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STATE OF MICHIGAN
COURT OF APPEALS


KATHY LANGE, Personal Representative of the Estate of BETTY LANGE, Deceased, Plaintiff-Appellee, v ST. JOSEPH MERCY HOSPITAL ANN ARBOR, a/k/a TRINITY HEALTH MICHIGAN, Defendant, and TERUN LAMA, M.D., Defendant-Appellant.

UNPUBLISHED September 13, 2007

No. 259496 Washtenaw Circuit Court LC No. 03-000792-NH

Before: Cavanagh, P.J., and Donofrio and Servitto, JJ. PER CURIAM. In this wrongful death medical malpractice action, defendant Dr. Terun Lama appeals by leave granted from a circuit court order denying his motion for summary disposition premised on MCR 2.116(C)(7). We reverse and remand. This appeal is being decided without oral argument pursuant to MCR 7.214(E). This Court reviews de novo a circuit court's summary disposition ruling. Beaudrie v Henderson, 465 Mich 124, 129; 631 NW2d 308 (2001). 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 v Wyse, 469 Mich 642, 647-648; 677 NW2d 813 (2004), quoting Fane v Detroit Library Comm, 465 Mich 68, 74; 631 NW2d 678 (2001).]

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"Whether a period of limitations applies to preclude a party's pursuit of an action constitutes a question of law that we [also] review de novo." Detroit v 19675 Hasse, 258 Mich App 438, 444; 671 NW2d 150 (2003). In this case, the decedent's medical malpractice claims accrued at the latest by November 7, 2000, and thus the two-year period of limitation in MCL 600.5805(6) extended through November 7, 2002. Although Karen Joy Bellers, the original personal representative of the decedent's estate, did not file either the mandatory notice of her intent to sue defendants, MCL 600.2912b, or the complaint within the two-year malpractice period of limitation, her appointment as the estate's personal representative on June 4, 2001, gave her until June 4, 2003, to commence this action within the wrongful death saving period. MCL 600.5852. Bellers gave notice of her intent to sue defendants on February 5, 2003, but this notice did not toll the wrongful death saving period pursuant to MCL 600.5856(c). Waltz, supra at 648-651, 655.1 Consequently, Bellers's filing of this action on July 21, 2003, occurred approximately six weeks after the wrongful death saving period expired. Although the estate challenges the retroactive applicability of Waltz to this case, controlling decisions of this Court have found that (1) the Supreme Court's decision in Waltz "applies retroactively in all cases," Mullins v St Joseph Mercy Hosp, 271 Mich App 503, 509; 722 NW2d 666 (2006), lv gtd 477 Mich 1066 (2007), and (2) equitable or "judicial tolling should not operate to relieve wrongful death plaintiffs from complying with Waltz's time restraints," Ward v Siano, 272 Mich App 715, 720; 730 NW2d 1 (2006), lv in abeyance 729 NW2d 213 (2007). Furthermore, as summarized in Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566, 576 n 27; 703 NW2d 115 (2005), both the Michigan Supreme Court and this Court have rejected the notion that a retroactive application of Waltz, in a manner that renders an estate's commencement of suit as untimely, qualifies as unconstitutional. The circuit court nonetheless found that plaintiff's appointment as the estate's successor personal representative on June 29, 2004, made the original complaint timely, relying on Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29; 658 NW2d 139 (2003). In Eggleston, supra at 33, the Michigan Supreme Court determined that the language of MCL 600.5852 "clearly allows an action to be brought within two years after letters of authority are issued to the personal representative." Because

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