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Williams v. Spohn12/12/2000
UNPUBLISHED
Plaintiff appeals as of right, challenging the trial court's orders granting defendants' motions for summary disposition on the basis that the statute of limitations had expired at the time plaintiff filed her third complaint in this wrongful death/medical malpractice action. We affirm.
In May 1992, decedent, Vera Bullock, discovered a lump in her right breast. She sought treatment from defendant Jageswar Saha, D.O., who referred her to defendant Earle Spohn, D.O., for a surgical consultation. On advice of Dr. Spohn, Bullock was hospitalized at defendant Detroit Osteopathic Hospital (DOH) for a mammogram and biopsy. Following these procedures, both Drs. Saha and Spohn told Bullock that no malignancy had been found.
Bullock's condition continued to worsen. She apparently saw both Drs. Saha and Spohn several times thereafter, each time being reassured that she did not have cancer. On March 29, 1993, Bullock went to Saratoga Hospital's emergency room. A biopsy performed at Saratoga reveled the presence of cancer. Bullock then underwent a radical mastectomy on her right breast. On March 29, 1994, cancer was discovered in Bullock's left breast. She died the next day. Plaintiff alleges that decedent died of "possible brain and bone metastasis, carcinoma spread to lymph nodes and advanced carcinoma of the right breast."
According to plaintiff, she was issued letters of authority appointing her the personal representative of the decedent's estate on June 24, 1994. Plaintiff filed her first complaint against defendants on August 12, 1994, alleging that the decedent died as a result of a failure to diagnose the decedent's breast cancer. Plaintiff's claim was brought under the wrongful death statute, MCL 600.2922; MSA 27A.2922. Plaintiff asserts that this complaint was not preceded by a notice of intent to file a claim, and the action was dismissed without prejudice for this reason on November 2, 1994.
On July 10, 1995, plaintiff served a notice of intent on defendants. She filed a second complaint against defendants on April 23, 1996. Her original affidavit of merit was later found defective, so she filed an amended affidavit of merit on July 16, 1996.
On December 4, 1996, the trial court issued an order dismissing defendants Saha and DOH. That order dismissed the claims against these defendants without prejudice, directing plaintiff to refile her complaint with an affidavit of merit complying with MCL 600.2912d; MSA 27A.2912(4). The order also provided: "For purposes of refiling, the Complaint previously filed herein shall satisfy the required statutory notice." Plaintiff's counsel submitted an affidavit representing that the parties agreed to this provision, intending that the notice period would begin to run with the entry of the order dismissing DOH and Saha. On March 12, 1997, the trial court entered an order dismissing plaintiff's second complaint against Spohn.
Plaintiff filed this complaint on September 9, 1997. Defendants moved for summary disposition, arguing that the complaint was barred by the applicable limitations period. The trial court agreed and entered orders dismissing the defendants.
Plaintiff argues that the trial court erred in granting defendants' motions for summary disposition. She asserts that the trial court erred in interpreting the December 4, 1996 stipulated order as indicating an intent that the notice period would be considered to have commenced on April 23, 1996, the date on which the second complaint was filed. We affirm the trial court's decision, albeit for reasons different than those advanced by plaintiff. See Hall v McRea Corp, 238 Mich App 361, 369; 605 NW2d 354 (1999
Page 1 2 3 Michigan Personal Injury Attorneys
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