Order Michigan Supreme Court
Lansing, Michigan
June 13, 2008 Clifford W. Taylor,
Chief Justice
135029 Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Maura D. Corrigan
NATHANIAL KYSER, PERSONAL Robert P. Young, Jr.
REPRESENTATIVE OF THE ESTATE Stephen J. Markman,
Justices
OF EDITH KYSER, DECEASED,
Plaintiff-Appellee,
v SC: 135029
COA: 276871
Wayne CC: 06-607231-NH
DETROIT MEDICAL CENTER and
DR. FRANCO ATTANASIO,
Defendants-Appellants.
_________________________________________/
On order of the Court, the application for leave to appeal the August 30, 2007
order of the Court of Appeals is considered and, pursuant to MCR 7.302(G)(1), in lieu of
granting leave to appeal, we REMAND this case to the Court of Appeals for
consideration as on leave granted.
CORRIGAN, J., concurs and states as follows:
I concur with the order remanding this case to the Court of Appeals for
consideration as on leave granted. I write separately to ask that the Court of Appeals
consider, among the issues to be addressed, the legal significance of the appointment of a
guardian after the malpractice claim accrued and after decedent Edith Kyser became
mentally incapacitated. The insanity saving provision, MCL 600.5851(1), provides:
Except as otherwise provided in subsections (7) and (8), if the
person first entitled to make an entry or bring an action under this act is
under 18 years of age or insane at the time the claim accrues, the person or
those claiming under the person shall have 1 year after the disability is
removed through death or otherwise, to make the entry or bring the action
although the period of limitations has run. This section does not lessen the
time provided for in section 5852. [Emphasis added.]
2
The legal significance of the “or otherwise” language in MCL 600.5851(1) seems to
relate to a guardian’s authority to bring suit on behalf of the incapacitated person.
Specifically, the relevant question is whether the disability was “otherwise” removed
when plaintiff was appointed decedent’s guardian and was authorized to commence an
action on decedent’s behalf.
CAVANAGH and KELLY, JJ., would deny leave to appeal.
I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the
foregoing is a true and complete copy of the order entered at the direction of the Court.
June 13, 2008 _________________________________________
p0610 Clerk