846 N.W.2d 419
Mich. Ct. App.2014Background
- In 2005, Connor Burton underwent a tonsillectomy; his EKG readout indicated “prolonged QT,” which Dr. Macha reviewed and initialed. No complication was noted then.
- Connor died suddenly in April 2009; autopsy showed no apparent cause. Genetic testing in September 2009 revealed a mutation associated with Type 3 Long QT Syndrome; his death certificate was amended October 13, 2009 to reflect sudden cardiac death from prolonged QT.
- Plaintiff (Connor’s father and personal representative) served a notice of intent on December 16, 2010 and filed a medical-malpractice complaint on October 13, 2011 alleging failure to diagnose and refer for treatment.
- Defendants moved for summary disposition under MCR 2.116(C)(7), arguing the claim was barred by the six-year statute of repose in MCL 600.5838a(2) because the act/omission occurred on June 21, 2005.
- Plaintiff argued the claim was timely under the six-month discovery rule (MCL 600.5838a(2)) running from the October 13, 2009 amended death certificate, and that the death-saving provision (former MCL 600.5852) extended time to commence suit (up to three years after the limitations period ran). Plaintiff also argued the notice of intent tolled limits.
- The circuit court denied defendants’ motion, applying the death-saving provision to permit filing; the Court of Appeals reversed, holding the six-year statute of repose barred the action and that neither the death-saving provision nor the notice of intent tolled or excepted the repose period.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the death-saving provision (MCL 600.5852) tolls or creates an exception to the six-year statute of repose for medical malpractice (MCL 600.5838a(2)) | Burton: death-saving provision allows the personal representative to bring suit within 3 years after the limitations period ran, effectively saving the claim | Macha: the death-saving provision does not toll or create an exception to the six-year statute of repose; only exceptions expressly listed in MCL 600.5838a(2) apply | Court held death-saving provision does not toll or except the six-year repose; repose expired June 21, 2011, so claim was time-barred |
| Whether the notice of intent tolled the six-year statute of repose | Burton: filing notice of intent tolled limitations and permitted timely pursuit of the claim | Macha: the 182-day notice period expired before the six-year repose period ended, so it did not toll the repose | Court held the notice of intent did not toll the repose because the repose expired four days after the 182-day notice period ended |
Key Cases Cited
- Hinkle v. Wayne County Clerk, 467 Mich 337 (standard of review for summary disposition)
- Sills v. Oakland Gen. Hosp., 220 Mich App 303 (C(7) properly granted when claim barred by statute of limitations/repose)
- Hanley v. Mazda Motor Corp., 239 Mich App 596 (accept plaintiff’s well-pleaded allegations on C(7) review)
- Auto-Owners Ins. Co. v. Allied Adjusters & Appraisers, Inc., 238 Mich App 394 (statutory construction reviewed de novo)
- Miller v. Mercy Memorial Hospital, 466 Mich 196 (phrase “period of limitations” in death-saving provision includes six-month discovery period)
- Revard v. Johns-Manville Sales Corp., 111 Mich App 91 (express inclusion of exceptions implies exclusion of others)