JODIE VEGA V LAKELAND HOSPITALSAnnotate this Case
STATE OF MICHIGAN
COURT OF APPEALS
JODIE VEGA, Conservator of the Estate of
JEFFREY HURLEY, a Minor,
July 28, 2005
LAKELAND HOSPITALS AT NILES AND ST.
JOSEPH, INC., ST. JOSEPH MEDICAL
ASSOCIATION, P.C. and BETH VANDERAH
and MICHAEL SPEERS, Co-Personal
Representatives of the Estate of DAVID ALAN
Berrien County Trial CourtCivil Division
LC No. 02-003976-NH
Official Reported Version
Hoekstra, P.J., and Jansen and Kelly, JJ.
JANSEN, J. (dissenting).
I respectfully dissent. I would find that the trial court erred in granting defendants'
motion for summary disposition pursuant to MCR 2.116(C)(7) because MCL 600.5851(7) does
not limit the saving provision of MCL 600.5851(1) with regard to an insane medical malpractice
claimant whose claim accrued after he reached his eighth birthday. Thus, I would reverse and
remand for further proceedings.
The question in the present case is whether an insane person in a medical malpractice
action who has reached his or her eighth birthday is excluded from the protection of the insanity
saving clause under MCL 600.5851(1). I would find that MCL 600.5851(7) does not act as a
limitation on plaintiff 's ability to invoke the general saving provision in the present case.
A medical malpractice claim "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). As a general rule, a medical malpractice
action may not be initiated more than two years after accrual of the claim. MCL 600.5805(6).
But plaintiff argues that because Jeffrey Hurley was insane, pursuant to MCL 600.5851(2),1
there was additional time to bring the claim beyond the two-year limitation. MCL 600.5851(1).
The Revised Judicature Act (RJA) contains a general saving or "grace period" provision
at MCL 600.5851(1), which provides:
Except as otherwise provided in subsections (7) and (8), if the person first
entitled to make an entry or bring an action under this act is under 18 years old or
is insane at the time the claim accrues, the person or those claiming under the
person shall have one year after the disability is removed through death or
otherwise to make the entry or bring the action although the period of limitations
has run. This section does not lessen the time provided for in section 5852.
An exception to the general saving provisions in subsection 7 provides as follows:
Except as otherwise provided in subsection (8), if, at the time a claim
alleging medical malpractice accrues to a person under section 5838a the person
has not reached his or her eighth birthday, a person shall not bring an action based
on the claim unless the action is commenced on or before the person's tenth
birthday or within the period of limitations set forth in section 5838a, whichever
is later. If, at the time a claim alleging medical malpractice accrues to a person
under section 5838a, the person has reached his or her eighth birthday, he or she
is subject to the period of limitations set forth in section 5838a. [Emphasis
It is important to note that MCL 600.5851(1) is not necessarily a tolling provision, but
allows disabled plaintiffs an additional and separate protection from the various statutes of
limitations under the RJA. Honig v Liddy, 199 Mich App 1, 4-5; 500 NW2d 745 (1993).
Consistently with this characterization, Michigan courts have long held that regardless of
whether the statute of limitations period has expired on a claim under the RJA, MCL
600.5851(1) allows for a claim to be filed beyond the limitations period until the disability is
removed. 3 Of course, MCL 600.5851(1) is still limited by MCL 600.5851(7). The key
Whether Hurley was insane for the purposes of the statute is a factual issue that is not in
dispute on appeal.
Subsection 8 is not at issue in the present case.
See Lemmerman v Fealk, 449 Mich 56, 75; 534 NW2d 695 (1995) (the grace period under
MCL 600.5851 is available for insane plaintiffs in tort action for sexual abuse, but not when
the alleged insanity is based on claim of "repressed memory."); In re Neagos, 176 Mich App
406, 412; 439 NW2d 357 (1989) (A person who asserts insanity as a disability has one year after
the disability is removed to initiate a proceeding even if the period of limitation has expired.
However, the disability must have been in existence at the time the claim occurred.) Smith v
Bordelove, 63 Mich App 384, 388; 234 NW2d 535 (1975) (An infant plaintiff in a medical
malpractice has one year from the time infancy was removed to file a claim for medical
malpractice regardless of whether the two-year statute of limitations had expired.).
question is the extent to which MCL 600.5851(7) limits the saving provision found at MCL
When interpreting statutory language, the Legislature is presumed to have intended the
meaning it plainly expressed. Pohutski v City of Allen Park, 465 Mich 675, 683; 641 NW2d
219 (2002). Courts may not speculate about the probable intent of the Legislature beyond the
language expressed in the statute. Id. If the plain and ordinary meaning of the language is
clear, judicial construction is normally neither necessary nor permitted. Nastal v Henderson &
Assoc Investigations, Inc, 471 Mich 712, 720; 691 NW2d 1 (2005).
Clearly, the first part of MCL 600.5851(7) sets out a specific time that a person under the
age of eight must file his or her claim, i.e., before the tenth birthday if the claim accrued before
the age of eight. MCL 600.5851(7). But the second sentence, which is applicable here
because plaintiff was over the age of eight at the time of claim accrual, contains no language
limiting the application of the saving provision for insanity. MCL 600.5851(7). The second
sentence of MCL 600.5851(7) only states what the limitations period will be for those plaintiffs
whose claim accrues past the age of eight. In other words, although the standard two-year
limitations period applies for those plaintiffs past age eight, it does not simultaneously limit the
saving provision of subsection 1, which provides that the period of limitations for an insane
plaintiff does not begin to run until, "1 year after the disability is removed . . . although the
period of limitations has run." MCL 600.5851(1) (emphasis added).
Applying the plain meaning of this sentence, the only limitation is that the period of
limitations in MCL 600.5838a applies because that is the language employed in subsection 7.
MCL 600.5838a(2) redirects the plaintiff to either the period of limitations in § 5805 or § 5851:
Except as otherwise provided in this subsection, an action involving a
claim based on medical malpractice may be commenced at any time within the
applicable period prescribed in section 5805 or section 5851 . . . .
Therefore, I would find that, although MCL 600.5851(7) may limit a claim for malpractice that
accrued before the age of eight, its plain language does not limit those plaintiffs whose claims
accrued after the age of ten—as in the present case. The only direction the statute gives is to
the "period of limitations set forth in section 5838a . . . ." MCL 600.5851(7). This plain
language does not simultaneously limit the application of MCL 600.5851(1). It simply directs
the reader to the limitations period in MCL 600.5838a. In turn, § 5838a allows a plaintiff to
invoke the grace period in section 5851(1), by directly referring to it in the first sentence of §
For the above reasons, I do not agree with the majority that all medical malpractice
applicants are excluded from the disability grace period found at MCL 600.5851(1). I would
find that defendants' motion for summary disposition was improperly granted and would reverse
and remand for further proceedings.
/s/ Kathleen Jansen