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Halton v. Fawcett12/9/2003
FOR PUBLICATION
We granted leave in this case to consider the question whether a person must have been formally appointed the personal representative of the decedent's estate in a wrongful death action based upon a claim of medical malpractice before filing the notice of intent to sue. We hold that, because no such requirement is imposed by statute, a notice of intent may be filed by the person who is eventually appointed the personal representative even before their appointment, and, therefore, we affirm.
In this case, plaintiff's decedent died from cancer of the gall bladder on February 10, 2001. On March 7, 2001, the statutory notice of intent to file a medical malpractice action was given to both defendants. Plaintiff was appointed personal representative of the decedent's estate on April 12, 2001. The instant action was filed on September 28, 2001. For purposes of this appeal, it is assumed that, if the notice of intent is defective, the period of limitations would have run before the lawsuit was filed; on the other hand, if the notice of intent is sufficient, the period of limitations would be tolled and the filing of the lawsuit was timely.
At issue here is the following provision of MCL 600.2912b(1):
Except as otherwise provided in this section, a person shall not commence an action alleging medical malpractice against a health professional or health facility unless the person has given the health professional or health facility written notice under this section not less than 182 days before the action is commenced.
In essence, defendants argue that the statute requires that the person who gives notice of intent to bring the malpractice action be the same person who actually brings the action. Further, defendants argue, plaintiff gave notice in her individual capacity and thereafter brought suit in her capacity as personal representative of the estate. Defendants argue that plaintiff the individual is a different person than plaintiff the personal representative and, therefore, a notice of intent by plaintiff the individual does not satisfy the requirement that the same person file the notice as who brings suit where suit was brought by plaintiff the personal representative. Plaintiff responds that the requirement that the notice be given by the same person who brings the suit is satisfied if it is the same human being who gives notice and plaintiff the individual and plaintiff the personal representative are the same human being and, therefore, the statute was complied with. We agree with plaintiff, as did the trial court.
With the use of the definite article "the" with the second occurrence of the word "person" in MCL 600.2912b(1), it is clear that the statute requires that the person commencing a medical malpractice action be the person who previously served a notice of intent on the defendant. The question becomes, then, whether the individual who becomes personal representative of an estate is a different "person" in his individual capacity than he is in his representative capacity. Because the relevant fact, that plaintiff's appointment as personal representative came after the notice of intent was served on defendants, is undisputed, the question whether the period of limitations had run in this case presents a question of statutory interpretation, which we review de novo.
As the Supreme Court said in Roberts v Mecosta Co General Hosp, unambiguous statutes are to be interpreted as written:
An anchoring rule of jurisprudence, and the foremost rule of statutory construction, is that courts are to effect the intent of the Legislature. People v Wager , 460 Mich 118, 123, n7; 594 NW2d 487 (1999). To
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