Did rep. of dead patient's estate bring suit in time?

CASE ON POINT: Amon v. Botsford Gen. Hosp., No. 260252 (Mich. App. 12/27/2005) N.W.2d--MI

ISSUE: There is often a difference in the time limits for filing suit for medical malpractice and the time limits for filing suit for wrongful death under the statutes of limitations throughout the states. In this unusual Michigan case, a patient complained that she suffered from complications resulting from the malpractice of health care providers during her hospitalization preceding her death. Subsequently, a successor plaintiff was involved (in place of the patient) after she had become the duly appointed representative of the deceased patient's estate.

CASE FACTS: Ann Marie Samodell suffered from complications during her hospitalization at Botsford General Hospital from February 1, 2000, through the date of her death on February 6, 2000. On June 21, 2000, Jo Ellen Prior was issued letters of authority and appointed the personal representative of the decedent's estate. On February 5, 2002, Prior served a notice of intent to file a claim pursuant Michigan Law. On December 12, 2002, Prior filed suit against the hospital and Dr. Robert Schirmer. On May 13, 2004, the defendants brought a motion for summary disposition contending that the claims rased in the case were barred by the applicable statute of limitations. The defendants argued that Michigan's two-year limitations period for bringing suit for medical malpractice cases had run before the plaintiff filed suit until December 12, 2004. Further, the defendants argued that the statute of limitations was not extended by the wrongful death exception to the statute. After the defendants filed their motion for summary disposition, the plaintiff was appointed as the successor personal representative of the decedent's estate on June 23, 2004. The trial court denied the defendants' motion for summary disposition, and held that the plaintiff would be within the statute if she filed a new complaint, and that complaint was "pled before February 6, 2005. The primary issue before the court in this case was whether the wrongful death action was time barred, and determination of that issue involved the consideration of interplay between the notice tolling provision and the wrongful death saving provision. The defendants argued that in all actions brought under the wrongful death statute, the limitations period will be governed by the provision applicable to the liability theory of the underlying wrongful act. Accordingly, the defendants argued that the court was required to apply the two-year medical malpractice statute of limitations. The original complaint filed in the case was untimely in accordance with the Michigan statute of limitations for bringing suit in medical malpractice cases.

COURT'S OPINION: The Court of Appeals of Michigan reversed the judgment of the trial court and held that the trial court had erred in granting the defendants' motion for summary disposition. The court remanded the case back to the trial court.

LEGAL COMMENTARY: The court reviews motions for summary disposition de novo. Summary disposition is proper when a claim is barred by the statute of limitations. Questions as to whether a statute of limitations bars a claim and questions of statutory interpretation are also reviewed de novo. The plaintiff argued on cross-appeal that the court recognized that the Supreme Court of Michigan had directed that courts give recognition to the holding of the Supreme Court of Michigan in the case of Waltz v. Wyse, 469 Mich. 642,647; 677 N.W.2d 813 (2004). The Waltz case directed all Michigan courts to give the holding in that case retroactive application. Accordingly, the court held that it was bound to follow the decision of the Michigan Supreme Court. It is the Supreme Court's obligation to overrule or modify case law if it becomes obsolete. Until the court takes such action the Court of Appeals and all lower courts are bound by that authority. Accordingly, the court concluded that it was bound to give Waltz retroactive application. Editor's Note: The defendant, Dr Robert Schrimer, was dismissed and was not a party to the appeal in the case. Parties to suits, both plaintiffs and defendants, can often overlook the necessity for filing suit before the applicable period of time set forth in a state's statute of limitations has expired. Defendants should be quick to recognize that suit has been fled after a statute of limitations has run. However, more importantly, they must plead the statute of limitations as an affirmative defense. Failure to do so may put a defendant in the posture of having had a bona fide defense but being unable to invoke it because of failure to plead the statute of limitations as an affirmative defense. Conversely, plaintiffs, no matter how meritorious their cases might be, can be put in a posture wherein they cannot prevail because they failed to file suit within the time permitted by law. A defense which is not often employed is the defense of Laches, in which no matter how meritorious a plaintiff's claim might be, he might not be able to prevail because of failure to seek legal redress for injury to his person, property or any of a number of rights which may be violated by virtue of his failure to seek redress within a reasonable time. That time may, in many cases, be determined by the facts and circumstances of the particular case.

Meet the Editor & Publisher: A. David Tammelleo, JD, is a nationally recognized authority on health care law. Practicing law for over 40 years, he concentrates in health care law with the Rhode Island firm of A. David Tammelleo & Associates. He has presented seminars on medical, nursing and hospital law throughout the United States. In addition to his writings as Editor of Medical Law's, Nursing Law's & Hospital Law's Regan Reports. his legal articles have been published in the most prestigious health law journals. A prolific writer, his thousands of articles, as well as his achievements as an attorney and lecturer, have won him recognition in Martindale-Hubbell's Bar Register of Preeminent Lawyers, Marquis Who's Who in American Law, Who's Who in America and Who's Who in the World.