DOUGLAS SHANES V SHAHZAD A SHAIKH MD
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STATE OF MICHIGAN
COURT OF APPEALS
DOUGLAS SHANES, Personal Representative of
the ESTATE OF MARCELLA SHANES,
UNPUBLISHED
February 20, 2007
Plaintiff-Appellant,
v
SHAHZAD A. SHAIKH, M.D. and W.A. FOOTE
MEMORIAL HOSPITAL,
No. 264651
Jackson Circuit Court
LC No. 02-000044-NH
Defendants,
and
DR. JAVAID BASHIR, DOCTORS HOSPITAL
OF JACKSON, DR. LOWELL FISHER, and
NAVEED SIDDIQI, M.D.,
Defendants-Appellants.
Before: Whitbeck, C.J., and Bandstra and Schuette, JJ.
PER CURIAM.
In this medical malpractice action, plaintiff Douglas Shanes, personal representative of
the estate of Marcella Shanes,1 appeals by leave granted the trial court’s grant of partial summary
disposition to defendants Dr. Javaid Bashir, Doctors Hospital of Jackson, Dr. Lowell Fisher, and
Dr. Naveed Siddiqi (collectively “the doctors”). We reverse and remand.
I. Basic Facts And Procedural History
The decedent, Marcella Shanes, died July 30, 2000, as a result of a small bowel
obstruction. On October 9, 2000, Nancy VanDam, the decedent’s daughter, was appointed
personal representative of her mother’s estate and was issued letters of authority. On January 8,
2002, VanDam filed a complaint against defendants Shahzad A. Shaikh, M.D. and W.A. Foote
1
Hereinafter, unless otherwise indicated, use of the surname “Shanes” shall refer solely to
plaintiff Douglas Shanes.
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Memorial Hospital (Foote Hospital), alleging that Marcella Shanes died as a result of their
medical malpractice. However, VanDam later filed a petition for resignation as personal
representative, asserting that she was no longer emotionally able to act as the personal
representative. Thus, on May 23, 2003, Shanes, the decedent’s son, was appointed as successor
personal representative. On March 16, 2004, after filing the necessary notices of intent,2 Shanes
filed an amended complaint, naming the doctors as defendants.
The doctors moved for summary disposition, arguing that Shanes’ amended complaint
was time barred because it was not filed within the two-year period following VanDam’s
appointment as personal representative.3 The trial court granted summary disposition to the
doctors, reasoning that Shanes’ reliance on Eggleston v Bio-Medical Applications,4 was
misplaced because the instant action was factually distinguishable. More specifically, the trial
court found that the facts of the instant action differed from Eggleston because, in that case, the
successor personal representative was appointed before the original two-year period expired.
Here, the two-year period expired while VanDam was the personal representative, and she failed
to file suit against the doctors during that time, so “the case die[d].” The trial court continued,
Now, can we then wait until October 9 of 2002 until May 23rd of 2003
and say suddenly there’s a reviving of the cause of action, which is what [Shanes
is] claiming, that somehow you revive it somehow by this second appointment.
To my mind there is a valid reason [why] we have a statute of limitations, because
it’s to prevent stale claims.
If Mr. Shanes decides he doesn’t want to act then does he have another
brother who’s going to act and does that brother have a right to bring in someone
else that was in the hospital, a nurse or someone else? The idea is that stale
claims have to be barred at some point in time . . . . In my mind, the statute of
limitations expired on October 9, 2002 and it was not revived just because Mr.
Shanes was appointed in May of 2003.
But, with respect to Shaikh and Foote Hospital, the trial court held that Shanes’ amended
complaint was not time barred “because there’s entitlement to amend an answer at any time and
have it relate back.”
Shanes filed a delayed application for leave to appeal, which a panel of this Court
granted.5 A stay of the trial court proceedings was granted with respect to the doctors, pending
the outcome of this appeal.
2
MCL 600.2912b.
3
MCL 600.5852.
4
Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29; 658 NW2d 139 (2003).
5
Shanes v Bashir, unpublished order of the Court of Appeals, entered December 9, 2005 (Docket
No. 264651).
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II. Summary Disposition
A. Standard Of Review
We review de novo a trial court’s decision on a motion for summary disposition under
MCR 2.116(C)(7).6 In determining whether a party is entitled to judgment as a matter of law
pursuant to MCR 2.116(C)(7), “a court ‘must accept as true a plaintiff’s well-pleaded factual
allegations, affidavits, or other documentary evidence and construe them in the plaintiff’s
favor.’”7 Where there are no factual disputes, and reasonable minds cannot differ on the legal
effects of the facts, the decision regarding whether a plaintiff’s claim is barred by the statute of
limitations is a question of law, which we also review de novo.8
B. Successor Personal Representatives And Claims Against New Parties
1. Applicable Time Limitations
In general, a malpractice action must be brought within two years of the date of accrual to
be timely.9 However, there exists a statutory savings provision applicable when an action is
brought on behalf of a deceased person.10 That provision, known as the wrongful death savings
statute, provides:
If a person dies before the period of limitations has run or within 30 days
after the period of limitations has run, an action which survives by law may be
commenced by the personal representative of the deceased person at any time
within 2 years after letters of authority are issued although the period of
limitations has run. But an action shall not be brought under this provision unless
the personal representative commences it within 3 years after the period of
limitations has run.
Here, there is no question that VanDam’s original complaint, filed on January 8, 2002,
was timely under both the generally applicable statute of limitations and the savings provision.
Further, upon his appointment while the original, timely filed complaint was pending, Shanes, as
6
DiPonio Construction Co, Inc v Rosati Masonry Co, Inc, 246 Mich App 43, 46; 631 NW2d 59
(2001).
7
Brennan v Edward D Jones & Co, 245 Mich App 156, 157; 626 NW2d 917 (2001), quoting
Jackson Co Hog Producers v Consumers Power Co, 234 Mich App 72, 77; 592 NW2d 112
(1999).
8
DiPonio, supra at 47; Brennan, supra at 157.
9
MCL 600.5805(6).
10
MCL 600.5852.
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successor personal representative, stepped into VanDam’s shoes.11 Accordingly, once appointed,
Shanes had the same powers and duties as VanDam would have had.12
2. Amendments To Complaints
An amendment generally relates back to the date of the original filing if the new claim
asserted arises out of the conduct, transaction, or occurrence set forth in the original pleading.13
Had she not been replaced, VanDam could have freely amended her original complaint as it
pertained to Shaikh and Foote Hospital, the originally named parties.14 Therefore, the trial court
correctly held that Shanes was also entitled to amend the complaint as it pertained to Shaikh and
Foote Hospital.
However, although amendments generally relate back to the date of the original filing for
statute of limitation purposes, the relation-back doctrine does not apply to the addition of new
parties.15 Commencement of an action against one party does not operate to toll the running of
the applicable period of limitation with respect to other persons not named as defendants in that
suit.16 The statutory period continues to run until the time of the filing of the amendment; thus,
the statute of limitations continues to run in favor of an alleged joint tortfeasor until it is made a
party to the suit.17 Accordingly, where a defendant is brought into an action for the first time
through the filing of an amended complaint, the filing of the amendment constitutes the
commencement of the action against that defendant.18 And that party subsequently brought into
the action may claim that he or she is not liable because the statute of limitations has expired.19
To overcome a statute of limitations defense brought by a later-added party, a plaintiff
may counter that the new defendant is a necessary party, that the new party acquired its interest
in the subject matter of the suit “‘pendente lite,’” or that the amendment “‘merely corrects a
11
MCL 700.3613; Boodt v Borgess Medical Ctr, ___ Mich ___; ___ NW2d ___ (Docket No.
266217, Issued Oct. 31, 2006) (“[W]here the predecessor representative actually filed a
complaint, and a successor representative is appointed while the complaint is pending, the
successor must be substituted in the already-commenced claim.”).
12
MCL 700.3613; see also MCL 700.3701 and MCL 700.3716.
13
MCR 2.118(D).
14
MCR 2.118(A)(2); Ben P Fyke & Sons v Gunter Co, 390 Mich 649, 656; 213 NW2d 134
(1973).
15
Hurt v Michael’s Food Center, Inc, 220 Mich App 169, 179; 559 NW2d 660 (1996).
16
Ray v Taft, 125 Mich App 314, 319; 336 NW2d 469 (1983).
17
Forest v Parmalee (On Rehearing), 60 Mich App 401, 406-407; 231 NW2d 378 (1975), aff’d
on other grounds, 402 Mich 348 (1978).
18
Id. at 406.
19
Id.
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defect in the original proceeding,’”20 such as when the right party is served under a wrong name
or in an incorrect capacity.21 In those situations, courts have deemed the applicable statute of
limitations tolled because the true defendant had notice of the litigation and was not prejudiced
by the amendment.22 However, none of these exceptions apply here.
Here, VanDam was appointed as personal representative on October 9, 2000. Thus, there
can be no dispute that, had she not been replaced, the claims against the doctors would have been
time barred because VanDam only had until October 9, 2002 to add any additional alleged joint
tortfeasors not named as defendants in the originally-filed complaint. But VanDam was
replaced, so the pertinent question in this appeal is whether it was permissible for Shanes, as
successor personal representative, to add the doctors as additional parties to the original action
filed by the predecessor personal representative.
3. Interplay Between Time Limitations And Amendments Adding New Parties
The doctors argue that Shanes’ claims against them were untimely because they were not
filed until after the time period during which VanDam could have timely filed those claims:
within two years of her appointment as personal representative. In other words, the doctors
contend that because, had VanDam not been replaced, it would have been untimely for her to add
the doctors to the existing action, and, because Shanes stepped into VanDam’s shoes,23 it was
similarly untimely for him to add the doctors.24
Relying on Eggleston, Shanes contends that the plain language of MCL 600.5852
provides that his appointment as successor personal representative commenced a new two-year
savings period. In Eggleston, the decedent’s widower was appointed temporary personal
representative and was issued letters of authority on April 4, 1997, but he died several months
later, on August 20, 1997, without having filed a claim.25 The decedent’s son was then
appointed successor personal representative and was issued letters of authority on December 8,
1998. He filed a complaint against the defendant on June 9, 1999. The issue in the case was
“whether a successor personal representative has two years after appointment to file an action on
behalf of an estate under the wrongful death saving statute, . . . or whether the two-year period is
measured from the appointment of the initial personal representative.”26 Interpreting the plain
language of the wrongful death saving statute, the Michigan Supreme Court held that a successor
20
Id., quoting 8 ALR2d 6, 112.
21
Ray, supra at 320.
22
Id.
23
MCL 700.3613.
24
See McLean v McElhaney, 269 Mich App 196; 711 NW2d 775 (2005) and Estate of Harris v
Bolling, 267 Mich App 667; 705 NW2d 720 (2005).
25
Eggleston, supra at 31.
26
Id. at 30.
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personal representative has two years after issuance of his letters of authority to file an action on
behalf of the estate.27 Thus, Shanes argues that his amended complaint adding the doctors was
timely because it was filed within two years of the issuance of his letters of authority.
Although the numerous post-Eggleston decisions have come to many differing
conclusions on the ability of a successor personal representative to pursue an action,28 we
conclude that this case presents yet another distinct set of circumstances warranting a unique
application of the interplay between the applicable statutes of limitations, the Estate and
Protected Individuals Code (EPIC), and the law governing the amendment of complaints to add
new parties.
It is important to clarify that this case is distinguishable from a significant portion of the
cases dealing with successor personal representatives because this case does not involve the
filing of an untimely complaint by the original personal representative. That is, this case is
factually distinguishable from those types of cases because the original complaint here was
undisputedly timely. Thus, this case is distinguishable from those cases in which a successor
personal representative attempts to continue an action by simply reviving or adopting a
previously filed, untimely complaint.29 Similarly, this case is also distinguishable from those
cases in which a successor personal representative attempts to file a new action to overcome a
predecessor’s filing of an untimely action.30 Stated differently, by filing his amended complaint
Shanes was not attempting to circumvent his predecessor’s filing of an untimely suit against the
doctors because (1) the original complaint was timely, and (2) the doctors were not named in the
original complaint.
As explained, where a defendant is brought into an action for the first time through the
filing of an amended complaint, the filing of the amendment constitutes the commencement of
the action against that defendant.31 Thus, although Shanes’ filing was submitted as an
“amended” complaint, that filing effectively served as an original complaint against the doctors.
And, as explained, that filing is be governed by the applicable period of limitation, independent
of the original filing.32 Accordingly, we must determine what the applicable period of limitation
is.
27
Id. at 33.
28
See Boodt, supra at ___ (Whitbeck, C.J., dissenting).
29
See Mullins v St Joseph Mercy Hosp, 269 Mich App 586; 711 NW2d 448, vacated in part and
aff’d in part 271 Mich App 503 (2006); Estate of Harris, supra at 668 (holding that “the
appointment of a successor personal representative cannot revive a complaint that the
predecessor personal representative filed more than two years after being appointed.”).
30
See McLean, supra; King v Briggs, unpublished opinion per curiam of the Court of Appeals,
issued July 12, 2005 (Docket Nos. 259136 and 259229).
31
Forest, supra at 406.
32
Ray, supra at 319; Forest, supra at 406-407.
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The doctors argue that the applicable limitations period began to run with VanDam’s
appointment as personal representative. Shanes argues that the applicable period began to run
with his appointment as successor personal representative. We agree with Shanes and conclude
that this case is governed by the Eggleston rule. In Eggleston, the original personal
representative died without taking any action against the defendant. The successor personal
representative filed suit, which our Supreme Court held was timely filed within two years after
the successor personal representative’s appointment. We acknowledge the doctors’ argument
that under MCL 700.3613 a successor personal representative steps into the shoes of the
predecessor, but Eggleston did not need to address the ramifications of MCL 700.3613 given that
the original personal representative never filed an action before he died and, therefore, there was
no prior action in which to substitute the successor personal representative. In other words,
because the original personal representative took no action against the defendant, there were no
acts to ratify, or no shoes into which to step. The same rationale applies here. Irrespective of
VanDam’s action against Shaikh and Foote Hospital, Shanes was entitled to his own two-year
savings period in which to commence an action against the doctors.
Shanes was appointed as successor personal representative on May 23, 2003. Under
MCL 600.2825, he had until May 23, 2005 to commence an action against the doctors. Shanes
filed the amended complaint naming the doctors as defendants on March 16, 2004. Thus, we
conclude that Shanes’ amended complaint constituted a timely filing against the doctors, and the
trial court erred in granting summary disposition in favor of the doctors.
Reversed and remanded for further proceedings consistent with this opinion. We do not
retain jurisdiction.
/s/ William C. Whitbeck
/s/ Richard A. Bandstra
/s/ Bill Schuette
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