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STATE OF MICHIGAN COURT OF APPEALS

DARREN FINDLING, personal representative of estate of FRANK E. EARLY, deceased, Plaintiff-Appellee, v JEFFREY PARKER, M.D., Defendant-Appellant.

UNPUBLISHED September 16, 2010

No. 291567 Oakland Circuit Court LC No. 08-096920-NH

Before: OWENS, P.J., and WHITBECK and FORT HOOD, JJ. PER CURIAM. Defendant appeals as of right the denial of his motion for summary disposition. We reverse and remand. Plaintiff's decedent, Frank Early, died of heart disease during a scuba dive on August 31, 2002. Defendant, a physician, examined Early in 2000, before he began scuba diving, and found that he was physically fit enough to scuba dive. Plaintiff alleged that as late as August 20, 2002, defendant was aware of Early's physical condition and should have advised him not to scuba dive, but failed to. Based on these allegations, plaintiff filed three medical malpractice suits against defendant, of which this is the third. The first lawsuit Shortly after Early's death, his sister, Charlene Early Powell, was appointed personal representative of his estate. On July 27, 2004, Powell filed a notice of intent (NOI) to bring a claim of medical malpractice against defendant, pursuant to MCL 600.2912b. Powell never filed suit. On February 21, 2005, plaintiff was appointed successor representative of Early's estate. On February 28, 2005, plaintiff filed the first lawsuit against defendant on behalf of Early's estate, bringing one count of medical malpractice and one count of assault and battery. Plaintiff failed, however, to attach an affidavit of merit to the complaint, as required by MCL 600.2912d. Defendant moved for dismissal based on the lack of an affidavit of merit, and also argued that the statute of limitations had run. The trial court agreed with defendant on both arguments, and dismissed the complaint with prejudice. Plaintiff appealed, and this Court affirmed the dismissal, but reversed the finding that the statute of limitations had run, and ordered that the dismissal be without prejudice. Findling v -1-

Parker, unpublished opinion per curiam of the Court of Appeals, issued September 28, 2006 (Docket No. 267519), at 1. Plaintiff sought leave to appeal to our Supreme Court, which held the application in abeyance pending the resolution of Braverman v Garden City Hospital, 480 Mich 1159; 746 NW2d 612 (2008). Findling v Parker, order of the Supreme Court, entered May 27, 2008 (Docket No. 132417). After the Supreme Court decided Braverman, it denied defendant's application for leave to appeal. Id. On June 10, 2008, the trial court amended the original order so that the first action was dismissed without prejudice. The second lawsuit On February 2, 2007 (while the application for leave to appeal was before the Supreme Court), almost four and a half years after Early's death, and just less than 2 years after plaintiff's appointment as personal representative, plaintiff filed a second complaint. The second complaint was substantially identical to the first complaint. On June 10, 2008, the same day the circuit court amended the order dismissing the first action, the parties entered into a stipulation to dismiss the second complaint, without prejudice and without costs. The third lawsuit On December 22, 2008, more than 6 years after Early's death, and almost four years after plaintiff's appointment as Early's personal representative, plaintiff filed the instant action. The third complaint raised substantially the same allegations as the first two, but brought only one count of medical malpractice, and no claim of assault and battery. Defendant moved to dismiss on the grounds that the complaint was time-barred. The trial court denied the motion, and held that "the lawsuit was/is timely in light of the periods of time appeals were pending in the related lawsuits." Defendant sought and was granted leave to appeal to this Court. The time limit was not tolled during the pendency of the appeal of the first suit. Defendant argues that this suit is barred because of the period of limitations found in the wrongful death savings provision, MCL 600.5852. Plaintiff argues that that period should have been equitably tolled during the pendency of the first suit's appeal. In general, a claim for medical malpractice must be brought within two years of the accrual of the claim. MCL 600.5805(6). A medical malpractice claim must be preceded by the filing of a valid notice of intent (NOI). MCL 600.2912b. With certain exceptions, the NOI must precede the filing of the complaint by at least 182 days, id., and the filing of the NOI tolls the statute of limitations by 182 days, MCL 600.5856. When, as is alleged here, a person dies before the period of limitations has run, the personal representative may commence an action within two years of the issuance of letters of authority, but must bring the action within three years after the original two-year limitation has run. MCL 600.5852. The question defendant asks us to answer on appeal is whether this three-year limitation on actions allowed by

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