FLORENCE SHORT V DUANE WATERS HOSPITAL
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STATE OF MICHIGAN
COURT OF APPEALS
FLORENCE SHORT, Personal Representative of
the Estate of JONATHON CROSS, Deceased,
UNPUBLISHED
December 20, 2005
Plaintiff-Appellant,
v
AUDBERTO C. ANTONINI, M.D., ADDIE JO
BRISKIE, R.N., and ANITA YOUNG, R.N.,
No. 256423
Jackson Circuit Court
LC No. 03-002370-NI
Defendants-Appellees,
and
DUANE WATERS HOSPITAL and OAKS
CORRECTIONAL FACILITY,
Defendants.
Before: Kelly, P.J. and Meter and Davis, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting summary disposition to
Audberto C. Antonini, M.D. under MCR 2.116(C)(7) and to Addie Jo Briskie, R.N. and Anita
Young, R.N. under MCR 2.116(C)(6). We affirm.
Plaintiff was appointed as personal representative of decedent on November 11, 2000,
after decedent’s death on May 11, 2000. On October 1, 2002, plaintiff sent to all defendants a
notice of intent to file a medical malpractice claim, MCL 600.6912b. She then filed a complaint
in United States District Court against Briskie and Young alleging a 42 USC § 1983 claim
alleging deliberate indifference to decedent’s extreme medical needs, and intentional deprivation
of required medical care and treatment. Plaintiff then filed her complaint initiating this action on
April 21, 2003. The federal claim was dismissed on July 16, 2003, but plaintiff appealed. That
appeal was still pending when the trial court heard defendants’ motions to dismiss.
Plaintiff first argues that the trial court erred in granting Antonini’s motion for summary
disposition based on the statute of limitations by misinterpreting our Supreme Court’s decision in
Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004). We disagree. This Court reviews rulings
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on motions for summary disposition de novo. Smith v Globe Life Ins Co, 460 Mich 446, 454;
597 NW2d 28 (1999).
In Farley v Advanced Cardiovascular Health Specialists PC, 266 Mich App 566, 574;
703 NW2d 115 (2005), this Court held that, according to Waltz, the wrongful death saving
provision, MCL 600.5852, was not tolled by the notice tolling provision, MCL 600.5856(d). In
Farley, the plaintiff filed the notice of intent after the original statutory limitations period had
expired. She also filed her complaint after two years from the date the letters of authority were
issued. The procedural facts of this case are virtually identical to those in Farley. Plaintiff also
argues that Waltz should only be applied prospectively. However, this contention was already
rejected in Ousley v McLaren, 264 Mich App 486; 691 NW2d 817 (2004).1 Accordingly, we
conclude that the trial court did not err in applying Waltz and dismissing plaintiff’s claims
against Antonini.
Plaintiff also contends that the trial court erred in granting Briskie’s and Young’s motion
for summary disposition under MCR 2.116(C)(6) because her federal claims were not the same
or substantially the same claims presented in this action. Summary disposition under MCR
2.116(C)(6) is proper where “resolution of either action will require examination of the same
operative facts.” JD Candler Roofing Co, Inc v Dickson, 149 Mich App 593, 600-601; 386
NW2d 605 (1986). Here, resolution of the state and federal claims requires examination of the
same operative facts. In both, the essential question is whether the decedent received adequate
medical care. Therefore, the trial court properly granted summary disposition in favor of Briskie
and Young.
Affirmed.
/s/ Kirsten Frank Kelly
/s/ Patrick M. Meter
1
Leave to appeal was denied by our Supreme Court. Ousley v MacLaren, 472 Mich 927; 697
NW2d 525 (2005). Moreover, our Supreme Court has directed this Court to give the Waltz
holding full retroactive application in at least two other cases. See, Evans v Hall, 472 Mich 929;
697 NW2d 525 (2005) and Forsyth v Hopper, 472 Mich 929, 697 NW2d 525 (2005).
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