Miller v. Mercy Memorial Hospital

Michigan Supreme Court
Lansing, Michigan 48909
____________________________________________________________________________________________
C hief Justice Justices
Maura D. Cor rigan Michael F. Cavanagh

Opinion
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman

____________________________________________________________________________________________________________________________

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 limitations grounds, pursuant to MCR

2.116(C)(7). 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. The general period of

limitation for a malpractice action is two years. MCL

600.5805(5). There are additional provisions specifically

relating to 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

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 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). Suit against the relevant

defendants was not filed within three years from the

expiration of the two-year period of limitation. Defendants

argued the claim was therefore time-barred. 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

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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). We first review the language of the statute

itself. 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 been discovered by the medical malpractice

claimant. MCL 600.5852, simply refers to “the” period of

limitation. The provision does not limit or qualify which

period of limitation applies, the two-year period of

limitation rooted in § 5805(5), or the six-month discovery

period found in § 5838a(2). As a saving statute, § 5852

applies to whatever period of limitation is or may be

6

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 statute of limitations

applicable to the underlying claim.” Id. at 6. 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 As an alternative to the

other periods of limitation, it is itself a period of

limitation.

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.” That purpose is fulfilled by our

decision today. 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 that § 5852 is to be narrowly construed as an

exception to the statute of limitations, giving effect to its

plain meaning does not violate that edict. Here, letters of

authority were issued on February 26, 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.

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