PHYLLIS WAGNER V NABIL WEHBE
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STATE OF MICHIGAN
COURT OF APPEALS
PHYLLIS WAGNER and WAYNE WAGNER,
UNPUBLISHED
March 27, 1998
Plaintiffs-Appellants,
v
NABIL WEHBE, D.O., RUTH KOZLOWSKI, D.O.,
WOODLAND MEDICAL CENTER, SAAD
SABBAGH, M.D., and HURON VALLEY
HOSPITAL,
No. 198133
Oakland Circuit Court
LC No. 96-515972 NH
Defendants-Appellees.
Before: Holbrook, Jr., P.J., and Michael J. Kelly and Gribbs, JJ.
MEMORANDUM.
In this medical malpractice action, plaintiffs appeal as of right from the trial court’s order
granting summary disposition to defendants on the ground that the action was barred by the statute of
limitations. We affirm. This case is being decided without oral argument pursuant to MCR 7.214(E).
The August 1994 notice of intent delivered by plaintiff’s first counsel to defendants satisfied the
notice requirements of MCL 600.2912b(1), (2) and (4); MSA 27A.2912b(1), (2) and (4), for
purposes of initiating any tolling period in favor of plaintiffs, regardless of whether it sufficed to operate
against defendants. Moreover, the August 1994 notice of intent, and not the July 1995 notice of intent
delivered to defendants by plaintiffs second counsel, constituted the “initial notice” within the meaning of
MCL 600.2912b(6); MSA 27A.2912b(6), because it was delivered to defendants first in time. By
operation of MCL 600.5856(d); MSA 27A.5856(d), the August 1994 notice of intent did not toll the
running of the statute of limitations during the notice period because the 182-day notice period attending
the August 1994 notice of intent expired before the running of the statute of limitations. The subsequent
July 1995 notice of intent is precluded from tolling the statute of limitations. MCL 600.2912b(6); MSA
27A.2912b(6). Accordingly, plaintiffs’ action is time-barred.
Plaintiffs failed to raise their equitable estoppel claim below and, therefore, we need not address
it. Auto Club Ins Ass’n v Lozanis, 215 Mich App 415, 421; 546 NW2d 648 (1996). Nevertheless,
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on the record facts, we find plaintiffs’ claim that defendants concealed a material fact from plaintiffs
untenable. Lothian v City of Detroit, 414 Mich 160, 177-179; 324 NW2d 9 (1982). Moreover, the
record lacks any evidence that defendants engaged in either intentional or negligent conduct designed to
induce plaintiffs to refrain from bringing a timely action. Cincinnati Ins Co v Citizens Ins Co, 454
Mich 263; 562 NW2d 648 (1997). Finally, the notice process of MCL 600.2912b is not designed to
elicit such non-factual defenses.
Affirmed.
/s/ Donald E. Holbrook, Jr.
/s/ Michael J. Kelly
/s/ Roman S. Gribbs
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