Estate of Brian P Turner v. Christopher M Mohler Md, 327110

Decedent Brian Turner suffered a fatal allergic reaction after a medication administered in the ER on October 28, 2009; medication was given by nurse Melissa Thornton at direction of physician Dr. Christopher Mohler.
Mohler admitted he did not check the decedent’s electronic medical records before prescribing; he testified he asked the decedent directly about allergies and relied on the patient’s report (and the patient’s mother was present).
Initial personal representative (Teresa Turner-Sharp) was appointed December 18, 2009 and filed a wrongful-death complaint on March 21, 2012 (after the two-year medical-malpractice limitations period had run).
Successor personal representative (Scott Sharp) was appointed September 25, 2012 and substituted via a second amended complaint filed December 3, 2012; a third amended complaint later added malpractice counts.
Trial court granted summary disposition for defendants, holding the claims were medical malpractice (two-year limit) and were untimely under both the malpractice statute of limitations and the two-year wrongful-death saving period; plaintiff appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Nature of claim: malpractice vs ordinary negligence	Claim is ordinary negligence (failure to check records) — within common knowledge	Claim arises from professional medical decision-making — requires expert proof of standard of care	Malpractice: breach involves medical judgment beyond common knowledge; malpractice standard applies
Timeliness: original malpractice period	Original malpractice period expired Oct 28, 2011; plaintiff argues successor’s timely amended complaint revives suit	Defendants: original PR’s timely window lapsed; successor cannot revive an action that was untimely when first filed	Complaint was untimely; malpractice limitations bar suit
Application of wrongful-death saving statute (MCL 600.5852)	Successor’s appointment restarts two-year saving period so successor’s complaint is timely	Defendants: saving period cannot revive an action already untimely filed by predecessor; Eggleston limited to actions not previously untimely filed	Saving statute does not revive an action that was already untimely when filed by the original PR; dismissal proper
Three-year ceiling under MCL 600.5852	Three-year ceiling allows suit within three years after malpractice limit expired	Three-year ceiling only limits, not lengthens, the two-year saving period	Three-year ceiling does not cure untimely filing; cannot extend the two-year saving period

Spiek v. Department of Transportation, 456 Mich. 331 (standard of review for summary disposition)
Patterson v. Kleiman, 447 Mich. 429 (evidentiary treatment of (C)(7) motions)
Bryant v. Oakpointe Villa Nursing Center, 471 Mich. 411 (distinguishing malpractice from ordinary negligence)
Lipman v. William Beaumont Hospital, 256 Mich. App. 483 (MCL 600.5852 is a saving statute)
Eggleston v. Bio-Med Applications of Detroit, Inc., 468 Mich. 29 (successor PR may invoke two-year saving period when prior complaint not filed untimely)
Braverman v. Garden City Hospital, 275 Mich. App. 705 (successor PR reliance on predecessor’s timely filings)
Carmichael v. Henry Ford Hospital, 276 Mich. App. 622 (successor PR can use appointment date when original action not filed untimely)
McMiddleton v. Bolling, 267 Mich. App. 667 (successor cannot rely on predecessor’s untimely complaint)
Al-Shimmari v. Detroit Medical Center, 477 Mich. 280 (statute-of-limitations dismissal is adjudication on the merits)
Farley v. Advanced Cardiovascular Health Specialists, P.C., 266 Mich. App. 566 (three-year ceiling does not enlarge two-year saving period)
Holmes v. Michigan Capital Medical Center, 242 Mich. App. 703 (when pleadings/documents show no factual dispute, court decides timeliness as matter of law)
City of Novi v. Woodson, 251 Mich. App. 614 (same)
Babula v. Robertson, 212 Mich. App. 45 (summary disposition under (C)(10) standard)