*1 Hоspital PALMERTREE v GENESEE MEMORIAL HOSPITAL Docket No. 47963. Submitted June at Detroit. Decided 6, 1981. appeal applied Leave to for. Palmertree, Fannie L. as administratrix of the Estate of Law- Palmertree, deceased, brought against rence E. an action Gene- plaintiffs see Memorial decedent’s death grounded malpractice. on defendant’s medical Defendant moved summary judgment. for accelerated and for Genesee Circuit Court, Ransom, J., Robert M. denied defendant’s motion for summary judgment but defendant’s motion for acceler- part. appeals, alleging ated that the trial pаrtially granting court erred in defendant’s motion for acceler- grounds ated allega- on the that certain of running statutory tions were barred of the limitation of actions. Held: partially granting The trial court erred in defendant’s motion judgment. for accelerated wrong- Plaintiffs cause of action for upon plaintiffs decedent, ful death accrued regard- the death of less when the сause of action for medical accrued. properly brought Her action was within the for limita- tion of actions for death. Reversed and remanded. J.,
J.V. dissented. He would hold that a [7] [6] [1] [2] [5] [3] [4] Applicability, Statute of 22 Am Jur 22 Am Jur 22 Am Jur 22 Am Jur 22 Am Jur 61 Am Jur physician, surgeon, dentist, physicians, surgeons, or the like. 89 ALR2d 1180. limitations §320. §316. Am Jur 2d limitations 2d, 2d, 2d, 2d, 2d, References applicable malpractice 2d Death Death 40.§ Death Death Death negligence (Rev), (Rev), Physicians, §§ §§ §§ §§ applicable Physicians, Surgeons, 121, 123, 124, 126, 135, 211, for Points in Headnotes 5. 48. action or similar against Surgeons, and related actions practitioner. hospital, and Other Healers and Other Healers action 267. of statute of 80 ALR2d against against alleged wrong on medical where date of months discovers treatment or six after last the existence his whichever is have discovered should *2 having Thus, plaintiffs complaint untimely, not later. since actions, he of of been filed within limitation affirm.
Opinion of Court Wrongful — — Statutes. 1. Death Actions wrongful to statute is a remedial act intended The death type injuries compensation real of a are but whose 27A.2922). (MCL600.2922; at law MSA not actionable common Injured — Wrongful — — 2. Actions Death Parties Statutes. compensation injuries arising for out of Persons entitled law, who, wrongful of class would be entitled death are personal property of he the deceased had died to inherit (MCL600.2922[2]; 27A,2922[2]). MSA intestate Damages — — Wrongful — Death Statutes. Actions wrongful Damages in for death include an аction loss recoverable (MCL companionship society of deceased 600.2922[2]; 27A.2922[2]). MSA Compensation — Wrongful — 4. Actions Death Distribution Damages — Statutes. for damages arising out of a The amount recovered for surviving spouse to the and next of death shall be distributed (MCL 600.2922[2]; proportion thereto kin who suffered 27A.2922[2]). MSA Wrongful — — — Causes of Action 5. Actions Death Accrual Malpractice. Medical gеnerally death does not accrue A cause of action for occurs, including an action which is death such grounded malpractice regardless of the mal- when on practicе cause of action accrues. Malpractice — — of Ac- Medical Accrual of Causes Actions — Statutes. tion resulting malpractice not accrues An action for medicаl death plaintiff ceases at the treatment discontinued or a time capac- professional pseudoprofessional in a or otherwise served ity claim for as to matters оf which the out op Opinion the Court regardless or time the discovers otherwise of the arises 27A.5838). (MCL 600.5838; knowledge the claim has V. J. Dissent Malprac- op Wrongful — —Death Medical Actions 7. Limitation — Statutes. tice alleged wrong where the A two after a of last treatment or within six months date discovered existence of a discovers should have (MCL 600.5805[3], later 27A.5838). 27A.5805[3], L. & P.C. Alvin Levine Levine Benjamin, (by Harris), Linda K. plaintiff. for Leаder, Wilson, & P.C. (by Basso Rob- Portnoy, Roth), P. ert defendant. *3 P.J., J. H. and and Before: V. Gillis, Brennan
A. C. JJ. Miller,* 12, a appeals July J. H. P.J. Plaintiff Gillis, 1979, Circuit Court County order the Genesee to the granted partial which accelerated defendant. defen- begаn
Plaintiff’s decedent treatment at on under the care hospital dant October M.D., Markunas, a staff That physician. of Paul 28, treatment continued The at a differ- sought decedent thereafter trеatment 1976, 5, hospital. decedent was ent On March the cancerous diagnosed having long-standing as a He condition. died on December filed her on (1) 1978, alleging properly failed to that defendant: provided supervise care and treatment (2) Markunas, to utilize by decedent Dr. failed * Appeals by assignment. judge, sitting the Court of Circuit . Opinion op the Court (3) diagnostic proper techniques, negligent was in the selection and retention of Dr. Markunas as a staff physician.
On November defendant for moved accelerated and summary judgment, arguing re- spectively that this is a medical aсtion limitations, barred a statute two-year 27A.5805(3), and that govern- mental immunity barred suit. The motion for summary judgment was denied. That denial has not appealed. been
The motion part. The court lower reasoned fol- as
lows:
(1) action; This is wrongful a (2) Plaintiff’s first and allege sеcond malpractice; (3) A statute of two-year applies limitations wrongful death action where alleged wrong malpractice;
(4) A medical action must be filed of the date of thе injured per- son’s last treatment within six months after that person discovers or should have discovered later, existence 27A.5838;
(5) Plaintiff’s was not filed within either periods; of these
(6) (2) Allegations were barred running of the limitations; statute of allegation Plaintiff’s third alleges general *4 Thus, negligence. a of three-year statute limita- tions applicable. 600.5805(7); 27A.5805(7). That period had run as of the not date on which her Plаin- complaint. filed allegation tiff’s third was not barred the run- ning of applicable the statute of limitations. 687 Opinion of the Court
Accelerated allega- as to (1) (2) (3). tions denied as to allegatiоn appeals the of (2). as to and We reverse. begin
We
our analysis
that
by emphasizing
is a
death cause of
and that "the
wrongful death
statute
a remedial
intended
act
to
compensаtion
persons
injuries
whose
real but
type
are
of a
not actionable
at common
Hubbard,
Crystal
v
law”.
92
243;
Mich App
(1980).
gtd
lv
(1979),
anagh, J., concurring Were other- separately). representative the decedent wise, personal have to brought) the suit must be whom (by the suit in cases prescient, or would be barred period where the limitation runs before death occurs. plaintiffs
Given the fact that decedent died and that December need nоt reach the September filed on we applies. of limitations As issue of which statute one of the date brought year suit was death, it matters not whether we the two- apply statute2 or the yeаr three-year other actions to recover for injuries statute for all property.3 Accordingly, were not barred running of the statute of limitations. The was errone- partial and is reversed. ous proceedings
Reversed and remanded for consis- opinion. tent with this Miller, J.,
A. C. concurred. (dissenting). Brennan, V. J. J. I respectfully A where the al- dissent. leged wrong brought of the date of years person
last trеatment or within six months after a discovers or should have the existence discovered 600.5805(3); of his is later. MCL 27A.5805(3), MSA MCL MSA 27A.5838. 27A.5805(3). 1978, September 600.5805(3); In statutory In the correct citation was MCL 27A.5805(7). 600.5805(7); MSA Effective December this section is 3 wаs amended to of limitations "[t]he injury recover after the time of the death or damages for all other actions to person, for the death of a or for to a 27A.5805(8). property”. (Emphasis suрplied.) V. J. Dissent Bigman, App 487,
In Weiss v
492-493;
Mich
(1978),
(1979),
instant we conclude that the contained solely therein were allege 'drafted with the intent * * * Therefore, malpractice’. malpractice the medical limitations, stаtute 27A.5805(3), applicable. This statute of limitations treatment, begins to run from date of last or from the date when the asserted should (Citation discovered, have been is later.” omitted.) case, In the instаnt applicable. 27A.5838, allegations amended, as Plaintiffs of medical are barred un- less the action was two after the date of "last treatment” or within six months after "discovery”, whichever was later. The "last treat- January "discovery” ment” was March was Hence, was the latest date on which menced the action. could have com- Plaintiffs un- timely as it was not filed partial I would affirm the trial court’s judgment.