Mazumder v. University of Michigan Board of Regents

715 N.W.2d 96, 270 Mich. App. 42

Opinions

NEFF, J.

In these consolidated appeals involving a wrongful death medical malpractice action, defendants appeal by leave granted an order of the trial court denying their motions for summary disposition pursuant to MCR 2.116(C)(7) on the grounds that plaintiffs action was time-barred.¹ Dr. Srinibas Mahapatra also challenges on cross-appeal the order denying summary disposition. We affirm, although not on the basis cited by the trial court.

i

This case is one of numerous appeals prompted by the Michigan Supreme Court’s decision in Waltz v Wyse, 469 Mich 642, 648-650; 677 NW2d 813 (2004), and, more particularly, this Court’s decision in Ousley v McLaren, 264 Mich App 486, 494-495; 691 NW2d 817 (2004), which determined that Waltz warrants retroactive application.² The question in this case is whether plaintiffs wrongful death medical malpractice action is properly dismissed after the decision in Waltz because the 182-day statutory tolling period, MCL 600.5856, on which plaintiff relied in calculating the period of limitations for filing her action was no longer applicable, and thus the saving period for filing a wrongful death action, MCL 600.5852, expired during the required 182-day statutory notice period for filing a medical malpractice action, MCL 600.2912b. We conclude that principles of equity require affirmance under the circumstances of this case.

ii

In Waltz, the Supreme Court held that wrongful death actions filed by personal representatives under MCL 600.5852 were subject to the 182-day statutory waiting period for filing a medical malpractice action, MCL 600.2912b(l), but were not entitled to the concomitant 182-day statutory tolling of the limitations period under MCL 600.5856. Before the decision in Waltz, the bench and bar in Michigan, including a significant portion of this Court, generally functioned with the understanding that the notice period and the notice tolling provision operated together so that the two-year saving period permitted for filing a wrongful death action by a personal representative would be tolled during the 182-day waiting period. Consequently, after the decision in Ousley holding that Waltz applied retroactively, numerous cases pending in the lower courts were summarily dismissed as time-barred because the plaintiffs had filed the actions presuming a statutory tolling period, which under Waltz no longer applied. Like the proverbial deer in the headlights, the plaintiffs’ causes of action have been frozen in time and space by the retroactive application of Waltz by Ousley, leaving them with no recourse or remedy.

The legal fallout from the decision in Waltz has been significant. This Court has been presented with numerous appeals of nearly identical issues of time-bar dismissal, all disputing the correctness and reach of Waltz and its progeny. These issues have consumed inordinate time and effort on the part of the bench and bar at various levels. For defense counsel, Waltz and Ousley were essentially a windfall in pending cases. For the plaintiffs’ counsel, and their clients, the decisions had serious repercussions.³

Viewing Waltz and Ousley as correct, the fact that so many members of this state’s bench and bar committed such rudimentary errors would be a discredit to the profession. Viewing Waltz or Ousley as incorrect, the fact that members of the bench and bar can ignore the inequities in these circumstances is a discredit to our sense of fairness and justice. Either way, permitting the summary dismissal of these legitimately filed claims is an indictment of our legal system, not merely the plaintiffs’ lawyers. The Supreme Court has generally recognized and applied equitable principles to avoid injustice in circumstances such as these. Bryant v Oakpointe Villa Nursing Ctr, Inc, 471 Mich 411, 432; 684 NW2d 864 (2004); Gladych v New Family Homes, Inc, 468 Mich 594, 606; 664 NW2d 705 (2003); Pohutski v City of Allen Park, 465 Mich 675, 698-699; 641 NW2d 219 (2002). We conclude that the application of principles of equity is similarly warranted in this case to reinstate plaintiffs action.

hi

Plaintiff Monika Mazumder filed this action as personal representative of the estate of the decedent, Deepika S. Mazumder, following Deepika’s death on June 3, 2000. According to plaintiffs complaint, Deepika committed suicide as a result of defendants’ negligence in treating her mental illness.

Personal representative letters of authority were issued for Deepika’s estate on May 2, 2002.⁴ Plaintiff filed a notice of intent for the medical malpractice action on April 27, 2004, and subsequently filed her complaint on October 21,2004. Presuming that the saving period was tolled during the 182-day notice period, plaintiff calculated that she had the remainder of the two-year saving period in which to file her complaint, and thus the complaint was timely filed.⁵

Waltz was decided on April 14,2004. Under the analysis in Waltz, plaintiffs action would be time-barred because Waltz held that the notice tolling provision, MCL 600.5856, did not toll the wrongful death saving period, MCL 600.5852, and therefore the saving period expired May 2, 2004, during the 182-day waiting period following her notice of intent. This Court subsequently held that Waltz applied retroactively; thus, the analysis in Waltz became applicable to plaintiff’s case. Ousley, supra at 494-495.

IV

Defendants argue that the trial court erred in denying their motions for summary disposition on the basis that plaintiff timely filed her complaint within the “five-year ceiling” permitted for filing a wrongful death action under MCL 600.5852. We agree for reasons discussed below.

Further, it seems clear that applying the analyses in Waltz and subsequent cases would result in the dismissal of plaintiffs case in hindsight because plaintiff could not meet the 182-day waiting period following her notice of intent, during which she was precluded from filing suit, and still file her complaint before the end of the two-year saving period under MCL 600.5852. However, given the widespread recognition within the bench and bar of notice tolling during the saving period before the decision in Waltz, and the injustice that results from ignoring that recognition, plaintiff is entitled to equitable relief. Bryant, supra at 432; Apsey v Mem Hosp (On Reconsideration), 266 Mich App 666, 681-682; 702 NW2d 870 (2005); see also Ward v Rooney-Gandy, 265 Mich App 515, 517-520; 696 NW2d 64 (2005) (setting forth principles for equitable tolling), rev’d 474 Mich 917 (2005). No principled basis exists for denying plaintiff her right to proceed with her pending action.

A

Whether a period of limitations applies in particular circumstances constitutes a legal question that this Court considers de novo. Detroit v 19675 Hasse, 258 Mich App 438, 444; 671 NW2d 150 (2003).

We [also] review de novo decisions regarding summary disposition motions. 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, supra at 647-648, quoting Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001).]

This Court considers de novo the applicability of equitable doctrines. Yankee Springs Twp v Fox, 264 Mich App 604, 611; 692 NW2d 728 (2004).

B

The trial court denied defendants’ motions for summary disposition on the grounds that plaintiffs complaint was timely filed in light of what the court perceived as a “five-year ceiling” in MCL 600.5852. We disagree.

MCL 600.5852 sets forth a saving period in which a personal representative may pursue a wrongful death action:

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.

The trial court reasoned that under the wrongful death saving provision, plaintiff had three years from the time she was issued letters of authority in which to file her complaint, or until June 3, 2005. However, as this Court noted in Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566, 573 n 16; 703 NW2d 115 (2005), the three-year period referenced in the second sentence of MCL 600.5852 does not establish a wrongful death saving period separate from the period of two years after the issuance of letters of authority:

We note that the three-year ceiling in this provision does not establish an independent period during which a personal representative may bring suit. Specifically, it does not authorize a personal representative to file suit at any time within three years after the period of limitations has run. Rather, the three-year ceiling limits the two-year saving period to those cases brought within three years of when the malpractice limitations period expired. As a result, while the three-year ceiling can shorten the two-year window during which a personal representative may file suit, it cannot lengthen it.

Consequently, plaintiffs action is not saved by the three-year ceiling in MCL 600.5852, and the trial court erred in granting summary disposition on this basis.

c

The period of limitations applicable to a wrongful death action is generally the period applicable to the underlying theory of liability. Waltz, supra at 648. The limitations period for a medical malpractice action is two years from the date the claim first accrued.⁶ MCL 600.5805(1) and (5);⁷ Farley, supra at 571. However, MCL 600.5852 sets forth a saving period in which a personal representative may pursue a wrongful death action:

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.

Accordingly, “a personal representative may file a medical malpractice suit on behalf of a deceased person for two years after letters of authority are issued, as long as that suit is commenced within three years after the two-year malpractice limitations period expired.” Farley, supra at 572-573.

In 1993, the Legislature enacted a number of changes to the Revised Judicature Act, including a 182-day notice provision for medical malpractice actions, MCL 600.2912b(l), and a provision for tolling the period of limitations during the 182-day notice period, MCL 600.5856(d). 1993 PA 78; Morrison v Dickinson, 217 Mich App 308, 311-312; 551 NW2d 449 (1996). The purpose of the notice requirement is “to encourage settlement without the need for formal litigation.” Neal v Oakwood Hosp Corp, 226 Mich App 701, 715; 575 NW2d 68 (1997).

MCL 600.2912b(l) provides:

Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.

MCL 600.5856 provides:

The statutes of limitations or repose are tolled:

(d) If, during the applicable notice period under section 2912b, a claim would be barred by the statute of limitations or repose, for not longer than a number of days equal to the number of days in the applicable notice period after the date notice is given in compliance with section 2912b.

Footnotes

•

[8]

Under the statutory scheme for notice, “filing a notice of intent to sue will toll any period of limitations or repose, if such period . . . would otherwise bar the claim, for the time set out in the written notice of intent provision (MCL 600.2912b[l]), that is, for a period not longer than 182 days.” Farley, supra at 572.

In Waltz, the Supreme Court held that the medical malpractice notice tolling provision did not toll the saving period under MCL 600.5852 for filing a wrongful death action:

Section 5856(d), by its express terms, tolls only the applicable “statute of limitations or repose.” As we recently stated in Miller [v Mercy Mem Hosp, 466 Mich 196, 202; 644 NW2d 730 (2002)], the wrongful death provision, § 5852, “is a saving statute, not a statute of limitations.” (Emphasis supplied.) See also Lindsey v Harper Hosp [455

Mich 56, 60-61, 65; 564 NW2d 861 (1997)], in which we explained that § 5852, as “the statute of limitations saving provision” and an “exception to the statute of limitations,” operated “to suspend the running of the statute until a personal representative is appointed to represent the interests of the estate.”

The plain language of § 5852 wholly supports our conclusion that it is not itself a “statute of limitations.” ... By its own terms, § 5852 is operational only within the context of the separate “period of limitations” that would otherwise bar an action. Section 5852 clearly provides that it is an exception to the limitation period, allowing the commencement of a wrongful death action as many as three years after the applicable statute of limitations has expired. [Waltz, supra at 650-651.]

D

The parties do not dispute the timing of the following relevant events in this case: (1) The decedent died on June 3, 2000, after alleged acts of malpractice by defendants beginning on March 3, 2000; (2) the probate court issued letters of authority appointing a personal representative of the decedent’s estate on May 2, 2002;⁹ and (3) the personal representative gave defendants notice of the estate’s intent to pursue medical malpractice claims against them on April 27, 2004.

Plaintiff filed suit on October 21, 2004, nearly six months after the expiration of the grace period for filing a medical malpractice action pursuant to the wrongful death saving statute. Under the analysis in Waltz and its progeny, plaintiffs complaint would be considered untimely. Waltz, supra at 651; Farley, supra at 573-575.

E

The decision in Waltz, and subsequent decisions, essentially retroactively foreclosed any statutory basis for tolling the two-year filing period in the saving statute, MCL 600.5852. Waltz was decided on April 14, 2004, less than two weeks before the notice of intent in this case on April 27, 2004, and less than three weeks before the two-year saving period expired on May 2, 2004. Under pre-Waltz decisions, our courts clearly applied the notice tolling provision to the two-year saving period in the wrongful death statute. Plaintiff proceeded accordingly in this case. If Waltz had not “eliminated” the tolling period, plaintiffs complaint, filed on October 21, 2004, would have been timely in light of the 182-day notice tolling provision. Given the timing of the Waltz decision, it was not possible for plaintiff to alter the course of the litigation to protect her right to a cause of action.

In rendering its decision in Waltz, the Supreme Court acknowledged that its earlier decision in Omelenchuk v City of Warren, 461 Mich 567; 609 NW2d 177 (2000), “might be viewed as sanctioning application of the notice tolling provision to the wrongful death saving provision,” and to that extent overruled Omelenchuk. Waltz, supra at 655. In Omelenchuk, supra at 577, a unanimous Court referred to MCL 600.5852 as a “limitation period,” and calculated the limitations period on the basis of the date the personal representative was appointed, February 14, 1994, rather than the accrual date of the cause of action, February 13, 1994. See Waltz, supra at 654. Accordingly, in Omelenchuk, supra at 577, the Court observed that “the two-year limitation period was set to expire on February 14,1996,” two years after the personal representative was appointed, indicating that the two-year period was tolled during the statutoiy notice period, i.e., the wrongful death saving period under MCL 600.5852. See Waltz, supra at 654.

Although in Waltz the Court determined that the dates in Omelenchuk were miscalculated and should have been based on the accrual date of the cause of action, February 13, 1994, rather than on the date the personal representative was appointed, February 14, 1994, the fact remains^that Omelenchuk undeniably applied the tolling provision to the wrongful death saving provision, even if contrary to the plain language of the statute. The bench and bar subsequently relied on the analysis in Omelenchuk and the dates as calculated. See, e.g., Waltz v Wyse, unpublished opinion per curiam of the Court of Appeals, issued October 1, 2002 (Docket No. 231324), slip op, p 3 n 2 (“To the extent that plaintiff relies on Omelenchuk, supra at 577, we find that case distinguishable. In that case, the Supreme Court added the 182-day tolling period to the two-year limitation periods that started when the personal representative was appointed . . . .”).

In addition to Omelenchuk, pre-Waltz published decisions of this Court similarly recognized tolling with respect to the required 182-day notice period.¹⁰ In Fournier v Mercy Community Health Care System-Port Huron, 254 Mich App 461; 657 NW2d 550 (2002), the Court clearly based its analysis and decision on the premise that the tolling provision, MCL 600.5856, applied to the wrongful death saving provision, MCL 600.5852. The Court held that because the plaintiff failed to comply with the requirements for the notice of intent under MCL 600.2912b, the notice of intent did not toll the “statutory period of limitation,” which expired two years after the probate court issued letters of authority appointing the plaintiff personal representative. Fournier, supra at 468-469. In Fournier, the decedent died' on July 7, 1998. The plaintiff was appointed personal representative on July 13, 1998. The plaintiff mailed six notices of intent on July 12, 2000, next-day delivery, all of which were mistakenly sent to one recipient who was not named as a defendant. Id. at 463. The Court noted that “under the particular facts of this case, the period of limitation expired July 13, 2000, two years after the letters of authority were issued.” Id. at 466-467 (emphasis added).

Likewise, in Lentini v Urbancic, 262 Mich App 552; 686 NW2d 510 (2004), vacated and remanded, 472 Mich (2005), on remand 267 Mich App 579 (2005), the “Court accepted that MCL 600.5856(d) tolled the period described under MCL 600.5852 . .. .” Lentini, supra, 267 Mich App 581. In the initial opinion, the Court addressed the question of “when” the letters of authority were considered “issued” for the purposes of tolling the period of limitations. The Court held that the letters are “issued” on the date they are signed by the probate judge. Id. The decedent died on April 11, 1999. The letters of authority were signed on October 15, 1999, and certified and mailed to the plaintiff on October 19, 1999. On October 12, 2001, the plaintiff filed a notice of intent. Id. at 580-581. In its initial decision, the Court stated:

If the date of issuance of the letters of authority is fixed as October 15, 1999, plaintiff had three days remaining under the statute of limitations when he tolled the running of the statutory period on October 12, 2001. The saving provision would give plaintiff three days to timely file his malpractice complaint when the tolling provision expired on April 12, 2002, or until April 15, 2002. But if the date of issuance of the letters of authority is deemed to be October 19, 1999, plaintiff had seven days remaining under the statute of limitations at the time it was tolled, and, therefore, when the tolling provision expired on April, 12, 2002, plaintiff had until April 19, 2002, to timely file his complaint. Plaintiff filed his complaint on April 17, 2002. Thus, whether plaintiffs complaint survives is wholly dependent on the date the letters of authority were “issued.” [Lentini, supra, 262 Mich App 554-555.]

No matter which date the letters of authority were considered “issued,” the Court recognized that the tolling period applied to the wrongful death saving statute. Pre-WaZfe decisions by lower courts likewise applied the tolling provision to the wrongful death saving provision.

Moreover, in Morrison, this Court addressed the statutory scheme for the notice of intent requirement, MCL 600.2912b, and the tolling provision, MCL 600.5856, as enacted under 1993 PA 78. Because of the effective date and the enacting provisions of the public act, the plaintiffs’ case was subject to the notice requirement, but not the tolling provision. The Legislature enacted the notice provision and the tolling provision, both effective April 1, 1994. Morrison, supra at 311. The act, however, provided that the tolling provision did not apply to causes of action arising before October 1, 1993, whereas the notice provision applied to cases filed on or after October 1, 1993. Id. at 312.

In Morrison, the plaintiffs’ malpractice action arose on May 21, 1992, with respect to a childbirth; however, the plaintiffs provided their notice of intent on April 28, 1994, and filed their complaint on May 19,1994. Id. at 310. The defendants claimed that they were entitled to summary disposition because the plaintiffs failed to give the required 182-day notice. The Morrison Court held that although the plaintiffs failed to comply with the notice requirement, they could not be denied the tolling period, even though technically it did not apply to their cause of action, because “enforcement would vitiate an accrued medical malpractice claim without providing the potential plaintiff the benefit of the 182-day tolling provision.” Id. at 318. The Court held that the plaintiffs, as well as all similarly situated plaintiffs, were free to refile their suits following the dismissal of their actions. Id. at 319. Morrison clearly recognized that the Legislature’s intent was that the 182-day notice provision would be counterbalanced by the 182-day tolling provision. Id. at 315-316.

f

In this case, plaintiffs “untimely” filing was not due to her miscalculation of the applicable limitations period. Plaintiff relied on the courts’ repeated recognition and the general understanding among the bench and bar that tolling applied under the circumstances of this case.¹¹ Accordingly, in keeping with established precedent, equitable principles compel affirmance.

The Supreme Court has generally recognized and applied equitable principles to avoid injustice in circumstances such as these. Bryant, supra at 432; Pohutski, supra at 698-699. Given this precedent, including the recognition in Waltz, supra at 655, that Omelenchuk “might be viewed as sanctioning application of the notice tolling provision to the wrongful death saving provision,” we find the equitable principles applied by Justice MARKMAN in Bryant, supra at 432, a proper basis for reinstating plaintiffs action. In this case, as in Bryant, “[p]laintiff s failure to comply with the applicable statute of limitations is the product of an understandable confusion about the legal nature of her claim, rather than a negligent failure to preserve her rights.” Id.

The fact that the language of the statute plainly refers to a “statute of limitations” or a “statute of repose,” see Waltz, supra at 651, 655, does not change this result. In Pohutski, considering similar equities, Justice CORRIGAN, writing for the majority, obtained a similar result under the same reasoning. The Court held that “the plain language of the governmental tort liability act does not contain a trespass-nuisance excep tion to governmental immunity,” but nonetheless determined that it would be inequitable to apply the holding to pending cases. Id. at 689-690. Justice CORRIGAN concluded:

Thus, if we applied our holding in this case retroactively, the plaintiffs in cases currently pending would not be afforded relief under Hadfield [v Oakland Co Drain Comm’r, 430 Mich 139; 422 NW2d 205 (1988)] or 2001 PA 222. Rather, they would become a distinct class of litigants denied relief because of an unfortunate circumstance of timing.

Accordingly, this decision will be applied only to cases brought on or after April 2, 2002. In all cases currently pending, the interpretation set forth in Hadfield will apply.

[.Pohutski, supra at 698-699.]

Although Justice CORRIGAN’S statements were made in the context of retroactivity, there is no principled basis for failing to similarly uphold the “administration of justice” in this case. Id. at 699; see also Gladych, supra at 606. The equities do not change merely because of the nature of the action. Plaintiffs circumstances are no less worthy of equity, fairness, or justice with respect to her right of action.

Even absent this Supreme Court precedent, the doctrine of judicial or equitable tolling should be invoked to prevent the unjust forfeiture of plaintiffs cause of action. Ward, supra at 520. In Ward, this Court set forth the principles of equitable or judicial tolling:

“The time requirements in lawsuits between private litigants are customarily subject to equitable tolling if such tolling is necessary to prevent unfairness to a diligent plaintiff.” 51 Am Jur 2d, Limitation of Actions, § 174, p 563. “In order to serve the ends of justice where technical forfeitures would unjustifiably prevent a trial on the merits, the doctrine of equitable tolling may be applied to toll the running of the statute of limitations, provided it is in conjunction with the legislative scheme.” 54 CJS, Limitations of Actions, § 86, p 122....

This Court in United States Fidelity & Guaranty Co v Amerisure Ins Co, 195 Mich App 1, 6; 489 NW2d 115 (1992), noted that “Michigan and federal case law provides precedent for the principle that limitation statutes are not entirely rigid, allowing judicial tolling under certain circumstances[.]”

Equitable tolling has been applied where “the plaintiff actively pursued his or her judicial remedies by filing a defective pleading during the statutory period or the claimant has been induced or tricked by the defendant’s misconduct into allowing the filing deadline to pass.” Am Jur 2d, supra at 563. While equitable tolling applies principally to situations in which a defendant actively misleads a plaintiff about the cause of action or in which the plaintiff is prevented in some extraordinary way from asserting his rights, the doctrine does not require wrongful conduct by a defendant. Id. at 564. An element of equitable tolling is that a plaintiff must exercise reasonable diligence in investigating and bringing his claim. Id. at § 175, p 564. {Id. at 517-520.]

The doctrine of equitable or judicial tolling “must and should be rarely invoked” only “to ensure fundamental practicality and fairness and to prevent the unjust technical forfeiture of a cause of action . ...” Id. at 520; see also Apsey, supra at 681-682. Such circumstances exist in this case.

Although the Supreme Court recently reversed the majority decision in Ward in lieu of granting leave to appeal for the reasons stated in the dissent in Ward, see 474 Mich 917 (2005), the Ward dissent did not eschew the doctrine of equitable tolling, but concluded that it did not apply in the circumstances of that case because the affidavit was grossly nonconforming and the filing of the defective affidavit did not toll the period of limitations. Ward, supra at 529. Contrasting Bryant, supra at 432, the dissent concluded that the plaintiffs filing of an affidavit regarding the wrong patient “was undoubtedly ‘the product’ of a ‘negligent failure’ rather than an ‘understandable confusion ....’” Ward, supra at 528-529. In this case, to the contrary, there is no indication that the timing of plaintiffs complaint resulted from any negligent failure; rather, it was based on the confusion among the bench and bar concerning the existing law in Michigan. Apsey, supra at 681.

Plaintiffs failure to comply with the statute of limitations was the product of an understandable misinterpretation of the notice tolling provision, resulting from not only the appellate courts’ interpretation of the statutes at issue, but also from the presumed legislative intent. We hold that plaintiff is entitled to equitable relief. Accordingly, we affirm the trial court’s order denying defendants’ motions for summary disposition pursuant to MCR 2.116(C)(7).

V

Regardless of whether the decision in Waltz reached a correct result reading the plain language of MCL 600.5856, this result could not have been intended by the Legislature. In this case, as in Morrison, plaintiff is subject to the notice provision, but not the tolling provision, which is contrary to the legislative intent as set forth in Morrison. The notice of intent tolling provision, MCL 600.5856, should apply to the wrongful death saving period, MCL 600.5852, because it is the only way to harmonize the statutes and thereby effectuate the plain enactments of the Legislature.

In effect, Waltz established a judicial obstacle to a cause of action that the Legislature established pursuant to the strict requirement of a 182-day waiting period to file a medical malpractice action. The 182-day waiting period is used as a sword to shorten the two-year saving period. Wrongful death medical malpractice actions are generally time-consuming and difficult to evaluate; personal representatives should at least have the benefit of the two-year minimal period for filing a cause of action that the Legislature has determined is appropriate for medical malpractice actions generally. We urge the Legislature to respond legislatively to restore the two-year saving period for a wrongful death cause of action to eliminate confusion.

Affirmed.

DAVIS, J., concurred.

1

Drs. Mohamed Aziz and Stephan F. Taylor appeal by leave granted in Docket No. 261331, and Washtenaw County Community Mental Health; Moonson R. Elliott Eninsche, B.A., R.S.W, C.S.M.; and Richard Pfoutz, M.S.W, C.S.W, appeal by leave granted in Docket No. 261333.

2

See also Forsyth v Hopper, 472 Mich 929 (2005); Wyatt v Oakwood Hosp & Med Centers, 472 Mich 929 (2005); Evans v Hallal, 472 Mich 929 (2005); McMiddleton v Bolling, 267 Mich App 667, 671; 705 NW2d 720 (2005); Lentini v Urbancic (On Remand), 267 Mich App 579, 582 n 3; 705 NW2d 701 (2005).

3

Not only were the cases dismissed, but the grounds of dismissal call into question the adequacy of counsel's representation; a statute of limitations error on the part of trial counsel is the most rudimentary error.

4

Although plaintiff apparently is the successor personal representative, she relies on the date the initial personal representative, Bhaskar Mazumder, was appointed.

5

The number of days from April 27, 2004, to May 2, 2004, added to the 182 days.

6

The six-month discoveiy rule, MCL 600.5838a(2), does not apply in this case.

7

Effective March 31, 2003, former MCL 600.5805(5) was renumbered as subsection 6. 2002 PA 715. Because subsection 5 prescribed the period of limitations appbcable at the time this action accrued, MCL 600.5838a(l), this opinion refers to subsection 5.

8 Effective April 22, 2004, MCL 600.5856 was amended, relettering subsection d as c, and making other changes that do not affect this appeal. 2004 PA 87. This opinion cites the former subsection for consistency.