1971); Basic Food Industries, Inc v Travis, Warren, Nayer & Burgoyne, 60 Mich App 492, 495; 231 NW2d 466 (1975); Berry v Zisman, 70 Mich App 376, 378; 245 NW2d 758 (1976). In Biberstine v Woodworth, 81 Mich App 705, 707; 265 NW2d 797 (1978), aff'd 406 Mich 275, 276; 278 NW2d 41 (1979), both parties agreed the applicable statute of limitations was two years for legal malpractice.

8 See Peters, Legal Malpractice — An Analysis of Michigan Appellate Cases, 57 MSBJ 367, 369 (1978).

In 73 Am Jur 2d, Statutes, § 163, pp 367-368, it has been stated:

"A construction of a statute acted on generally by the bar of the state for many years is entitled to consideration. Indeed, there are cases in which the meaning publicly given a statute by long professional usage has been presumed to be the true one, and regarded as one which should not be lightly changed.”

See Biberstine v Woodworth, supra.

9 This is often referred to as the plain meaning rule. This Court, in Lansing v Lansing Twp, 356 Mich 641, 649; 97 NW2d 804 (1959), explained the rule as follows:

"The express wording of the statute in this case does not fall within the above provisions so as to justify judicial interpretation. Certainly it is plain, unambiguous and not subject to different interpretations by 2 reasonable minds. It is clear, definite, and would be easily understood by even those not trained in the law. The language of this statute, therefore, leaves no room for judicial construction.”

See, also, 73 Am Jur 2d, Statutes, § 194, p 392, and 2A Sutherland, Statutory Construction (4th ed), ch 46.

10 Richardson v Doe, 176 Ohio St 370; 199 NE2d 878 (1964).

11 Kambas v St Joseph’s Hospital of Detroit, 389 Mich 249, 253; 205 NW2d 431 (1973).

12 MCL 600.5838; MSA 27A.5838 provided:

“A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudo-professional capacity as to the matters out of which the claim for malpractice arose.”

13 MCL 600.5838; MSA 27A.5838 as amended by 1975 PA 142 provides:

“(1) A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession, intern, resident, registered nurse, licensed practical nurse, registered physical therapist, clinical laboratory technologist, inhalation therapist, certified registered nurse anesthetist, X-ray technician, hospital, licensed health care facility, employee or agent of a hospital or licensed health care facility who is engaging in or otherwise assisting in medical care and treatment, or any other state licensed health professional, accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudo-professional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.

“(2) An action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed in sections 5805 or 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. The burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise' applicable to the claim shall be on the plaintiff. A malpractice action which is not commenced within the time prescribed by this subsection is barred.”

14 The majority opinion in the Court of Appeals concluded that the amendment to this section, by providing a cause of action in malpractice against nurses, was a legislative response to this Court’s decision in Kambas, supra. While that may be so, we are more inclined to the view that this amendment is some evidence of the legislative intent that health care providers subject to liability for malpractice actions be not limited to physicians, surgeons or dentists. More importantly, however, it is clear that the amendment to § 5838 does not address itself to defining malpractice for purposes of the statute of limitations. See fn 15, infra.

15 Section 5838, as amended by 1975 PA 142, was addressed solely at shortening the judicially created period of discovery so as to better enable medical malpractice insurers to determine their potential losses in a given premium year.

Michigan House of Representatives Analysis, Analysis of Senate Bill 227 (June 25, 1975), states in pertinent part:

"Some persons feel that legislation is needed which will place stricter limits on the time during which a malpractice action can be initiated against health care personnel. These persons believe that the current statutes, combined with certain court rulings, have contributed significantly to the high rates currently charged for malpractice insurance.

"Michigan has a 2-year statutory limit for the initiation of malpractice actions, commencing at the time at which the defendant discontinues treating the plaintiff with respect to the matters out of which the claim arises. However, the courts have rules that an action may be commenced within 2 years of the date upon which the plaintiff discovers, or in the reasonable exercise of diligence should have discovered, the alleged malpractice, even though this may result in the initiation of an action after the 2-year period following the discontinuance of treatment has elapsed. This rule is sometimes known as the 'discovery rule’.

"The bill would place some restrictions upon the time period during which an action based on malpractice could be initiated. Currently, as a result of certain court rulings, the 2-year statute of limitations on such actions begins to run either at the time when the defendant discontinues treatment of the plaintiff or when the plaintiff discovers or should have discovered his/her injury. The bill, however, would provide that an action must be initiated either within the 2-year period following the discontinuance of treatment or within 6 months after the discovery of the injury, whichever is later. The bill would therefore make it easier for insurers to determine their potential losses for a given premium’ year without violating the rights of injured patients who do not discover their injuries until after the period prescribed by the statute of limitations has elapsed.”

16 MCL 600.2912; MSA 27A.2912 provides:

"(1) A civil action for malpractice may be maintained against any person professing or holding himself out to be a member of a state licensed profession. The rules of the common law applicable to actions against members of a state licensed profession, for malpractice, are applicable against any person who holds himself out to be a member of a state licensed profession.”

17 See, also, Leslie v Mollica, 236 Mich 610, 612-613; 211 NW 267 (1926).

18 MCL 600.102; MSA 27A.102 provides:

"This act is remedial in character, and shall be liberally construed to effectuate the intents and purposes thereof.”

19 The title to 1961 PA 236 provides as follows:

"An act to revise and consolidate the statutes, relating to the organization and jurisdiction of the courts of this state; the powers and duties of such courts, and of the judges and other officers thereof; the forms and attributes of civil claims and actions; the time within which civil actions and proceedings may be brought in said courts; pleading, evidence, practice and procedure in civil actions and proceedings in said courts; to provide remedies and penalties for the violation of certain provisions of this act; and to repeal all acts and parts of acts inconsistent with, or contravening any of the provisions of this act.” (Emphasis supplied.)

See, also, Needham, Revised Judicature Act: Special Proceedings and Appeals (Ann Arbor: Institute of Continuing Legal Education, 1962).

20 As Judge Cavanagh in his dissent below said:

"The word 'malpractice’ has long been used to describe an attorney’s misfeasance or nonfeasance of professional duty. This was ordinary usage at common law. See National Savings Bank v Ward, 100 US 195, 198; 25 L Ed 621, 622 (1879). Our statutes have likewise long employed this term (see, e.g., 1857 CL 4016 ['Any Attorney, Solicitor or Counsellor, may be removed or suspended, who shall be guilty of any deceit, malpractice, crime or misdemeanor * * *’]), as have the decisions of our Supreme Court. See In the Matter of Mills, an Attorney, 1 Mich 392, 393-394 (1850).” 85 Mich App 24, fn 1.

21 See 33 MCLA, § 600.2912, Committee Comment, p 659, which states the following:

"The source section pertained only to physicians and surgeons. Note that the broadening of this section does not create a new cause of action. Members of state licensed professions are liable for malpractice at common law, as are unlicensed persons. What this section does is to hold the unlicensed person to the standard of care to which a member of the state licensed profession would be held, instead of to the standard of care of a layman, to which unlicensed persons are held at present.” (Emphasis supplied.)

22 Attorneys may properly be considered members of a state-licensed profession. See MCL 600.901; MSA 27A.901 and State Bar Rule 2 and 3(a).

23 Plaintiff relies on the following language from Kambas:

"The defendant’s suggestion that the action of the Legislature in enacting §§ 2912 and 5838, using the words 'a member of a state licensed profession,’ indicated an intent to extend the benefit of the short malpractice limitation of § 5805 to additional professions other than those originally encompassed by the Judicature Act of 1915 is unfounded.” 389 Mich 254.

24 "Plaintiff cites this language [see fn 23 supra] as establishing that legal malpractice, which was not within the purview of the 1915 malpractice statute, is likewise outside its successor. There are, however, several reasons to question plaintiff’s reading of Kambas.

"First, the issue before the Court in Kambas was whether the statute applied to nurses, not whether it applied to attorneys. Therefore the quoted language cannot be taken as a holding that attorneys are without the statute. Although the Court did address itself to legislative history and the purpose behind the Judicature Act’s revisions, it might well have used less sweeping language had it considered the history of legal malpractice actions and their place in the revised statutory scheme.

"Second, the Kambas analysis which produced the conclusion that nurses are not covered by the short malpractice statute yields a different result when applied to attorneys. Unlike nurses, attorneys were and continue to be liable at common law for their malpractice. Like physicians, attorneys are required to exercise independent judgment as to what course of action will best serve their clients’ interests.

"Finally, Ohio, whose approach to the Kambas issue our Supreme Court found so 'persuasively appropriate’, applies its short malpractice statute to actions against attorneys. Galloway v Hood, 69 Ohio App 278; 43 NE2d 631 (1941).” (Emphasis supplied.) 85 Mich App 28-29.

25 In Lansing v Lansing Twp, supra, 649, this Court said:

“A statute is not open to construction as a matter of course, but only where the language used in the statute requires interpretation— where it is ambiguous or where 2 or more constructions can be placed upon it, where it is of such doubtful or obscure meaning that reasonable minds might be uncertain or disagree as to its meaning. 'A plain and unambiguous statute is to be applied, and not interpreted, since such a statute speaks for itself, and any attempt to make it clearer is a vain labor and tends only to obscurity.’ 50 Am Jur, Statutes, § 225, p 207.”

26 1915 PA 314.

27 Plaintiff relies on two cases that concern rules of construction with respect to revised statutes. Plaintiff cites State ex rel Johnson v Broderick, 75 ND 340, 368-369; 27 NW2d 849, 864 (1947), for the following rule of construction:

" 'A mere change of phraseology, or punctuation, or the addition or omission of words in the revision or codification of statutes, does not necessarily change the operation or effect thereof, and will not be deemed to do so unless the intent to make such change is clear and unmistakable. Usually a revision of statutes simply iterates the former declaration of legislative will. No presumption arises from changes of this character that the revisers or the legislature in adopting the revision intended to change the existing law; but the presumption is to the contrary, unless an intent to change it clearly appears.’ 59 CJ, pp 894, 895.”

A comparison between the former statute and the later revision in Broderick reveals only minor phraseology and punctuation changes in the latter. The revision is thus consistent with the above cited rule of statutory construction.

Similarly, in United States v Thompson, 319 F2d 665 (CA 2, 1963), the court held the change in wording from "trial of any criminal action” to "criminal proceeding” did not effect a change in meaning where the reviser’s notes expressly stated that any changes other than those specifically mentioned were only changes in phraseology.

We refer plaintiff to the title of 1961 PA 236, fn 19 supra, which includes an express repeal of all acts inconsistent with the RJA. See, also, People v Gould, 345 Ill 288, 312; 178 NE 133, 144 (1931), wherein the court stated the following:

"A revision of the law on any subject is a re-statement of the law on that subject in a correlated or improved form, which is intended as a substitute for the law as previously stated and displaces and repeals the former laws relating to the same subject and within the purview of the revising statute. It implies a re-examination of the law, and where a later statute covers the whole subject matter of a previous statute or previous statutes and embraces new provisions which plainly show that it was intended as a substitute for the first, the later statute will operate as a repeal of the former statute or statutes even though not in all respects repugnant to them.”

28 We view the omission of the words "physicians, surgeons or dentists” as removing words that would otherwise limit the scope of the common-law definition of malpractice. It is erroneous to assume that the omission of three nouns from the statute thereafter broadens the definition of malpractice to encompass every conceivable state-licensed profession. Instead, the actions of the Legislature in omitting the words "physicians, surgeons or dentists” evidences an intent to extend the benefit of the two-year malpractice statute of limitations to those groups that could otherwise be sued for malpractice at common law. This conclusion is supported by the fact that the RJA is a statute affecting procedural rights; substantive rights are determined by the common law. Connelly v Paul Ruddy’s Co, supra. See, also, Equitable Trust Co v Milton Realty Co, supra, wherein the Court stated:

"In People v Covelesky, 217 Mich 90, 100 [185 NW 770 (1921)], it was said:

" 'A well-recognized rule for construction of statutes is that when words are adopted having a settled, definite, and well-known meaning at common law it is to be assumed they are used with the sense and meaning which they had at common law unless a contrary intent is plainly shown.’ ”

29 Revisions are encompassed within the broad terms, amendatory acts or amendments. See 1A Sutherland, Statutory Construction (4th ed), § 22.01, p 105. Therefore, all references to amendments are equally applicable to revisions.

This Court has said the following with respect to omissions:

"The provision not re-enacted was the only one in the entire act which authorized and fixed a primary election of city officers in Grand Rapids. It is not the province of the court to inquire why the legislature struck such provision out of the law. It is the province of the court to construe the legislative enactment. There is now no provision in this law for holding such primaries.” Ellis v Boer, 150 Mich 452, 455; 114 NW 239 (1907).

"The legislature has not seen fit-to require the making of a report setting forth specifically the findings of fact on which the conclusion is based. We may not read into the law a requirement that the lawmaking body has seen St to omit.” (Emphasis supplied.) In re HurdMarvin Drain, 331 Mich 504, 509; 50 NW2d 143 (1951).

30 In Colonial Pipeline Co v Clayton, 275 NC 215, 227; 166 SE2d 671, 679-680 (1969), the court said the following with respect to an amended statute that added two words:

"The fact that the legislature amended the definition of 'cost price’ in 1967 to list cash discounts among the items not to be deducted when calculating actual cost is, nothing else appearing, a strong indication that the General Assembly considered such discounts deductible prior to the amendment. In case of an isolated, independent amendment to the tax law, as here, the presumption that a change in substance — not a clarification — was intended is fairly strong.” Similarly, the amendment omitting three words from the instant statutory provision fairly raises a presumption of a change in substance.

31 1905 PA 168.

32 See 34 MCLA, § 600.5805, Historical Note, p 822.

33 A minor change was made in 1915. "[P]hysicians, surgeons and dentists” was amended to read "physicians, surgeons or dentists”. 1915 PA 314, ch 9, § 13. We attach no significance to what was manifestly a stylistic, nonsubstantive amendment.

34 34 MCLA, § 600.5805, Committee Comment, p 822.

35 We count the tort actions against sheriffs and constables as each being one cause of action.

36 The source section is 1948 CL 609.13 for all actions except those which may be brought against constables, which is 1948 CL 41.81.

37 See Needham, Revised Judicature Act: Special Proceedings and Appeals (ICLE, 1962), § 13.410, p 557, wherein the author lists periods of limitation for various remedies, including malpractice. We note no indication that members of the medical profession are to be subject to a different period of limitation than are members of the legal profession.

"Malpractice: 2 years, RJA § [5805(3)]; accrues on discontinuance of treatment or service as to matters out of which claim arose, RJA § 5838.”

38 73 Am Jur 2d, Statutes, § 330, pp 474-475, states the following:

"The announced object or report of a legislative commission appointed for the purpose of investigating the laws generally, or the laws on a specified subject, and of recommending any desirable changes, may be taken into consideration for the purpose of determining the meaning of statutes submitted by them to, and adopted by, the legislature. Such report, however, is not controlling, and the rule does not prevail where the language used in the statute is clear and unambiguous:’’ (Emphasis supplied.)