EST OF NAOMI HARRIS V UNIV OF MICH BD OF REGENTS
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STATE OF MICHIGAN
COURT OF APPEALS
ESTATE OF NAOMI HARRIS, by DARLENE
McMIDDLETON, Successor Personal
Representative,
FOR PUBLICATION
August 16, 2005
9:05 a.m.
Plaintiff-Appellant,
v
No. 261216
Washtenaw Circuit Court
LC No. 03-000291-NH
STEVEN F. BOLLING, M.D.,
Defendant-Appellee,
and
CARDIOVASCULAR CLINICAL ASSOCIATES,
P.C., BOTSFORD GENERAL HOSPITAL,
DAVID SUSSER, D.O., and ARLENE LEVINE,
Defendants-Not-Participating.
ESTATE OF NAOMI HARRIS by DARLENE
McMIDDLETON, Successor Personal
Representative,
Plaintiff-Appellant,
v
UNIVERSITY OF MICHIGAN BOARD OF
REGENTS, d/b/a UNIVERSITY OF MICHIGAN
MEDICAL CENTER,
No. 261219
Washtenaw Circuit Court
LC No. 03-000037-MH
Official Reported Version
Defendant-Appellee.
Before: Whitbeck, P.J. and Bandstra and Kelly, JJ.
PER CURIAM.
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In these consolidated medical malpractice actions, plaintiff appeals as of right the trial
court's order granting summary disposition in favor of defendants Steven F. Bolling, M.D., and
the University of Michigan Medical Center. We affirm and hold 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.
I. Basic Facts
On April 1, 1999, Dr. Bolling performed surgery on Naomi Harris, which included a
"mitral, tricuspid and aortic valve repair and a saphenous vein grafting of the right coronary
artery." The surgery took place at the University of Michigan Medical Center. Harris was
discharged on April 15, 1999. Dr. Bolling again treated Harris in the outpatient clinic on May
17, 1999. Complications ensued for which Harris sought treatment at Botsford Hospital.
Harris's condition deteriorated. She died on August 17, 2000.
On September 28, 2000, Jane A. McMiddleton was appointed personal representative of
Harris's estate. On May 24, 2002, plaintiff served on defendants a notice of intent to sue. On
March 19, 2003, plaintiff filed the complaint.1 On May 17, 2004, Darlene McMiddleton was
appointed successor personal representative. On September 17, 2004, the trial court entered a
stipulated order to amend the caption to reflect the appointment of Jane McMiddleton as
successor personal representative.
Defendants subsequently filed a motion for summary disposition arguing that the
complaint was not filed within two years of the original personal representative's appointment, as
required by Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004), and the subsequent
appointment of a successor personal representative did not render the untimely filed complaint
timely. Plaintiff first argued that Waltz should not be applied retroactively. Plaintiff also argued
that, after the caption was amended to reflect appointment of the successor personal
representative, the successor personal representative "is the one who's then been deemed to have
filed the notice, filed the complaint. And, if her name retroactively has been on it then we are, of
course, timely." The trial court queried:
If what she did is now found to be defective—or didn't fall within the
statute of limitations and therefore—I'm talking about the predecessor [personal
representative]; how does the relation back to what she did cure the problem?
That's all I'm asking.
The trial court then noted that this Court in Ousley v McLaren, 264 Mich App 486, 494-495; 691
NW2d 817 (2004), held that Waltz must be applied retroactively. Applying Waltz, the trial court
granted defendants' motion.
II. Analysis
1
On that date, complaints were filed in both the circuit court and the Court of Claims. Because
the cases were consolidated, we refer to the complaints collectively as "the complaint."
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"We review de novo the trial court's decision to grant a motion for summary disposition
under MCR 2.116(C)(7)." Ousley, supra at 490. "In general, a plaintiff in a medical malpractice
case must bring his claim within two years of when the claim accrued, or within six months of
when he discovered or should have discovered his claim." Solowy v Oakwood Hosp Corp, 454
Mich 214, 219; 561 NW2d 843 (1997); MCL 600.5805(1), 600.5805(6), 600.5838, 600.5838a.
All plaintiffs alleging medical malpractice are required to file a notice of intent to sue under
MCL 600.2912b(1) "not less than 182 days before the action is commenced." Pursuant to MCL
600.5856(c), the statute of limitation or repose is tolled if:
At the time notice is given in compliance with the applicable notice period
under section 2912b, if during that period a claim would be barred by the statute
of limitations or repose; but in this case, the statute is tolled not longer than the
number of days equal to the number of days remaining in the applicable notice
period after the date notice is given.
Further, when the medical malpractice claim is brought on behalf of a deceased person, MCL
600.5852 applies and 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.
Plaintiff argues that she was relying on Omelenchuk v Warren, 461 Mich 567; 609 NW2d
177 (2000), when she filed her complaint more than two years after the appointment of the
personal representative, but sent the notice of intent within this two-year saving provision thus
allowing her an additional 182 days to file the complaint. In Omelenchuk, the Court referred to
MCL 600.5852 as setting forth a "limitation period." Id. at 577. Accordingly, plaintiff was
under the impression that the notice tolling provision applied to the wrongful death saving
provision in MCL 600.5852. However, in Waltz our Supreme Court clarified that, despite the
"imprecise choice of words" in Omelenchuk, MCL 600.5852 "is not a statute of limitations, but a
saving statute." Waltz, supra at 654 (emphasis in original). Plaintiff submits that because Waltz
was decided after she filed her complaint that case should not apply retroactively to render her
complaint untimely. However, in Ousley, this Court held that it was appropriate to apply Waltz
retroactively. See also Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich
App 566; ___ NW2d ___ (2005). Following these decisions, we conclude that it was appropriate
for the trial court to apply Waltz to this case.
The question, nonetheless, remains whether the subsequent appointment of the successor
personal representative revived the complaint that the original personal representative filed
untimely, i.e., more than two years after the original personal representative was appointed. In
support of her assertion that it did, plaintiff relies on Eggleston v Bio-Medical Applications of
Detroit, 468 Mich 29; 658 NW2d 139 (2003). In Eggleston, the personal representative died
before a complaint was filed. A successor personal representative was then appointed. The issue
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was whether the two-year saving provision began to run from the appointment of the original
personal representative or the appointment of the successor personal representative. Our
Supreme Court held that MCL 600.5852 "clearly allows an action to be brought within two years
after letters of authority are issued to the personal representative. The statute does not provide
that the two-year period is measured from the date the letters of authority are issued to the initial
personal representative." Id. at 33. Plaintiff argues that according to this decision, she could
have filed a complaint two years after she was appointed successor personal representative.
However, after being appointed successor personal representative, she did not file a complaint.
Indeed, plaintiff 's complaint was not filed within two years after appointment of either the
original personal representative or the successor personal representative. The original personal
representative filed the complaint approximately two years and six months after her appointment.
The successor personal representative never filed a complaint. Thus, Eggleston does not support
the conclusion that the complaint in this case was timely filed.2
Plaintiff argues that this Court should consider the complaint that was untimely filed by
the original personal representative to be timely because the successor personal representative
theoretically could have filed a complaint after being appointed, but actually could not have
because there was no time left under the three-year ceiling. The successor personal
representative was required to commence the action within three years after the two-year
statutory period of limitations had expired. MCL 600.5852. Here, if the last day of treatment
was May 17, 1999, the two-year statutory period of limitations would have expired on May 17,
2001. Three years from that date was May 17, 2004. On that date, the successor personal
representative was appointed, but no complaint was filed. Thus, it appears that plaintiff must
have filed her complaint on that day in order to have been timely. Yet she did not.
Plaintiff contends that she did not need to file another complaint, because the previous
personal representative had already filed one. However, applying MCL 600.5852 and the
Supreme Court's ruling in Eggleston, it is clear that a successor personal representative cannot
rely on the untimely filed complaint that was filed before she was appointed. In Eggleston, our
Supreme Court held that MCL 600.5852 "clearly allows an action to be brought within two years
after letters of authority are issued to the personal representative. The statute does not provide
that the two-year period is measured from the date the letters of authority are issued to the initial
personal representative." Id. at 33 (emphasis added). Accordingly, the successor personal
representative could have filed a complaint after her appointment, not before her appointment.
Plaintiff also cites MCL 700.3701, asserting that the successor personal representative's
powers "relate back in time to give acts by the person appointed that are beneficial to the estate
occurring before appointment the same effect as those occurring after appointment." Plaintiff
also asserts that, the same statute states, "'A personal representative may ratify and accept an act
on behalf of the estate done by another if the act would have been proper for a personal
representative.'" The problem with this argument is that the original personal representative filed
2
Plaintiff also relies on Chernoff v Sinai Hosp of Greater Detroit, 471 Mich 910 (2004), in
support of her position. However, in Chernoff, the Supreme Court simply denied leave to
appeal.
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the complaint more than two years after she had been appointed; in other words, she filed the
complaint untimely. This act was not beneficial to the estate. Further, even if the successor
personal representative ratifies this act she is only ratifying the filing of an untimely complaint.
Therefore, we conclude that MCL 700.3701 does not support the conclusion that the
appointment of a successor personal representative can render timely an untimely complaint filed
by the original personal representative.
Affirmed.
/s/ William C. Whitbeck
/s/ Richard A. Bandstra
/s/ Kirsten Frank Kelly
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