Preview:

STATE OF MICHIGAN
COURT OF APPEALS


ERIC A. BRAVERMAN, Personal Representative of the Estate of WILLIE WALLER, Deceased, Plaintiff-Appellant, v WILLIAM BEAUMONT HOSPITAL, ANDREW WILSON, M.D., ANTONIO BONFIGLIO, M.D., KIRSTEN GUENTHER, M.D., and BIOMEDICAL APPLICATIONS OF MICHIGAN, INC., d/b/a FMC UNIVERSITY, Defendants-Appellees.

UNPUBLISHED August 28, 2007

No. 268106 Oakland Circuit Court LC No. 05-069594-NH

Before: Murray, P.J., and Smolenski and Servitto, JJ. PER CURIAM. I. Introduction In this wrongful death medical malpractice action, plaintiff appeals from the trial court's order granting defendants' motions for summary disposition pursuant to MCR 2.116(C)(7). We conclude that under the wrongful death saving provision, MCL 600.5852, plaintiff, the successor personal representative for the decedent's estate, timely filed this action, and furthermore, that although plaintiff failed to comply with the notice provisions of MCL 600.2912b(1) in regard to individual defendant Frensius, plaintiff did comply with the notice provisions regarding all other defendants. Accordingly, we vacate the January 10, 2006, order in its entirety and remand to the trial court for further proceedings consistent with this opinion.1

1

By order entered January 24, 2007, we held the appeal in abeyance pending our Supreme Court's decision in Washington v Sinai Hospital of Greater Detroit, which the Court decided on June 27, 2007. See Washington v Sinai Hospital of Greater Detroit, 478 Mich 412; 733 NW2d 755 (2007). Because Washington was decided solely on a res judicata theory, and defendants have not raised res judicata on appeal, Washington, supra, has no affect on this case.

-1-


II.

Facts and Procedural Background

This case arises out of a wrongful death action based on acts of medical malpractice for the negligent treatment of a head injury sustained by plaintiff's decedent, William ("Willie") Waller. On March 20, 2002, Willie Waller underwent dialysis at defendant Fresenius' medical care facility.2 That afternoon, Willie's wife, Stella Waller, contacted Fresenius and indicated that her husband had fallen in the driveway of their home, had a "big knot" on his forehead, and was experiencing mental status changes. Stella was then advised to take her husband to the emergency room. That same day, Willie was admitted to William Beaumont Hospital in Royal Oak, where records indicate he had a large hematoma (bruise), lightheadedness, and trouble with his vision. Willie's condition continued to worsen, and he died at the hospital on March 23, 2002. Following the death of her husband, on June 10, 2002, Stella was issued letters of authority appointing her as the original personal representative of the estate. On May 14, 2004, Stella gave defendant Beaumont Hospital and defendants physicians' notice of intent to bring a medical malpractice action, thus triggering the 182-day statutory waiting period pursuant to MCL 600.2912b.3 On June 10, 2004, after mailing the notice of intent, but prior to the expiration of the mandatory waiting period, Stella filed a wrongful death action alleging negligence and medical malpractice by defendants Beaumont Hospital, Dr. Andrew Wilson, Dr. Antonio Bonfiglio and Dr. Kirsten Guenther. On August 11, 2004, Eric Braverman was appointed successor personal representative of the estate. Defendants responded by filing a motion for summary disposition pursuant to MCR 2.116(C)(7) for Stella's failure to file the complaint within the applicable statutory period. Defendants argued that the cause of action had to be dismissed because the personal representative did not wait the requisite time period called for by MCL 600.2912b, and therefore she improperly filed the complaint during the statutory waiting period. Before defendants' motion was decided, the parties stipulated to dismissal without prejudice of the case, and the trial court entered an order of dismissal without prejudice on December 14, 2004. Also on December 14, 2004, Braverman, the successor personal representative, filed a wrongful death action again alleging medical malpractice and negligence claims against defendant Beaumont Hospital and the individual defendant physicians, while also adding a second count against defendant Fresenius for its failure to provide medical records,

In an order entered on December 6, 2005, the parties stipulated to amend the caption and pleadings to substitute defendant Bio-medical Applications of Michigan, Inc., for defendant Fresenius Medical Care Cardiovascular Resources, Inc. Nevertheless, given that the party refers to itself as defendant Fresenius in its brief on appeal, we do the same throughout this opinion.
3

2

MCL 600.2912b requires a claimant to wait 182 days from the date the notice of intent is filed before the claimant may commence a lawsuit. If no written response to the notice is made within 154 days, suit may be brought on the 155th day.

-2-


which precluded plaintiff from bringing a cause of action for medical malpractice against Fresenius.4 Thereafter, defendants filed motions for summary disposition under MCR 2.116(C)(7) for failure to file the complaint within the allotted statutory period.5 Defendants argued that, pursuant to Waltz v Wyse, 469 Mich 642; 677 NW2d 813 (2004), the second complaint was time barred. Defendants also argued that a successor personal representative could not file the same complaint that was previously filed, and that MCL 700.3613 requires that the successor personal representative be substituted in the prior action, which in this case was prematurely filed and subsequently dismissed. Furthermore, defendants contended that Eggleston v Bio-Medical Applications of Detroit, 468 Mich 29; 658 NW2d 139 (2003), was inapplicable because no medical malpractice action was filed before the death of the initial personal representative in Eggleston, and the successor personal representative was appointed by necessity after the initial personal representative's death. Defendants relied on the unpublished opinion of King v Briggs, unpublished opinion per curiam of the Court of Appeals, issued July 12, 2005 (Docket Nos. 259136, 259229), where this Court held that a successor personal representative must be substituted in an action already commenced and does not have an additional two years under MCL 600.5852 to file a malpractice claim. Defendants also contended that the second suit was barred by res judicata. On November 16, 2005, plaintiff filed a response, arguing that pursuant to Eggleston, the plain language of MCL 600.5852 indicates that a successor personal representative may commence an action at any time within two years after letters of authority have been issued, and therefore, the action was timely and should not be dismissed. In reply, defendants argued that plaintiff's attempt to revive an untimely complaint by substituting a successor personal representative was prohibited under King, supra. At the December 21, 2005, hearing on defendants' motions for summary disposition, defendants presented the trial court with a copy of McLean v McElhaney, 269 Mich App 196; 711 NW2d 775 (2005), pointing out that this Court ruled that a successor personal representative could not bring a lawsuit that was filed untimely by the initial personal representative. Plaintiff responded that McLean was distinguishable since in the instant case the successor personal representative actually filed the second complaint in his name. Following this exchange, the trial court ruled that defendants were entitled to summary disposition. The trial court based its decision on this Court's unpublished decision in King:

The initial complaint was filed in Oakland Circuit Court, but was dismissed without prejudice. Subsequently, the successor personal representative filed the case in Wayne Circuit Court. The trial court denied defendants' motion to change the venue, but this Court reversed the trial court's ruling. Braverman v William Beaumont Hosp, unpublished order of the Court of Appeals, entered July 22, 2005 (Docket No. 263194). On remand, the trial court changed the venue back to Oakland County. Besides filing its own motion for summary disposition, defendant Fresenius later joined in codefendants' motion for summary disposition.
5

4

-3-


This Court finds that the holding in King v Briggs, that was decided July 12 , 2005, Docket Numbers 259136 and 259229 instructive and on point with the case at bar. As the King Court noted, the issue to be considered is whether a P.R. who fails to diligently pursue a malpractice cause of action within the allotted time may nevertheless save the action from dismissal by substituting another personal representative. MCL 700.3613 states that a successor P.R. must be substituted in all actions and proceedings in which the former personal representative was a party. The Court found that the successor representative had to be substituted in the action already commenced and did not have an additional two years under MCL 600.5852 to pursue the malpractice claim.
th

In this case, Eric Braverman was appointed successor P.R. on August 11, 2004. The first lawsuit was not dismissed until December 14, 2004. Consequently, Braverman stood in the shoes of the initial P.R. who did not file it

Download EST OF WILLIE WALLER V WILLIAM BEAUMONT HOSP.pdf

Michigan Law