ESTATE OF MORRISON MILLER V MERCY MEMORIAL HOSPITA
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Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice
Justices
Maura D. Cor rigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
Opinion
____________________________________________________________________________________________________________________________
FILED JUNE 4, 2002
EDWARD MILLER, Personal
Representative of the ESTATE
OF MORRISON MILLER, deceased,
Plaintiff-Appellant,
v
No. 118701
MERCY MEMORIAL HOSPITAL CORPORATION,
MANOO BOONSIRI, M.D., MANOO BOONSIRI,
M.D., P.C., and NORMA A. FLORES,
M.D.,
Defendants-Appellees,
and
AKBAR ATTARY, M.D.,
Defendant.
________________________________
PER CURIAM
This
case
presents
the
issue
whether
the
six-month
discovery provision in MCL 600.5838a(2), applicable to medical
malpractice claims, is incorporated in the wrongful death
saving statute as a “period of limitation.”
MCL 600.5852.
Plaintiff filed a wrongful death action on the basis of
medical malpractice, alleging in part that defendants failed
to timely diagnose cancer, which resulted in the death of
plaintiff's decedent. The trial court dismissed the complaint
on
statute
of
2.116(C)(7).
limitations
grounds,
pursuant
to
MCR
The Court of Appeals affirmed, relying on
Poffenbarger v Kaplan, 224 Mich App 1; 568 NW2d 131 (1997),
and
held
that
the
six-month
discovery
rule
for
medical
malpractice actions was not incorporated by the wrongful death
saving statute.1
We reverse the judgments of the trial court
and Court of Appeals and overrule Poffenbarger to the extent
that it held that MCL 600.5852 does not incorporate the six
month discovery rule.
I
We borrow the Court of Appeals statement of facts:
Decedent went to see his internist, Dr.
Attary, in 1993 because he had a chronic cough and
had been spitting up blood (hemoptysis).
Dr.
Attary referred decedent to Dr. Boonsiri, who
performed a bronchoscopy on decedent's right lung
on August 23, 1993. The biopsy results from the
procedure
were
interpreted
as
showing
no
malignancy. Decedent then underwent a CAT scan on
August 27, 1993.
Plaintiff alleged that Dr.
Flores misinterpreted the CAT scan, failing to
identify a suspicious mass in decedent's upper
hemithorax.
Plaintiff alleged that decedent's cough and
hemoptysis continued after August 1993.
Another
CAT scan was performed at Mercy Memorial Hospital
in December 1995. This scan revealed the presence
of a mass in decedent's right lung that was noted
to be suspicious for carcinoma. A needle biopsy of
the lung was performed in January 1996 at St.
1
Unpublished opinion per curiam, issued January 30, 2001
(Docket No. 217500).
2
Vincent's Hospital, and decedent was diagnosed with
lung cancer on January 10, 1996. Decedent died on
January 24, 1996. Plaintiff was appointed personal
representative and letters of authority were issued
on February 22, 1996. Plaintiff filed his wrongful
death claim on October 23, 1997.
The trial court granted summary disposition in favor of
defendants Flores and Boonsiri under MCR 2.116(C)(7).
The
trial court subsequently granted summary disposition in favor
of Mercy Memorial Hospital because plaintiff alleged it was
vicariously liable for the acts and omissions of Flores and
Boonsiri.
Plaintiff appealed as of right, and the Court of
Appeals affirmed.
Plaintiff has applied for leave to appeal.
II
The Legislature has prescribed the periods of limitation
for medical malpractice actions.
limitation
for
600.5805(5).
relating
to
a
malpractice
The general period of
action
is
two
years.
MCL
There are additional provisions specifically
medical
malpractice
actions.
The
pertinent
provisions are in a portion of MCL 600.5838a(2):
Except
as
otherwise
provided
in
this
subsection, an action involving a claim based on
medical malpractice may be commenced at any time
within the applicable period prescribed in section
5805 or sections 5851 to 5856, or within 6 months
after the plaintiff discovers or should have
discovered the existence of the claim, whichever is
later. . . .
and MCL 600.5852:
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
3
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.
Interpretation of these statutes is at the heart of this
matter.
The
Court
of
Appeals
in
this
case
interpreted
Poffenbarger as standing for the proposition that the six
month discovery provision under § 5838a(2) does not apply in
a cause of action brought by a personal representative under
§ 5852.
This reading had the effect of making the only
“period of limitation” applicable to a medical malpractice
cause of action brought by the personal representative under
§ 5852, the two-year period of limitation under § 5805(5). We
respectfully disagree with this conclusion.
In Poffenbarger, it was alleged that certain defendants
failed
to
diagnose
lung
cancer
in
plaintiff’s
decedent.
Plaintiff’s decedent died within two years of the date of
accrual of the alleged malpractice, i.e., within the period of
limitation set out in § 5805(5).
defendants
was
not
filed
Suit against the relevant
within
three
years
expiration of the two-year period of limitation.
argued the claim was therefore time-barred.
from
the
Defendants
Plaintiff, the
personal representative of the estate, argued that she could
avail
herself
of
the
six-month
discovery
provision
in
§ 5838a(2). Under this scenario, however, the suit would have
been timely filed within three years of the expiration of this
4
six-month discovery period.2
The Court stated that the issue
was “whether the three-year period mentioned in the wrongful
death saving provision of MCL 600.5852 commences after the
six-month statutory discovery period provided for in MCL
600.5838a.”
Poffenbarger, supra at 3.3
However, the Court
went on to state that the six-month discovery provision was
not incorporated by the wrongful death saving statute. Id. at
10.
2
In Poffenbarger, unlike this case, there was no claim
that the alleged medical malpractice victim had discovered the
malpractice after the two-year period of limitation had
expired. The alleged malpractice in Poffenbarger occurred in
May of 1989, and the malpractice claimant died in January of
1991.
Thus, the applicable period of limitation for the
purpose of that case was the two-year period in § 5805.
3
In addressing the personal representative’s claim that
the six-month discovery period applied to her discovery of
malpractice, rather than to the discovery by the decedent, and
her effort to amend the complaint to add new defendants in May
of 1994 (a period after the maximum three-year cutoff for
personal representatives to bring a surviving cause of action
under § 5852), Poffenbarger disagreed that the three-year
period that allowed a personal representative to bring a cause
of action after the applicable limitation period could be
further extended by the later “discovery” of a cause of action
by the personal representative under the six-month discovery
provision. Id. at 9. However, the Court proceeded to analyze
whether the personal representative had actually “discovered”
a cause of action against the defendants she sought to add to
the complaint.
We do not purport to address whether a
personal representative may use the six-month discovery
provision in § 5838a(2), because the facts in this case are
clearly distinguishable from Poffenbarger. In this case, the
six-month discovery provision applied to the decedent’s
discovery of the alleged acts of malpractice, and the issue is
whether the personal representative may avail the estate of a
cause of action under this provision within the time
prescribed by § 5852. Accordingly, we overrule Poffenbarger
to the extent that it states that the six-month discovery
period contemplated by § 5838a(2) is not a “period of
limitation” within the meaning of § 5852, the saving statute.
5
The Court of Appeals here relied on this statement from
Poffenbarger and likewise held that the saving provision did
not suspend the running of the statute of limitations in this
case.
III
As we review the interpretation and application of a
statute, it is a question of law that we review de novo.
Lincoln v General Motors Corp, 461 Mich 483, 489-490; 607 NW2d
73 (2000).
itself.
We first review the language of the statute
If it is clear, no further analysis is necessary or
allowed to expand what the Legislature clearly intended to
cover.
In re MCI Telecommunications, 460 Mich 396, 411; 596
NW2d 164 (1999).
Following these principles of statutory construction, we
conclude that the six-month discovery rule is a “period of
limitation” within the meaning of the saving statute.
The
plain language of § 5838a(2) provides two distinct periods of
limitation: two years after the accrual of the cause of
action, and six months after the existence of the claim was or
should
have
claimant.
limitation.
period
of
been
discovered
by
the
medical
malpractice
MCL 600.5852, simply refers to “the” period of
The provision does not limit or qualify which
limitation
applies,
the
two-year
period
of
limitation rooted in § 5805(5), or the six-month discovery
period found in § 5838a(2).
applies
to
whatever
period
As a saving statute, § 5852
of
6
limitation
is
or
may
be
applicable in a given case, be it a professional malpractice
claim or a breach of contract action.
Indeed, Poffenbarger
acknowledged that “[t]he period of limitation in a wrongful
death
action
is
governed
by
the
applicable to the underlying claim.”
statute
of
Id. at 6.
limitations
As the trial
court acknowledged in this case, the underlying claim here was
a medical malpractice action brought under the six-month
discovery period. Thus, it is the latter period of limitation
that the wrongful death saving statute incorporates here.
Contrary to defendants’ assertions, the six-month discovery
rule is a distinct period of limitation.
It is a statutory
provision that requires a person who has a cause of action to
bring suit within a specified time.4
other
periods
limitation.
of
limitation,
it
As an alternative to the
is
itself
a
period
of
Section 5852 is a saving statute, not a statute of
limitations.
In Lindsey v Harper Hosp, 455 Mich 56, 66; 564
NW2d 861 (1997), we stated that the purpose of § 5852 was “to
preserve
actions
that
survive
death
in
order
that
the
representative of the estate may have a reasonable time to
pursue such actions.”
decision today.
That purpose is fulfilled by our
Had plaintiff’s decedent not died, he would
have been able to bring suit for six months, or until July
1996.
Suit would have been timely, not under § 5805(5), but
4
O’Brien v Hazelet & Erdal, 410 Mich 1, 15; 299 NW2d 336
(1980).
7
under § 5838a(2), not as an exception to the two-year statute,
but as an additional period of limitation.
While we said in
Lindsey
construed
that
§
5852
is
to
be
narrowly
as
an
exception to the statute of limitations, giving effect to its
plain meaning does not violate that edict.
authority
were
issued
on
February
26,
Here, letters of
1996.
Plaintiff
therefore had two years from that date, or until February 26,
1998, to commence suit as long as suit was commenced within
three years of July 1996, the date signifying the end of the
applicable six-month limitation period.
Because suit was
commenced on October 23, 1997, it was timely.
Accordingly, we reverse the judgments of the circuit
court and Court of Appeals and remand this case to the circuit
court for further proceedings.
MCR 7.302(F)(1).
CORRIGAN , C.J., and CAVANAGH , WEAVER , KELLY , TAYLOR , YOUNG , and
MARKMAN , JJ., concurred.
8
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