ESTATE OF JEAN CAROL BENJAMIN V BOTSFORD GENERAL HOSPITAL
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STATE OF MICHIGAN
COURT OF APPEALS
Estate of JEAN CAROL BENJAMIN, Deceased,
by DESIREE L. KIMPSON, Personal
Representative,
UNPUBLISHED
October 9, 2007
Plaintiff-Appellee,
v
BOTSFORD GENERAL HOSPITAL and JOHN
PARMELY, D.O.,
No. 269253
Oakland Circuit Court
LC No. 2002-044309-NH
Defendants-Appellants.
Before: Bandstra, P.J., and Talbot and Fort Hood, JJ.
PER CURIAM.
In this wrongful death medical malpractice action, defendants appeal as on leave granted1
from a circuit court order denying their motion for summary disposition under MCR 2.116(C)(7)
(statute of limitations). We reverse and remand. This appeal is being decided without oral
argument pursuant to MCR 7.214(E).
We review de novo the circuit court’s summary disposition ruling.
Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001).
Beaudrie v
Under MCR 2.116(C)(7), summary disposition is proper when a claim is
barred by the statute of limitations. In determining whether summary disposition
was properly granted under MCR 2.116(C)(7), this Court “consider(s) all
documentary evidence submitted by the parties, accepting as true the contents of
the complaint unless affidavits or other appropriate documents specifically
contradict them.” [Waltz v Wyse, 469 Mich 642, 647-648; 677 NW2d 813 (2004),
quoting Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001).]
1
Benjamin v Botsford Gen Hosp, 474 Mich 1085; 711 NW2d 340 (2006).
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“Whether a period of limitations applies to preclude a party’s pursuit of an action constitutes a
question of law that we [also] review de novo.” Detroit v 19675 Hasse, 258 Mich App 438, 444;
671 NW2d 150 (2003).
The period of limitation governing a wrongful death action depends on the period of
limitation applicable to the underlying theory of liability. Lipman v William Beaumont Hosp,
256 Mich App 483, 490; 664 NW2d 245 (2003). A medical malpractice plaintiff has two years
from the date the cause of action accrued in which to file suit. MCL 600.5805(6).2 A medical
malpractice claim generally “accrues at the time of the act or omission that is the basis for the
claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has
knowledge of the claim.” MCL 600.5838a(1).3 The circuit court’s finding that the date of death
controls accrual in wrongful death actions premised on medical malpractice ignores the plain
language of § 5838a(1), which “reflects the Legislature’s desire to focus the accrual date of
medical malpractice claims on the occasion of the act or omission complained of . . . .” McKiney
v Clayman, 237 Mich App 198, 203; 602 NW2d 612 (1999) (emphasis added). Because the
alleged negligence of defendants occurred between December 29, 1999, the date of the
decedent’s admission to Botsford Hospital and her allegedly unsuccessful thrombectomy, and
January 3, 2000, the date of the operation to remove part of her colon, which Dr. Parmely
purportedly approved, her malpractice claims accrued on these dates.
Because the decedent’s medical malpractice claims accrued by January 3, 2000, at the
latest, the two-year period of limitation provided in MCL 600.5805(6) extended through January
3, 2002, at the latest. Vernon Benjamin, the original personal representative, failed to file within
this two-year period either a mandatory notice of his intent to sue defendants, MCL 600.2912b,
or a complaint on the estate’s behalf.
But Benjamin’s appointment as personal representative on August 17, 2000, gave him
until August 17, 2002, to commence this action within the wrongful death saving period. MCL
600.5852. Benjamin gave notice of his intent to sue defendants on April 4, 2002, but this notice
did not toll the wrongful death saving period pursuant to MCL 600.5856(c). Waltz, supra at 648651, 655. Accordingly, Benjamin’s filing of the action on October 3, 2002, occurred nearly six
months after the wrongful death saving period had expired.
The estate maintains that Waltz should not apply retroactively. Controlling decisions of
this Court have determined, however, that (1) the Supreme Court’s holding in Waltz “applies
retroactively in all cases,” Mullins v St Joseph Mercy Hosp, 271 Mich App 503, 509; 722 NW2d
666 (2006), lv gtd 477 Mich 1066 (2007), and (2) equitable or “judicial tolling should not
2
When the decedent’s cause of action accrued, subsection (6) was codified as subsection (4).
The analysis in this report references the current subsection.
3
Although MCL 600.5838a(2) gives a medical malpractice plaintiff until “6 months after the
plaintiff discovers or should have discovered the existence of the claim” to file suit, the
discovery rule is not at issue in this case.
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operate to relieve wrongful death plaintiffs from complying with Waltz’s time restraints,”4 Ward
v Siano, 272 Mich App 715, 720; 730 NW2d 1 (2006), lv in abeyance ___ Mich ___; 729 NW2d
213 (2007).
The estate also contends that plaintiff’s appointment as its successor personal
representative on July 16, 2004, afforded her a new wrongful death saving period in which to
pursue legal action, which she timely did by filing a first amended complaint in August 2004.
The Michigan Supreme Court in Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich
29, 33; 658 NW2d 139 (2003), determined that MCL 600.5852 “clearly allows an action to be
brought within two years after letters of authority are issued to the personal representative.”
Because § 5852 “does not provide that the two-year period is measured from the date letters of
authority are issued to the initial personal representative,” the Supreme Court held that the
successor personal representative could timely file suit within two years after receiving his letters
of authority, and “‘within 3 years after the period of limitations ha(d) run.’” Id., quoting § 5852.5
This Court has distinguished Eggleston and declined to apply it, however, in cases like
this involving the original personal representative’s untimely filing of a complaint. See McLean
v McElhaney, 269 Mich App 196, 201-202; 711 NW2d 775 (2005), lv in abeyance ___ Mich
___; 728 NW2d 867 (2007) (finding the plaintiff copersonal representatives’ medical
malpractice compliant untimely and rejecting their Eggleston-based assertion “that the trial court
should have permitted a voluntary dismissal of [the] plaintiff’s claims without prejudice so that a
new personal representative could have been appointed to file suit on behalf of [the] estate”);
McMiddleton v Bolling, 267 Mich App 667, 671-674; 705 NW2d 720 (2005) (rejecting the
contention that “the subsequent appointment of the successor personal representative reviewed
the complaint that the original personal representative filed untimely, i.e., more than two years
after the original personal representative appointed.”)
The Michigan Supreme Court’s recent decision in Washington v Sinai Hosp of Greater
Detroit, 478 Mich 412; 733 NW2d 755 (2007), further undermines the notion that
notwithstanding an original personal representative’s filing of an untimely complaint, a successor
personal representative has the authority to pursue an action against the same defendants. In
Washington, the original personal representative filed an untimely complaint that the circuit
court dismissed pursuant to MCR 2.116(C)(7), and the plaintiff, a later-appointed successor
personal representative, also filed a complaint on the estate’s behalf. Id. at 415. The Supreme
Court held that res judicata barred the successor’s action. Id. at 417-422. Concerning the first
4
Furthermore, as summarized in Farley v Advanced Cardiovascular Health Specialists, PC, 266
Mich App 566, 576 n 27; 703 NW2d 115 (2005), both the Michigan Supreme Court and this
Court have rejected the notion that a retroactive application of Waltz, in a manner that renders an
estate’s commencement of suit as untimely, qualifies as an unconstitutional abbreviation of the
period for filing suit.
5
“[T]he three-year ceiling in the wrongful death saving provision is not an independent period in
which to file suit; it is only a limitation on the two-year saving provision itself. Therefore, the
fact that the three-year ceiling was not yet reached when [the plaintiff] filed suit is irrelevant.”
Farley, supra at 575.
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res judicata element, decision of a prior action on the merits, the Supreme Court found that the
circuit court’s order dismissing the original complaint under subrule (C)(7) amounted to a
decision on the merits, explaining that “[i]n the absence of any language in an order of dismissal
limiting the scope of the merits decided,” or language specifying that the order is without
prejudice, MCR 2.504(B)(3) “plainly provides that the order operates as an adjudication of the
entire merits of a plaintiff’s claim.” Id. at 419. With respect to the second res judicata element,
the Supreme Court observed that the successor personal representative had privity with the
original personal representative because they both represented the same legal interest, that of the
estate. Id. at 421-422. Regarding the last res judicata element, that the matter raised in the
second case was or could have been resolved in the first, the Supreme Court explained that the
inquiry was governed by resort to a transactional test, which “provides that the assertion of
different kinds or theories of relief still constitutes a single cause of action if a single group of
operative facts give rise to the assertion of relief.” Id. at 420 (internal quotation omitted). The
Supreme Court concluded that because the successor’s complaint mirrored that filed by the
original representative, “the matter asserted in the second suit was raised in the first.” Id. at 420421.
In summary, the circuit court erred by denying defendants summary disposition pursuant
to MCR 2.116(C)(7) because (1) Vernon Benjamin untimely filed the initial complaint beyond
both the medical malpractice period of limitation and the wrongful death saving period, and (2)
plaintiff’s appointment as the estate’s successor personal representative did not resuscitate this
untimely filed action.
We reverse and remand for entry of an order granting defendants summary disposition
pursuant to MCR 2.116(C)(7). We do not retain jurisdiction.
/s/ Richard A. Bandstra
/s/ Michael J. Talbot
/s/ Karen M. Fort Hood
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