*1 Borgess Boodt v Med Ctr MEDICALCENTER BOODT BORGESS 4,2006, April Docket No. 266217. Submitted at Detroit. Decided October 31, 2006, appeal sought. a.m. at 9:05 Leave to Boodt, Melissa estate of David Waltz, deceased, brought malpractice, wrongful a medical death against Borgess action in the Kalamazoo Court Circuit Medical Center; Lauer, M.D.; Excellence, A. and Michael Heart Center for ground EC. The moved dismiss defendants to on the that the plaintiffs comply requirements notice of intent failed to with the Schaefer, J., court, Fhilip agreed of MCL The D. 600.2912b. that and, the notice intent of was invalid because the limitations granted expired, summary disposition. had the defendants The plaintiff appealed. Appeals The Court held: specificity required 1. The for a notice of intent under MCL 600.2912b(4) indistinguishable specificity required from the malpractice complaint. plaintiff a medical must set forth the required by degree specificity information the statute with a put potential will defendants on about the notice nature against plaintiff brings of the claims them before suit. MCL only requires present 600.2912b that the information be in some form, however, readily decipherable any particular not that it be in format. properly against 2. The trial court dismissed the claims Bor- gess and Heart Center. The notice of under intent failed 600.2912b(4)(a) respect with to those A careful defendants. read- ing any they of the notice fails to reveal indication of how were factually underlying involved events how the or three medically defendants named this are related. case Even sophisticated guess reader to would need at the factual basis for against Borgess the claims Heart and Center. however, adequate, regard 3. The notice intent was with to Lauer. could While the notice intent have been structured more helpfully, adequately Lauer notified of the factual basis of the against stating paragraphs applicable claim him. The standard comply of care and the actions that have should been taken with merely paragraph describing reader standard refer the to the breached. These internal references how the standard of care was fatal, however, the material referred satisfies are not because phrased statutory though material is requirements. Even this take, negative failed to describes what actions Lauer in the guess required putative would not medical defendant be *2 alleged or she should have standard care or what actions he of intent, the in of the notice of facts taken. Viewed the context entire standard, case, proper pleading underlying the the and regarding perfunctory statement notice’s otherwise insufficient alleged explains of also how Lauer’s violations the causation death, required by care in the standard of resulted decedent’s 600.2912b(4)(e). Borgess The trial of and Heart Center with 4. court’s dismissal Appeals panel prejudice must This of the Court of be affirmed. binding precedent McElhaney, obligated McLean v to followthe of (2005), personal App a Mich which held that when 196 untimely action, filed an a successor has representative is suit. Because not entitled to commence a new brought untimely against Borgess plaintiff action and Heart an filing respect as a of a defective notice of intent with Center result them, any personal representative succeeding precluded her is to bringing from new suit. Were not constrained to follow a McLean, however, that, would under MCL conclude Detroit, Inc, Applications and Bio-Medical 600.5852 v of (2003), every personal representative entitled to authority years receipt after of his or her of within two letters subject five-year repose period, complaint, to file a to the which irrespective any predecessors, and thus order that would Borgess respect and dismissal with Heart Center be without prejudice. part, part, in in for Affirmed reversed and remanded further proceedings. EJ., concurring, joined Judge opinion, in but Davis’s White, separately regarding wrote to make additional observations Specialty Verbrugghe Hosp- conflict between McLean and v Co, (2006), Inc, which came to the Macomb opposite as McLean. factual distinctions between conclusion types Judge opinion in the four cases identified Chief Whitbeck’s application support Eggleston, do not differential which held any be entitled successor would to a two-year judicata separate bring in which to suit. Res does require prejudice. not action be dismissed with C.J., concurring part dissenting part, and Whitbeck, agreed majority’s regarding adequacy conclusions with Borgess Boodt Med Ctr Davis, J. intent, disagreed respect notice of but that the dismissal with prejudice. Borgess and Heart Excellence should be without McLean correctly decided, Verbrugghe and a conflict instead with should categories concerning be declared. Of the four of cases a successor ability action, representative’s pursue action this personal representative’s attempt involves to file new predecessor’s filing untimely to overcome of an action action. As 700.3613, recognized, McLean under MCL the successor status, predecessor’s or her inherits and his untimely substitution into an action would be futile. Turner, (by Turner), & P.C. L. for Turner Matthew Boodt. Melissa (by
Smith Rice & Henn Haughey Roegge William L. Carlson) and D. for Borgess Carol Medical Center. Coté, Willingham & P.C. (by Curtis R. and Hadley Dalton), Lauer, M.D.; Michael James L. for A. and Heart EC. Excellence, Center C.J., EJ., Whitbeck, J. White, Davis,
Before: *3 DAVIS, J. Flaintiff appeals as of the trial court’s right death, dismissing order her medical wrongful malprac- 2.116(C)(7) (C)(8). pursuant tice claim to MCR and The trial prejudice court dismissed this action with because plaintiffs found notice sue, of intent to 600.2912b, inadequate, resulting being in the suit un- timely. reverse the respect We dismissal will to the doctor, prejudice individual we affirm the dismissal with corporate defendants, with to the respect and we re- mand the case. affirm the with respect
We
dismissal
with
prejudice
corporate
to the
defendants only because we are bound
holding
to
the earlier
Court in
follow
of this
McLean
(2005),
McElhaney,
App 196;
that, obligated we were prejudice. dismissal to be without would order the
I. FACTS
2001,
ad-
6,
On
decedent David Waltz was
October
for treatment of
Borgess
mitted to
Medical Center
Lauer,
Michael
cardiac
Defendant
Andrew
complaints.
M.D.,
coronary
transluminal
performed
percutaneous
(PTCA) on
During
pro-
the decedent.
angioplasty1
cedure,
coronary
perforated
Lauer
the decedent’s
Dr.
Dr.
artery,
bleeding.
massive
At his
causing
deposition,
perforation directly
Lauer admitted that the
caused
13,
injury.
January
On
decedent to die of anoxic brain
2003,
600.2912b,
pursuant
plaintiff
to MCL
served
Plaintiff
to
filed a
defendants with notice
intent
sue.
19,
moved to
complaint on June
2003. Defendants
intent
ground
dismiss on the
that
notice of
plaintiffs
statutory requirements.
failed to
with the
comply
trial
that
agreed
court
the notice
intent was invalid
and,
expired,
limitations had
because
2.116(C)(7)
dismissed
action
to MCR
pursuant
(C)(8).
and,
Plaintiff
in the alter-
appeals
dismissal
native,
any
should have been
argues
dismissal
permit
without
her successor
prejudice
complaint.
to file new
II
REVIEW
STANDARD OF
A grant
summary disposition
or denial of
is reviewed
novo on
if
de
the basis
entire record
determine
judgment
is entitled
a matter of
moving party
angio
procedure
This is medical
is also known as “balloon
plasty”
“angioplasty.”
inserting
balloon-tipped
simply
It
a thin
or
entails
artery
narrowed,
frequently
plaque
tube into
that has
because of a
*4
buildup
clot,
inflating
purpose
or a
The
is widen
and then
the balloon.
to
artery
to facilitate blood flow.
Borgess
Boodt v
Med Ctr
by
J.
Davis,
Rozwood,
109, 118;
law. Maiden v
597 NW2d
(1999).
2.116(C)(7),
Under MCR
if the claim is
barred,
allegedly
accept
the trial court
true the
must
they
contents
unless
are
complaint,
contradicted
by documentary
by
moving
evidence submitted
Id.,
party.
p
2.116(C)(8), only
119. Under MCR
considered,
pleadings are
motion
should be
only if
granted
Id.,
the claims are legally unenforceable.
pp
statutory
119-120. Issues of
interpretation present
questions
law and are therefore also
de
reviewed
Schools,
novo. Rohde v Ann Arbor Pub
265 Mich App
(2005).
702, 705; 698
NW2d
in. LEGAL STANDARDS APPLICABLE TO NOTICES OF INTENT
A medical malpractice
required,
claimant
among
other prerequisites
commencing suit,
provide
health facility or
practitioner with written
notice
setting
intent
enumerated
statutorily
forth several
statements
600.2912b;
about the intended suit. MCL
Remand),
Roberts v Mecosta Co Gen Hosp (After
(2004).
679, 685-686;
The notice to a professional health or health facility under this section shall contain statement of following: least all
(a) The factual for the basis claim.
(b) applicable The practice alleged standard of or care the claimant.
(c) The manner in which it is that the applicable claimed practice standard or care was breached the health professional facility. or health
(d) alleged action that should have been taken compliance alleged achieve practice with standard of or care. *5 App
626 621 272 Mich Opinion by J. Davis, (e) the alleged the of The in which it is breach manner the proximate of or care the cause practice standard of injury claimed in the notice.
(f) professionals all and health The of health names notifying is under this section facilities the claimant to relation the claim. the that all of required not to ensure
A claimant
good-
correct,
the
must make
are
but
claimant
above
that
forth
with
information]
effort
“set
[the
faith
to
defen-
potential
the
specificity
put
of
which will
degree
against
the
of the claim
dants on notice as to
nature
The
of
Roberts,
p
expected level
supra,
them.”
701.
light
considered in
of the fact
specificity must be
Id.,
691. The
discovery
yet
begun.
p
not
have
would
to
“allow
defendants
only
potential
details need
the
mal-
claimed
of the impending
understand the
basis
Id., p
. . ..”
692 n 7.
practice action
the
intent
specificity required
notice of
functionally indistinguishable
appli-
from
standard
general
civil
This
has ob-
complaints.
cable
Court
of
contain a ‘statement
complaint [must]
served “that a
reason-
‘specific allegations necessary
the facts’ and the
of the
ably
party
to inform the adverse
of
nature
against
Mortgage
it.”
Corp
claims’
Nationsbanc
Geor-
of
560, 566;
v
385
gia Luptak,
NW2d
2.111(B).
(2000), quoting
malpractice
Medical
“
so
‘advise
defendant
pleaded
claims must be
as to
according
the circum-
certainty,
with reasonable
case,
upon
plaintiff
of the facts
which
stances
to rely,
prove
and will seek to
....’” Simonelli
proposes
(1953),
635, 644;
Mich
An
defense,
required by
affidavit of merit or an affidavit of meritorious
as
600.2912e,
Fiutowski,
pleading.
MCL
or
600.2912d MCL
is a
v
Kowalski
156,
2.112(L).
App
163-164;
(2001),
247
citing
Mich
It is therefore a are pleadings that all and basic fairness jurisprudence party they opposing if communicate sufficient purport pleadings or those of the claims defenses nature by contrary expression of a to raise. the absence “[I]n not to principles are common-law Legislature, well-settled statutory guise in the by implication be abolished & Indemnity Accident Marquis construction.” Hartford Remand), 638, 652; 513 NW2d (After (1994). law,... derogation “in of the common A statute must be may good public, be for the though it enforced strictly,... provisions can be [its] construed Sibley v they clearly expressed.” farther than are no (1853). Smith, 486, no clear perceive We impose a Legislature that we should expression mere of an on a notification specificity burden of heavier itself. complaint claim than on the impending Furthermore, explained Court has Supreme our only requires the information for 600.2912b present readily decipherable in some categories be Roberts, form, any particular it format.” not that “be Thus, although pieces these supra, p separating 696. may be separately paragraphs headed information into better reader, may and therefore be the useful as the necessary long no means practice, actually be found somewhere information can required *7 difficulty. in the document without IV THE NOTICE OF INTENT HERE agree that the notice of intent at issue here could We more but we decline to helpfully, have been structured analysis any of the notice in isolation. Our part read the notice required contains examines whether information, any specific portion whether not notice does. y Borgess Boodt Med Ctr Opinion by J. Davis,
A reading careful of the notice of intent fails to reveal any indication of Borgess how Medical Center or Heart Excellence, EC., Center for is in the underlying involved of intent events. notice does not even indicate how the three named defendants are related. Even medically sophisticated reader have guess would to at the factual making basis for against Borgess claim Medical Center or Heart for Excellence. Therefore, Center the notice of necessarily intent fails with respect Borgess Medical Center and Heart Center for Excellence for set failing forth a against statement of the factual claim basis 600.2912b(4)(a). them, required by Conversely, regarding Lauer, Dr. the notice states that “the factual basis for the 6, claim” is that “[o]n October 2001, Mr. presented Waltz to defendants for an elective PTCA. During procedure, the defendant caused a perforation which lead to Mr. [sic] Waltz’ death.” There is no guesswork in deducing involved that “the defendant” only refers to the named defendant is an who individual in his right and, own therefore, physically capable of taking the actions in the resulting perforation. A layperson might not is, know what “an elective PTCA” it highly but unlikely that medical professionals would not understand their own abbreviations simply because are they placed in legal Therefore, context. notice intent adequately notifies defendant Dr. Lauer of the factual basis alleged claim against him.
The paragraphs purporting to state the applicable standard care and the actions that should have been taken to comply with the standard of merely care both refer the paragraph reader containing the man- ner in which the standard of care was breached. Given our Supreme explanation Court’s that no particular format followed, need be elevating form over function to find paragraphs these insuffi- necessarily
Opinion J. Davis, Roberts, of intent contained similar In the notice cient. Roberts, supra, pp 696-698. How- internal references. internal ever, did not hold that such Supreme Court our degrade in the notice’s usefulness any way references did simply the notice of intent Rather, se. Roberts per Id. The format necessary information. contain the not merely to combine purports intent here of the notice of (d) 600.2912b(4)(b), (c), and of MCL requirements the risky a Although might a this be single paragraph. into ap- misconstruction and lends itself to practice deficiency. we inherently Again, fatal it is not an peals, as whole. review the notice a contains 28 referred to the notice paragraph by defendant. Plain- wrongdoing
individual assertions of 21 of are mere that the first these apparently tiff admits they to be little more than boilerplate, appear and indeed that our Court deemed generic Supreme the statements However, the subpara- seven of inadequate in Roberts. allegedly defendant specific forth actions that graphs set take, breaching applicable standard thereby failed to distinct, subparagraphs cleanly are of care. These seven and, boilerplate lan- though they even follow phrased, reader of the they any way Any are not in hidden. guage, specific aware of the help document could not but become alleged against being Dr. Lauer. Because breaches he only applying notice as whole could construed defendant, necessary it is not against individual allega- name him for reader to understand that these him. only against subpara- These seven tions are leveled 600.2912b(4)(b) satisfy the of MCL graphs requirements (c). They are as follows: and procedure when the v. Failed earlier terminate the wire; initially lesion could not be crossed with recognize stop timely perforation and w. Failed to anticoagulation echocardiogram; order an V BOODT BORGESS MED CTR J. Davis, timely x. Failed pump insert balloon after perforation recognized;
y. timely perform pericardiocentesis Failed to once *9 perforation recognized; was perform repeat
z. Failed attempts pericardiocente- to of failed; sis after the first timely surgeon perfora-
aa. Failed to contact a once the recognized; tion was keep descending [left
bb. Failed to the LAD anterior artery] place in in wire order to maintain access to that vessel.
Although these subparagraphs phrased are in the nega- tive, i.e., stating what take, actions defendant to failed presume there is no reason putative to that a medical defendant would be forced to guess alleged standard care, or at the actions he allegedly should have taken to with comply care, the standard of from these negatively phrased if, statements. Our Supreme Court noted that a example, physician is to have alleged amputated the limb, “it wrong would be a obvious to casual observer” that the physician should have amputated the correct Roberts, limb. supra, 694 n 12. p Supreme Our Court did not consider a failure to diagnose ectopic pregnancy to obvious, so he but that the context a circular to statement the effect that the standard of care was the Id., standard care. 695 n 12. p Here the standard of care to explicitly negatively phrased refers statements. In case, this no guesswork is required appreciate that the standard of care is to have taken the actions that defen- allegedly dant failed to For reason, take. the same it is obvious that plaintiff alleges that defendant should have taken those actions order to with the comply standard of care.
Finally, states, the notice of intent “If the standard of followed, care had been Mr. Waltz would not have died by Davis, J. statement, perfunctory 11, This on October 2001.” explain itself, be insufficient how taken would of the standard of care alleged violations defendant’s death, as required in the resulted 600.2912b(4)(e). However, in the it must be viewed document, underlying facts context of entire The notice of case, standard. proper pleading intent, whole, a Dr. Lauer was conduct- reveals that that involved major on a blood vessel ing procedure vessel, during the and that inserting a wire into Dr. perforated Lauer the blood vessel. procedure Dr. might permit- have steps Lauer then failed take vessel, surgeon to such as repair ted him or a anticoagulant,3 per- of an stopping the administration surgeon, and pericardiocentesis,4 notifying forming maintaining vessel. access to blood make
Although terminology much would sense *10 medicine or a only knowledgeable about to someone are, fact, all medical defendants medical professional, operated medical facilities medical professionals or no event, guesswork In there is real any professionals. coming to the conclusion that Dr. Lauer involved artery, causing bleeding a hole in an massive poked prevent was not in time to the decedent’s stopped Finally, the of the notice of intent is to purpose death. against specified parties. a claim give notice of Defendants, professionals, presumably keep medical procedures undoubtedly of their medical records mishaps patients. their Before any recall unusual with discovery begun, has it is defendants who have the most ready essentially all the information about a access to Under the standard we have articu- given pleading case. lated, only obligated medical to malpractice plaintiff clotting. drug prevents A chemical blood from or procedure surrounding the A draw fluid out of the sac heart. to Borgess Med Boodt Ctr J. Davis, provide defendants with against notice the claims presuit them at a stage The defen- proceedings. dants in their possession have most the pertinent facts from their own records. It credulity strains to conclude that they would not understand the nature of the suit against reading them after the notice of intent Therefore, here. this notice of intent all meets 600.2912b(4) of MCL requirements respect with to Dr. Lauer.
We therefore conclude that the notice of intent here adequate with to respect Dr. Lauer and inadequate respect Borgess with Medical Center and Heart Center for Excellence. The trial court therefore should not have Lauer, dismissed the claim against Dr. but it properly dismissed the against Borgess claims Medical Center and Heart Center for Excellence.
V DISMISSAL WITH OR WITHOUT PREJUDICE argues Plaintiff then any dismissed, that if claims are they should be dismissed prejudice without so that a new could be Plain- appointed. tiff argues that the wrongful death saving provision, 600.5852, grant would representative additional time in which to commence a holding, new suit. Given our respect this moot with Lauer, Dr. but we nevertheless address because we agree that the notice of intent was insufficient and dismissal was appropriate respect thus with two facility medical defendants. 600.5852,
Under MCL the personal representative of a decedent years has two receipt after letters of *11 in authority which to commence wrongful a death action on malpractice. based medical This provision state, not specifically words, does in many so a whether successor personal representative receives an indepen- App Mich by J. Davis, Our to suit. in which commence two-year period
dent this in v addressed issue Supreme Court Detroit, 29; Inc, 468 Applications Bio-Medical (2003). Our Court unani- Supreme 658 NW2d at- had, previous held Court our mously this 600.5852, “mis- erroneously tempts interpret inserting ‘the’ before ‘letters the statute quoted ” ex- Thus, Court Id., Supreme our authority.’ p 32. plained: clearly Legislature language allows adopted years brought within two after letters of
an action be authority representative. The personal issued to the are two-year provide is mea- statute does not authority from date letters of are issued to sured [Id., representative. personal p 33.] initial Therefore, Supreme that a our Court held successor new, representative independent receives a suit, commence two-year period which to albeit five-year repose he or does so within the long as she period. opinions addressing has two published
This Court
here:
the first
specific
presented
the more
situation
untimely action,
representative has filed an
file
and a
seeks to
successor
her
new
overcome the untimeliness of his or
action to
those two
Significantly,
opinions
action.
predecessor’s
In
results. McLean
opposing
reached
and irreconcilable
196;
(2005),
McElhaney,
269 Mich
Under our
panel
court
“[w]hen
confronted
conflicting
with two
opinions published after November
1,1990, the
obligated to
opinion
follow
first
issued.” Auto-Owners Ins Co v
Harvey,
App
(1996).
466, 473;
VI. CONFLICT WITH McLEAN However, believe, we as did the Verbrugghe panel, that McLean incorrectly was decided because it simply failed to follow the plain rule articulated the statute our Supreme Court. In Eggleston, personal representative complaint filed a within two years appointment, of his but years more than two after the first appointed. was Egg- leston, supra, 31. That p fact that our only MICH 621
Opinion by J. Davis, straightforward to its relevant Court deemed Supreme every simple and the rule reading the statute after years is entitled to two authority within which to or her letters of receipt his any predecessors. irrespective file a complaint, Therefore, that a successor Eggleston holds new, independent indeed receive a does suit, albeit as to commence two-year period which repose five-year he she does so within the long as or *13 The predecessor’s a failed suit. period, irrespective of distinction, any a panel applied factual without McLean set in the statute authority, explicitly that is not forth Supreme and not identified as relevant our was was erroneous. Court. We believe that this in relevant that MCL 700.3613 states recognize We and a successor part, appointment qualification, “After in all ac- must be substituted personal and the former tions which proceedings Thus, if the party.” predecessor was a representative a actually filed a and succes- representative complaint is appointed complaint sor while must be substituted pending, the successor follow, however, commenced claim. It does not already preju- that the dismissal here should have been with only decided in this case is that dice. issue insufficient and that the action notice intent was on that A on must be dismissed basis. dismissal this prejudice never be with because it is basis alone would not a on the merits. Dorris Detroit Osteo- decision 26, 47; 594 Corp, 460 Mich NW2d 455 pathic Hosp (1999). It separate question period is a whether the tells expired. limitations has While Roberts us period complaint of limitations is not tolled when intent, preceded plaintiff notice of insufficient limitations. tolling rely does not on Rather, that her plaintiff asserts successor Borgess Boodt v Med Ctr Opinion by J. Davis, (who 2005) appointed May 24, on 6, had until complaint. October 2006 to file a Under MCL 600.5852 and this is Eggleston, correct. We believe the dismissal with to the respect corporate defendants should have been prejudice, without and we perceive no why reason MCL 700.3613 should analysis. affect our Despite our belief that McLean was wrongly decided, 7.215(J)(1) required by arewe MCR to follow it. There- fore, above, as stated dismissal of the claims in this case respect with to the corporate must defendants be with However, recommend, prejudice. we pursuant to MCR 7.215(J)(2) (3), and this case be submitted to a special panel resolve whether a successor representative may, 600.5852, under MCL receive new two-year period in which file suit thereby over- come a predecessor’s untimely filing.
VII. CONCLUSION the only We note that disagreement substantive on this concerns whether McLean was correct in its application of MCL 600.5852 to representatives’ attempts to file after actions predeces- *14 sor representatives untimely filed actions and a panel whether conflict should therefore be convened on that panel narrow basis. This is otherwise unani- regarding mous the that law is on There binding us. is no disagreement about the standard of pleading appli- cable to notices intent or the conclusions that notice of intent here adequate respect with to Dr. inadequate Lauer but Borgess with respect Medical and Center Heart Center for Excellence. dismissing against order the claim defendant Dr.
Lauer dismissing is reversed. The order with prejudice against Borgess the claims Medical Center Heart and 621 272 App Concurring Opinion White, EJ. re- The matter is is for Excellence affirmed. Center not do retain proceedings. We for further manded jurisdiction. Judge join I in (concurring). P.J. DAVIS’s
WHITE, to make a few additional separately and write opinion v between McLean the conflict regarding observations (2005), 196; 711 App 269 Mich NW2d McElhaney, Co, Hosp-Macomb Select Verbrugghe Specialty and v (2006). Inc, 383; 715 NW2d 270 Mich holding that Judge I conclude McLean’s Like DAVIS, entered in case was properly that the dismissal that Further, I conclude that with is incorrect.1 prejudice of cases types between four factual distinctions not Judge opinion in do identified Chief WHITBECK’s Bio- v support application Eggleston differential Inc, Detroit, 29; 468 Mich Medical Applications of (2003). NW2d 139 a defined as cases “when successor group
The first
is
to file an action be-
representative attempts
representative never
predecessor
cause the
is such a case.
filed an
Post
652.
action[.]”
here,
by Judge
DAVIS
Verbrugghe,
As observed
Verbrugghe in
I
that
instant case differs from McLean and
observe
that, here,
provide a
first
was dismissed for failure to
sufficient
action
(NOI),
Verbrugghe
while McLean and
concerned
notice of intent
sue
642;
light
Wyse,
of Waltz
the timeliness of
first actions in
(2004).
not, my view,
this distinction should
lead
Also case, classified a as in which the properly Court concluded that the second representative’s timely Eggleston, action was under Falkenberg, unpublished opinion per Rheinschmidt v Appeals, curiam of the of Court issued March 30, 2006 (Docket 261318).2 original Rheinschmidt, In No. (NOI) personal representative mailed a of intent notice April years on more than two after the date 28, 2004, (July 18, decedent’s death but within two 2001), 2 Application appeal abeyance pending for leave held decision Washington Hosp Detroit, v Sinai unpublished opinion per Greater (Docket Appeals, 1, curiam of the Court issued 2005 No. December (2006). 2006). 253777), gtd (Mich, lv Mich See 721 220 NW2d Concurring EJ. White, on appointment her
years *16 however, suit, on and never filed 11, 2002. She June 16, 2004, probate court issued letters September on commenced suit to the who authority plaintiff, personal represen- 28, original 2004. Had October waiting mandatory after the NOI tative filed an action time-barred under claim have been period, the would concluded However, Rheinschmidt panel3 Waltz. by cases defendants have no and the related cited Waltz here in the successor effect on the situation which timely § solely under 5852. representative’s complaint was supra, Supreme our Court addressed the Eggleston, In personal representative a has two issue whether successor years appointment to on behalf of an after file an action saving wrongful where the under death statute estate complaint representative died before a was initial rejected 30. this Court’s “narrow filed. Id. at The Court contrary, repre- held that a reading” to and successor saving own could make use of his additional sentative period....
Here, representative, original personal who was 11, 2002, years authority had two issued letters of on June date, 11, 2004, from until June to commence But she wrongful malpractice death medical action. never complaint. appointed per- filed Flaintiff successor authority on representative, sonal and issued letters of 16, plaintiff, September § Under 5852 as succes- 2004. the date his personal representative, sor had from 7, 16, 2004, 2006, appointment, June September until expiration malpractice years three after the of medical bring wrongful period, death medical mal- hmitation practice estate. Plaintiff claim on behalf the decedent’s 28, 2004, complaint filed on less than two his October authority his issued. months after letters were Because personal representative, plaintiff, filed a successor complaint years authority within two after letters of were him, years than three after the medical issued to and less panel. Judge Whitbeck was on this Chief BOODT BORGESS MED CTR V Concurring Opinion by White, E J. run, malpractice period of limitations had the action was timely. 600.5852; Eggleston, supra.4 reject We further that Egg defendants’ contention properly applicable only leston is to situations where a by necessity appointed successor rather limitation, than choice.MCL 600.5852 no contains such plain language we decline read into the Further, the present distinguishable statute. we find case McElhaney, [], from McLean v because purported in McLean the comp untimely, valid, tried to revive but otherwise Here, plaintiff untimely is not trying revive an laint.[4] complaint filing an original complaint but rather under the two-year saving provision him afforded to the issuance authority. of his letter of
[Rheinschmidt, slip op 4-5.] recognized by footnote, As the Rheinschmidt there nois basis to limit MCL 600.5852 cases in which to the representative successor is appointed by necessity. Fur- ther, there is no on to basis which limit it to in cases the original personal which representative go does not through the filing motions of an untimely only suit. The Rheinschmidt, distinction between case this and other than the fact that an this is NOI case and Rheinschmidt case,
is a Waltz that here the first personal represen- tative filed an action following NOI, the deficient and 4 reading, Upon appears panel may first that the Rheinschmidt have (in group-three personal mistaken McLean for a case which a successor representative attempt action, attempts does not to file a new to hut action) previously untimely a distinguished revive filed because it attempt untimely, on McLean the basis that it involved an to an revive valid, complaint, filing but otherwise while Rheinschmidt involved the original complaint. However, “revive,” opinion an while the uses the word panel likely drawing the was more a a case in distinction between which complaint untimely had been filed and to determined be and in one previously no which case had been filed. 621 272 Mich by Concurring White, EJ. untimely, and, in thus dismissed
that action was Rheinschmidt, representative never personal the first suit, already time-barred and which was filed the first it been filed. The had would have been dismissed case, one that, only this fact can be significance of and, other, in the no such judicata apply res principles actually no suit was are involved because principles for failure file a satisfac- However, a dismissal filed. not grounds, on on procedural is a dismissal tory NOI merits, ordinarily is not dismissal with and Corp, Osteopathic Hosp Dorris Detroit prejudice. (1999). 47; a dismissal is 26, NW2d 455 Such impossible when it be only prejudice entered with would very reasons bring another action. Because Rheinschmidt, such impossibility no expounded present here. of cases the dissent is group
The second described “a representative in which tried to predecessor file an action when attempts was not authorized to do Post at so[.]” file action but Assoc, Myers PC, unpublished 652. In v Marshall Med issued opinion per Appeals, curiam of Court (Docket 264667) 23, ID, (Myers March No. same as in Rheinschmidt found that second panel by the was not barred first action, untimely the dismissal of which representative’s I6 Myers panel had been affirmed on basis was removed first he found before filed NOI suit. controlling. certainly One can see the distinc case, in that the Myers tion between II and instant *18 had the author- initial 5 Application appeal abeyance pending to held decision in for leave in 2006). (Mich, Washington, supra. See 720 298 NW2d 6 Assoc, PC, Myers unpublished opinion per Med curiam the v Marshall (Docket 262590) I). (Myers 15, Appeals, issued December No. Court BOODT MED V BORGESS CTR Concurring Opinion White, EJ. ity I, to file the and, Myers instant action here the Thus, lacked plaintiff authority. Myers cases, in the if the had was as first action never been filed. The remained, however, question whether the second per- given sonal could file suit her date of appointment, and the held that under Eggleston could, rejecting very she distinctions the Rhein- schmidt defendants had sought draw. case,
In another group-two Jackson v Henry Ford Sys, unpublished Health curiam of opinion per (Docket Court of Appeals, January 17, issued No. 263766),7 the made panel pertinent observations to the judicata res issue: summary
It is trae that under some circumstances “a
disposition ruling
procedural equivalent
is the
of a trial on
relitigation
judi-
principles
merits that bars
on
of res
Here, however, Wayne
ruling
cata.”
Circuit Court’s
personal representative]
[the
Pickett’s
first
earlier cases
underlying
did not
address
merits of the
substantive
significantly, Wayne
claim. Most
Circuit Court could
wrongful
claim,
not have
despite
addressed the
death
attempted
it,
fact that Pickett
proceed-
to raise
because the
ings only addressed the issue of
properly
whether Pickett
brought suit on behalf of the estate. Whether Debra
during
bring
Jackson has additional time
which she could
presents
separate question
suit
requires
appli-
cation of different
law additional facts that Pickett could
not
Self-evidently,
have raised in his suits.
Debra Jackson
had not
appointed
Wayne
been
successor until
after
Circuit Court
Accordingly,
dismissed Pickett’s suits.
Pick-
ett’s earlier suits did not—and could not—resolve the
Wrongful
matters to be contested in
Death Suit No. 4.
Barring Wrongful Death Suit No. 4
not
would
fulfill the
judicata
purposes of the
prevent
res
doctrine: it would not
7 Application
appeal
abeyance pending
held in
leave
decision in
2006).
Washington, supra.
(Mich,
See
the [Jackson, never, fact, litigated. slip op at of action was original.] (emphasis in 7-8 here. The instant suit apply equally These observations reason that NOI was dismissed for sole was on the merits. adjudication not an This is insufficient. a successor Further, question whether appointed, has not even been will who representative, suit, years two in which to file himself or herself have limitation, three-year is not limited the overall litigated. not be properly presented should Joe, unpublished opinion per In Mitchell-Crenshaw February 7, 2006 Appeals, of the Court of issued curiam (Docket 263057),9 case, group-two another No. a month representative appointed initial was exactly She filed an NOI two after the decedent’s death. filing her Four months after years appointment. after NOI, authority was personal representative’s later, reopened was terminated. Six months estate appointed. was and a successor representative sent another The successor and filed six days appointment within of her suit NOI The Mitchell-Crenshaw reversed months later. personal representative’s of the successor the dismissal claims, concluding that the claim was malpractice timely Eggleston: under Eggleston, supra, Supreme
In a unanimous Court de- solely statutory language of cided the case based on the wrongful saving provision. death The short decision... appointment does not examine the reasons behind the personal representative, urge as defendants us to do here. 9 Application appeal abeyance pending held in decision in for leave 2006);
Washington, supra. See 720
(Mich,
Defendant asserts that temporary personal representative because the died years appointment within two and the successor was years appointed within two after the first However, appointed. significance was we fail to see Eggleston, these facts. In the successor years appointed more than two after the decedent’s *20 death, complaint years and the filed was more than two appointment. after the initial attempt [sic] Defendants’ distinguish the instant on case the basis that the by representative statute had run the time the successor appointed ignores was that the statute is intended to permit an representative action even where the ap is pointed only after the statute has run. The constraint is that the action cannot be commenced more than three years after the statute of has run. [Mitchell- limitations Crenshaw.,slip op at 4-6.] It appears that might Mitchell-Crenshaw more accu- rately be group-one, classified as a rather than a group- two, case because initial personal representative had authority authority to act. Her simply was termi- nated during the six-month notice period, and she never filed suit. The case similar seems to Rheinschmidt in regard. this significant What is is that in Mitchell- Crenshaw, the original personal representative’s suit would have been time-barred had brought she it. As Rheinschmidt, with I see no reasoned basis to distin- guish the cases simply because the suit that would have been time-barred in the hands of the initial personal representative actually was not only filed and was filed in the first instance representative, successor whose appointment necessary to save the otherwise time-barred action. The only instant case differs in that personal representative first here actually brought suit using deficient NOI. MICH Concurring Opinion White, EJ. “a those in which encompasses of cases group
The third to file a attempt did not representative personal successor to revive or reinstate attempts instead new action but In- at 652-653. untimely aetion[.]” Post filed previously ground on the deed, distinguishable cases are these right has a representative the successor while can indicate that he or she anew, nothing there is begin action, untimely which is prior representative’s revive the no cases. Here successor attempted those what was and the issue appointed, had been personal representative prejudice. be with the dismissal should simply whether “a as those cases which group The fourth is described to file a attempts new successor filing untimely of an predecessor’s to overcome a action case. group-four The instant case is a action.” Post at 653. grounds distinguish- I find no previously, As explained group King Briggs, unpub- from one. In ing group this Appeals, of the Court of issued opinion per lished curiam (Docket 259229), it 12, 259136 and Judy Nos. was the initial plaintiff unclear whether representative or a It untimely appointment. to save an suit with his seeking already had the successor appears *21 by the court to substi- appointed required been was initial action. tute case, v Health- group-four Young Spectrum
Another per curiam City Campus, unpublished opinion Reed (Docket 18, May issued No. Appeals, the Court solely on the 259644), distinguished basis Eggleston “[ujnlike the insufficient plaintiff Eggleston, tolling remained after additional time observance inapplicable rule is under Eggleston provision. It from this terse state- appears these circumstances.”10 distinguished Eggleston on basis Young ment McLean, 3, App Young, slip op citing at 201-202. BOODT V BORGESS MED CTR Concurring Opinion by White, EJ. already predecessor’s that the statute had run on the complaint, present, group- however, fact that is in the one cases cited.
Finally, there McLean, is McLean. In the circuit permit voluntary court’s refusal to dismissal without prejudice sothat a new couldbe appointed to file suit was affirmed under an abuse of panel rejected plain- discretion standard. The McLean Egg- tiffs reliance on on the basis that in represented leston the estate was for a total of IOV2 years, predecessor months rather than two and the personal representative had I died. conclude that the many including Verbrugghe, cases, Rheinschmidt, and distinguish Mitchell-Crenshaw, Egg- that declined to correctly leston on Egg- this basis were decided. The holding statutory language, leston is based on the which contemplate does not these distinctions. additionally
The McLean Court determined that a prejudice inappro- dismissal without would have been priate legally prejudice because such a dismissal would the defendants:
An
granting summary
order
disposition
adjudica-
anis
tion on the
Capital
merits.
Mortgage Corp Coopers
&
Lybrand,
(1985).
531, 536;
plaintiffs’ [McLean, App 202-203.] Mich at reliance on Court’s agree with the McLean I do not that the dismissal proposition for the Mortgage Capital anwas untimely under Waltz McLeans’ action as of the Mortgage, In Capital the merits. on adjudication right its that the defendant waived Court determined summary judg- motion for when it filed its arbitrate rationale this “[t]he The Court stated that ment. procedural is the summary judgment rule is on the merits judgment a trial and is a equivalent judicata.” on of res relitigation principles bars which 536. sum- 142 Mich at When Mortgage, Capital it grounds, on substantive mary disposition granted a trial on the indeed, the is, procedural equivalent de- However, procedural motion on granted merits. one not decide the merits case. No fects does another, adequate that had sent NOI questions plaintiff thereafter, the earlier dismissal timely action and filed action. subsequent been a bar to would not have Dorris, at 460 Mich 47. and decided actually litigated pertinent issue respect to
here is whether the NOI was sufficient. With defendants, we affirm the determination corporate Hosp not. Under Roberts v Mecosta Co Gen that was Remand), (2004), 679; 684 NW2d (After a determination that that determination amounts to to those defen- timely respect the action not with whether the dismissal separate question dants. It is a to provide The failure prejudice. have been with should not in failure that does procedural NOI is a adequate Dorris, 460 prejudice. with itself lead to a dismissal factor makes it only It when another 47. dismissal, the action that the which to save impossible is entered with normally prejudice, would be without Borgess Med Boodt v Ctr Concurring E J. White, *23 Roberts, 701-702. If there is still supra at prejudice. potential within successor personal repre- time which compliance require- file suit in the might with sentative Waltz, 600.5852, of and provisions, ments the MCL NOI reasons other than the merits should a dismissal for be prejudice, question and the whether a entered without subsequent be in timely suit should addressed that action. sum,
In I no meaningful find distinction between the in it is agreed cases which that the successor are representatives years entitled to two in to file which and cases, the instant case. In those the suit representatives years had a full two authority in which to and file suit failed do so. The successor permitted revive personal representatives were following claims their that appointment. The fact personal representatives first did not untimely file the in cases claims those should not make a difference if the claims were those were Clearly, given barred. estates very same “second the apple” bite at that McLean and the here find dissent unwarranted. Post 664. The granted by Legislature second bite is without limi- tation, until years passed three running have from the the period At that point, limitations. all authority to file ceases. Up claims until that point, long as is no adjudication merits, there on the per- successive representatives may procedural sonal cure defects. likely, legislative Most recognition this is in approach capacity in which a personal repre- and that a sentative serves the fact representative who diligently pursue rights fails to nega- of an estate tively rights any event, In affects of others. I any conclude that that repre- holds be to a separate two-year sentative would entitled judicata and res does not that the require be prejudice. action dismissed with C. J. Whitbeck, dissenting and part WHITBECK, (concurring C.J. part).
I. OVERVIEW the notice of conclusion that majority’s agree I with Dr. against the claims respect with intent was sufficient majority’s I with agree Lauer. also Michael Andrew deficient with of intent was the notice conclusion Center and Borgess Medical against the claims respect to Excellence, EC., comply for failure to Heart Center Hence, majority’s I with the agree 600.2912b. with claims dismissal of the the trial court’s decision to affirm Heart Center for Borgess Medical Center against Excellence, EC., prejudice. with *24 however, majority’s conclu- with agree,
I do not
to the latter
two
respect
with
sion that dismissal
without
I
should be
prejudice.
sepa-
write
defendants
v
that McLean
McElhaney1
was
I
rately because
believe
should
in this case
and that dismissal
correctly decided
be with
barring
thus
prejudice,
on
filing a new action
behalf
from
v
Verbrugghe
declare a conflict with
I would
estate.
2
Co, Inc
Hosp-Macomb
Specialty
Select
PREJUDICE?
II.
WITH OR WITHOUT
DISMISSAL:
A. OVERVIEW
of the factual
forth a statement
Boodt failed to set
and
Medical Center
against Borgess
the claims
basis for
them,
respect
Heart Center for Excellence. With
And,
because
therefore defective.
notice of intent was
383;
[2]
[1]
McLean
Verbrugghe
715 NW2d
v
McElhaney,
v Select
[72]
(2006).
Specialty
269 Mich
Hosp-Macomb
App
196;
dice. She 24, 2005, May on tive, Waltz, appointed Andrew who was 2006, wrongful of the 6, expiration October had until to file an action. saving three-year ceiling,5 statute death THE FOUR CATEGORIES B. FACTUALFRAMEWORK: are different which actually There four situations ability pursue personal representative’s a successor (1) has when a successor questioned: an action been file an action be- representative attempts personal never personal the predecessor representative cause (2) action;6 represen- a successor personal filed when attempts predecessor file an action when a tative so;7 to file an but was not authorized to do tried action (3) did when a not to file action but instead to attempt attempts a new 5 MCL 600.5852 states: person period If a of limitations has run or dies before days run, period an action
within 30
after the
of limitations has
repre-
may
survives
be commenced
which
law
any
person
years
2
after
sentative
deceased
time within
although
authority
period
letters of
issued
of limitations
are
brought
provision
has run. But an action shall not be
under this
years
3
unless the
commences it within
has run.
after
limitations
6
Detroit, Inc,
29;
Applications
v
658
Bio-Medical
(2003);
Falkenberg,
opinion per
unpublished
139
Rheinschmidt v
NW2d
(Docket
30,2006
261318),
Appeals,
curiam of the Court
issued March
No.
2006).
(Mich,
abeyance
application for leave held in
BUT AUTHORIZED; WAS NOT FILE ATTEMPTS TO ACTION REPRESENTATIVE the three category, although Turning to the second consistently holds unpublished, each relevant cases are at- predecessor personal that when the *27 to do action was not authorized to file an but tempted is so, personal representative an authorized successor saving saving period. her own This entitled his or her of his or upon commenced the issuance The cases is authority. letters of rationale these filing by representative an unauthorized all, an succes- filing to no authorized equivalent to an should be entitled representative sor to file action. opportunity (3) THE THIRD CATEGORY: ORIGINAL PERSONAL ACTION; FILES UNTIMELY SUCCESSOR REPRESENTATIVE ATTEMPTS TO REVIVE PERSONAL REPRESENTATIVE OR REINSTATE THE UNTIMELY ACTION per- allow a categories the first two successor While action, category file representative to an third sonal ability to a clear limitation on the successor’s presents category, an action on behalf of the estate. In this pursue Bolling. decision McMiddleton v published lead personal representative That case held that successor rely untimely or revive an action that was filed cannot on no his or her because there would be appointment before ratifying untimely an action under MCL benefit v St Joseph Mercy Hosp, 700.3701.11 Mullins also a conclusion, ex- same published opinion, reached the the mere of a successor plaining appointment previ- did not transform the [11] McMiddleton, supra at 671-674. BOODT V MED BORGESS CTR C. J. Whitbeck,
ously untimely filed action into a one.12 timely
(4) THE FOURTH CATEGORY: ORIGINAL PERSONAL FILES REPRESENTATIVE UNTIMELY SUCCESSOR ACTION; FILE PERSONAL REPRESENTATIVE ATTEMPTS TO NEW TO ACTION OVERCOME UNTIMELY ACTION Regarding the last which includes the category, situ- here, ation the case law is not as consistent. In this situation —in which successor attempts to file a new a predeces- action overcome filing of untimely sor’s is an apparent action —there published opinions: conflict between two McLean and Verbrugghe. The McLean held that a panel dismissal prejudice without was not warranted to allow a succes- sor personal representative to file a new action. McLean reasoned that the could file not an action of her his or own (although three-year ceiling had not yet expired) predecessor that the given negligently had file a timely failed to action. Addressing circumstances, same factual however, the did Verbrugghe panel apply not McLean. Rather, the Verbrugghe panel instead held that under *28 Eggleston plain 600.5852, the language MCL successor representative file could ac- new tion with the specific purpose overcoming a predeces- filing sor’s of an untimely action.
C. CASES RELEVANT TO THE PRESENT ACTION
(1) EGGLESTON In Eggleston, the appointed decedent’s widower was temporary personal representative, but he died several months later filed an having without action. The dece- dent’s son was appointed personal represen- successor
[12] Mullins, supra, Mich App at 591. Opinion Whitbeck, C.J. wrongful language the Interpreting plain
tative. held Michigan Supreme the Court saving statute, death had two the successor rather authority, his letters of after issuance of years personal representa- than the issuance of the deceased to file an action on behalf of authority, tive’s letters of the personal repre- the The fact that estate.13 requirements the time met MCL 600.5852 sentative Eggleston fact on which the Court dispositive was the However, timely filed. relied to hold the action was not, opinion as the lead con- Court did tends, en- hold that “every her receipt titled after of his or letters of years to two to file a authority complaint, irrespective within which Indeed, such a any .”14 the absence of predecessors of ruling on which the McLean was panel was basis recognize dispositive able factual distinction the facts on which it ruled and the facts between Eggleston.
(2) MCLEAN panel The McLean concluded that plaintiffs’ action filed untimely because was outside both and the saving period.15Appar of limitations ently anticipating disposition, plaintiffs this as alternatively serted “that trial court should have permitted voluntary plaintiffs’ dismissal of claims that a new prejudice without so could been .. .”16 appointed have file suit. Distin the facts at from guishing Eggleston, hand those that “neither the initial McLean noted nor 13 Eggleston, supra at 33. added). (emphasis Ante at 636 15 McLean, supra at 199-200.
16 Id. at 201. *29 BOODT V BORGESS MED CTR Opinion Whitbeck, C.J. representative [in Eggleston] represented the successor years estate the full two available to him under the “Contrarily, wrongful saving [the death statute.”17 plaintiffs years the were afforded full two McLean\ saving permitted wrongful the under death statute to complaint, file failed do The their but so.”18 McLean panel plaintiffs’ timely further noted that failure to negligence calculating file “their was due to own proper filing complaint” opposed time for to “the ,”19 untimely predecessor representative of a demise ... plaintiffs The McLean concluded that the were Eggleston”20 therefore “not relief entitled to under King Briggs, panel case, In a similar a of this Court personal representative’s concludedthat the action was untimely, having been filed both outside saving period.21 King panel limitations and the then went on to address “whether representative of the estate would have an additional years authority two from the date of his letters of to file answering suit under MCL In 600.5852... .”22 this question, King panel distinguished the facts at hand Eggleston, specifically noting from those of “in Eggleston, temporary never predecessor personal suit, filed while King panel Thus, the instant case did.”23 stated really personal represen- issue was “whether diligently pursue malpractice tative who fails cause 17 Id. at 202.
18 Id.
19 Id.
20 Id. 21 King, supra, slip op Although binding, 7.215(C)(1), at 2. not MCR I decidedly persuasive. view this case as 22 King, supra, op slip at 2. 23 Id. MICH 621 Opinion Whitbeck, C.J. *30 the allotted time an estate action on behalf of within
of from the action dismissal may nonetheless save The representative.”24 another substituting personal dispositive. MCL 700.3613 King panel then found personal representa- a successor 700.3613 “states that in all actions and proceedings tive substituted ‘must be awas representative personal which the former ”25 per- held the successor King panel The party.’ in the action would be substituted representative sonal two already filed and not have the additional would saving pur- death statute to years wrongful under the Thus, King, under the rationale sue action.26 the same representative successor inherits personal untimely previous personal representa- status as the tive.
(3) VERBRUGGHE again In of this Court addressed Verbrugghe, panel file a ability personal representative’s successor untimely filing. after a predecessor’s new action that the significant found Verbrugghe solely plain language Court relied on the stat- Verbrugghe panel that, ute.27 The concluded under statute, wrongful language saving death plain only there are two limitations on a successor representative’s ability saving provision: to exercise the the limitations during death of decedent receiving authority.28 and the successor’s letters Therefore, Verbrugghe to the once according panel,
24 Id. 25 Id. 26 Id.
27 Verbrugghe, supra at 389. 28 Id. at 389-390. Borgess Boodt v Med Ctr C. J. Whitbeck, issued, of authority letters are the successor only need comply saving- with time statute limits.29
The Verbrugghe panel acknowledged that holding its gave the “a second apple. bite of the But. . . the predicament lies within .. . that, statute .”30The Verbrugghe panel stated if necessary, Legislature body would be the proper correct this result.31
D. SUCCESSOR PERSONAL REPRESENTATIVE ATTEMPTS TO FILE NEW ACTION TO OVERCOME PREDECESSOR’S UNTIMELY ACTION: McLEAN VERSUS VERBRUGGHE *31 I emphasize first that McLean a published opinion that was released in Thus, 2005. subsequent panels, like Verbrugghe, were bound to follow ruling,32 its absent some distinguishing factor. In presumed recog- rule, of nition this panel the Verbrugghe attempted to distinguish believe, however, McLean. I that the Ver- brugghe panel’s to do so attempt was without merit.
The Verbrugghe panel “[U]nlike stated: McLean v ... McElhaney, we do not the believe facts in this case allow us to avoid the applying plain of language this Thus, statute as enforced in Eggleston. because McLean did not apply we find Eggleston, provides that McLean guidance.”33 us no useful The Verbrugghe panel, like here, majority apparently concluded that McLean was not binding because it failed to follow the Supreme precedent Court of Eggleston.
[29] Id. at 391.
[30] Id.
[31] Id. at 391-392. [33] at 389. Verbrugghe, supra MCR 7.215(J). Opinion Whitbeck, C.J. to follow
However, not bound panel McLean to the facts inapplicable that it considered a rule recognized is, McLean hand. That of scope the broad cases did not cover rule Eggleston per- majority apply “every would have which — any predeces- , irrespective ... sonal of a in the context rule came Eggleston The sors.”34 not, could that did and of circumstances set particular like not, the relevant facts cases contemplate was distin- McLean, here. King, and case case the initial because guishable and, action because had not filed an failed to death, having could not be described as his Further, Eggleston of action. diligently pursue the cause MCL 700.3613: the ramifications of did not address never that the deceased given died, action prior filed action he there was no before represen- in which substitute the successor tative. that there may have concluded Verbrugghe panel distinction between the facts
was some relevant factual I to compre- But fail of that case and those McLean. In McLean might that distinction be. both hend what un- actions were predecessors’ Verbrugghe, were filed outside both timely they because cases, In saving period. and the both limitations through to file a new use of sought estate action *32 cases, personal representative. In both successor argue that the Eggleston on succes- plaintiffs relied file able to a new personal representative should be sor cases, saving or her And in both period. action under his pertinent issue was recognized panels aof new action. filing allowed the whether 11(B) part opinion. Ante at 636. See the discussion of this BOODT V BORGESS MED CTR Opinion by Whitbeck, C.J. only distinguishing that I factor can discern is the fact that the Verbrugghe appeal brought was successor representative who had filed a new contrast, action. In appeal brought by the McLean original personal representatives, who argued that a successor should be allowed to file new action. Even if factor, this indeed distinguishing is a relevant I conclude that panel unquestionably this is bound to because, follow here, McLean yet representative has to file a new In my action. however, opinion, there is no actual relevant factor distinguishing the facts of this case McLean or Verbrugghe. again, Once I conclude that under the facts here, panel this is bound to follow McLean. put,
Simply was faced with Verbrugghe panel same relevant facts as the McLean panel. Yet the Verbrugghe panel disagreed with the panel’s McLean reading of my view, In Eggleston. this was not the correct procedure; either the rules regarding precedent and the something conflict mean they rules or do not. In my view, the Verbrugghe panel should have declared a McLean, conflict with rather ignoring than McLean’s binding precedence.
The majority here concedes that binding McLean is because, rules, under our court a panel “[w]hen is confronted with two conflicting opinions published af- 1, 1990, ter November obligated to follow opinion Thus, the first issued.”35 because McLean and are Verbrugghe conflicting, and McLean was issued first, the panel obligated here is to follow McLean.
Further, not
only
binding
McLean
under the court
rule, I believe that McLean did in fact reach the correct
holding. The Verbrugghe panel
resolved the issue
Harvey,
466, 473;
Auto-Owners
Co v
Ins
662
Opinion Whitbeck, C.J.
wrongful
death
language
of
plain
interpreting
I
that
contrast,
reading
believe
By
alone.
saving statute
the result
compels
MCL
together with
700.3613
statute
of
saving provision
“The
King.
in McLean and
reached
are
and the Probate Code
of limitations
the statute
that
legal actions
together
preserve
intended to work
of
of the statute
running
and to define the
survive death
thirty
or within
person
a
dies before
limitations where
limitation.”36
running of the
of
days
period
of the
of
application
Verbrugghe panel
The
considered
700.3613,
The
provision.
that
MCL
but dismissed
impli-
“has procedural
MCL 700.3613
stated
while
representative,
personal
cations for the successor
initiating
separate
not.
.
her from
a
preclude
does
.
true,
technically
under MCL
Although
action.”37
this is
must
700.3613,
the successor
into
And
predecessor’s
inherit
status.
substitution
Additionally, despite
futile.
untimely
an
action would be
700.3613,
attempt here to discount
majority’s
approach
in
the McLean
best harmonizes
my opinion,
statutory provisions.38
E.
OF THE PRESENT ACTION
RESOLUTION
mentioned,
the last
As
this action falls under
of
categories
four different
in which a successor
representative’s ability
pursue
ques-
action is
at-
tion: when a successor
predecessor’s
to file a new action to
tempts
overcome
untimely
of an
limitations
filing
action.
(1997).
Lindsey Harper Hosp,
56, 65;
III. STATUTORY REVISIONS I believe that this case provides yet example another of “the continuing difficulties presented by recent de- in velopments medical malpractice Judge As law.”40 City Braverman v aptly stated in Hosp, Garden NEFF “Given the intricacies of the statutory scheme and the nuances of interpreting decisions, cases those this area of medical malpractice fraught law is with peril for even the most Thus, careful I echo her call for practitioner.”41 “the to Legislature consider statutory revisions to the scheme provide that would litigants and the courts with guidance carry clear to out the in Legislature’s intent this area of law.”42
IV CONCLUSION
In sum,
wrongful
in a
malpractice action,
death
generally
entitled
a saving
to
period
This saving
operates to
suspend
period.43
39
700.3613; McLean,
supra
King, supra; Young,
201-203;
supra.
City Hosp,
v Garden
Braverman
App 72, 88;
272 Mich.
42 Id.
43 MCL 600.5852. Opinion Whitbeck, C.J. until of limitations of the
running In the estate.44 represent is authorized made clear Court Michigan Supreme Eggleston, to successor applied could be saving provision that I do not However, agree personal representatives. here majority far as the ruling extends as it extend. In would have Verbrugghe panel and the Egg- or the short, agree Legislature I do not give every intended to leston Court the Michi- apple. at the As a second bite made clear: “Statutes gan Court has also Supreme stale claims. protect defendants from limitation serve purpose purpose This must be balanced with limitation, saving such as the exceptions to statutes of plaintiffs saving provision preserves provision. The limitation, claim, but, as to a statute of exception Thus, my narrowly opinion, must be construed.”45 earlier outlined serves recognition categories four narrowly and saving provision best to both construe with the Probate Code. provision harmonize that *35 if predecessor I conclude that Accordingly, would untimely files an action on estate, behalf of the a successor time-barred of the former steps into shoes claim. bringing from a stale supra Lindsey, at 61. 45 Id. at 69.