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STATE OF MICHIGAN
COURT OF APPEALS


JOSEPHINE CARMICHAEL, Personal Representative of the Estate of HENRIETTA CARMICHAEL, Deceased, Plaintiff-Appellee, v HENRY FORD HOSPITAL, Defendant, and HENRY FORD VILLAGE, INC., Defendant-Appellant.

FOR PUBLICATION September 13, 2007 9:00 a.m.

No. 258412 Wayne Circuit Court LC No. 04-409380-NH

JOSEPHINE CARMICHAEL, Personal Representative of the Estate of HENRIETTA CARMICHAEL, Deceased, Plaintiff-Appellee, v HENRY FORD HOSPITAL, Defendant-Appellant, and HENRY FORD VILLAGE, INC., Defendant. No. 258413 Wayne Circuit Court LC No. 04-409380-NH Official Reported Version

Before: O'Connell, P.J., and Murphy and Fitzgerald, JJ.

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O'CONNELL, P.J. In this wrongful death, medical malpractice action, both defendants appealed separately by leave granted from a circuit court order denying their motions for summary disposition pursuant to MCR 2.116(C)(7) (statute of limitations). Having consolidated the appeals, we affirm. We 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 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) (alteration in Waltz).] Whether a period of limitations applies in particular circumstances constitutes a legal question that this Court also considers de novo. Detroit v 19675 Hasse, 258 Mich App 438, 444-445; 671 NW2d 150 (2003). I Before discussing the parties' contentions regarding plaintiff 's appointment as the estate's successor personal representative, we will address the timeliness of the complaint as measured from the date of plaintiff 's original appointment as personal representative. The period of limitations governing a wrongful death action depends on the period of limitations applicable to the underlying theory of liability. Lipman v William Beaumont Hosp, 256 Mich App 483, 489490; 664 NW2d 245 (2003). A medical malpractice plaintiff has two years from the date the cause of action accrues in which to file suit. MCL 600.5805(6).1 "[A] claim based on the medical malpractice of a person or entity who is . . . a licensed health care professional . . . accrues at the time of the act or omission that is the basis for the claim of medical malpractice . . . ." MCL 600.5838a(1). Because the complaint fails to set forth the precise dates of alleged malpractice by defendants, which occurred over time, we will assume for the limited purposes of this preliminary analysis that the malpractice accrual date is August 10, 2001, the date of the decedent's death. Consequently, the two-year period of limitations in MCL 600.5805(6) governing the decedent's malpractice claim extended through August 10, 2003. In wrongful death actions, the Legislature affords personal representatives additional time in which to pursue legal action on behalf of a decedent's estate. Because plaintiff initially received letters of authority on October 4, 2001, the wrongful death saving period extended the

When the decedent's cause of action accrued, subsection 6 was codified as subsection 5 in MCL 600.5805. The analysis in this opinion refers to the current subsection.

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time in which she could bring suit through October 4, 2003. MCL 600.5852. In this case, plaintiff did not bring an action during her original appointment as personal representative, and instead certified that the estate was administratively completed on April 29, 2002, long before the statute of limitations could bar the case. Although plaintiff later gave defendants notice of her intent to sue on September 16, 2003, as required by MCL 600.2912b, this notice did not toll or extend the wrongful death saving period pursuant to MCL 600.5856. Waltz, supra at 648-651, 655. The Supreme Court's holding in Waltz "applies retroactively in all cases," Mullins v St Joseph Mercy Hosp, 271 Mich App 503, 509; 722 NW2d 666 (2006) (Mullins II), lv gtd 477 Mich 1066 (2007), and judicial tolling does "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), application for leave to appeal in the Supreme Court held in abeyance 729 NW2d 213 (2007).2 We reject plaintiff 's argument that retroactive application of Waltz is unconstitutional. Farley v Advanced Cardiovascular Health Specialists, PC, 266 Mich App 566, 576 n 27; 703 NW2d 115 (2005). Therefore, tracking the relevant periods from the date of plaintiff 's original appointment, her filing of the complaint on March 30, 2004, occurred after both the medical malpractice period of limitations and the wrongful death saving period had expired. II Nevertheless, plaintiff argued, and the circuit court agreed, that MCL 600.5852 afforded plaintiff two years to file suit beginning on March 18, 2003, the date of her appointment as the estate's successor personal representative. Therefore, she timely filed the complaint on March 30, 2004. Plaintiff relies on Eggleston v Bio-Medical Applications of Detroit, Inc, 468 Mich 29; 658 NW2d 139 (2003), in which the Supreme Court interpreted MCL 600.5852 in the context of a successor personal representative's filing of a wrongful death medical malpractice action. The decedent in Eggleston died on June 22, 1996, one day after having a dialysis treatment. Id. at 30. On April 4, 1997, the decedent's husband became the personal representative of her estate. Id. at 31. On August 20, 1997, the personal representative died. Id. The plaintiff, the son of the decedents, became the successor personal representative of his mother's estate on December 8, 1998, and filed a medical malpractice complaint on June 9, 1999. Id. The circuit court granted the defendants' motion for summary disposition, ruling that the plaintiff had untimely filed the action more than two years after the original personal representative's appointment, and that

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