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Chernoff v. Sinai Hospital of Greater Detroit3/22/2002
UNPUBLISHED
Defendants Sinai Hospital of Greater Detroit and The Detroit Medical Center (defendants) appeal by leave granted the order denying their motion for summary disposition brought pursuant to MCR 2.116(C)(5) and (7) in this wrongful death medical malpractice action. Defendants contend that they were entitled to summary disposition because plaintiff did not have the legal capacity to bring suit because the letter of authority appointing her as personal representative had expired before she filed the notice of intent and the complaint.
The decedent died on September 29, 1995, while she was a patient at Sinai Hospital. Plaintiff was appointed personal representative of the decedent's estate on April 23, 1997. The letter of authority appointing plaintiff as personal representative expired on June 18, 1998, and plaintiff was discharged as personal representative on September 22, 1998.
On April 16, 1999, plaintiff filed a notice of intent to sue and thereafter filed a complaint on September 17, 1999. The filing would have been within the statutory period, which defendants contend expired on September 24, 1999, provided plaintiff had remained the personal representative. Defendants moved for summary disposition on February 9, 2000, asserting that plaintiff's authority as personal representative had expired before she filed the notice of intent and the complaint and thus she had no authority to file suit.
On February 24, 2000, plaintiff filed a petition to reinstate letters of authority nunc pro tunc, which the probate court granted on March 15, 2000. On May 31, 2000, the Wayne Circuit Court denied defendants' motion for summary disposition. The circuit court relied on the relation-back doctrine to hold that the probate court's order related back to the date of the filing of the complaint, avoiding the bar of the statute of limitations. We agree and affirm.
Pursuant to MCL 600.2922(2), a wrongful death action must be brought by and in the name of the personal representative. Smith v Henry Ford Hosp, 219 Mich App 555, 557-558; 557 NW2d 154 (1996). The pivotal issue presented is whether a plaintiff can have reasonable belief in his or her authority to file suit as a personal representative when the estate is closed and the letters of authority have expired. Defendant relies primarily on Fisher v Volkswagenwerk Atkiengesellschaft, 115 Mich App 781; 321 NW2d 814 (1982). The Fisher plaintiffs brought a wrongful death suit as personal representatives of the decedents, their parents, after the estates had been closed and their authority as personal representatives had expired. The defendants moved for summary disposition, arguing that the plaintiffs lacked the capacity to sue. The probate court then reopened the estates and reestablished the plaintiffs as personal representatives. The trial court permitted the order to relate back. Id. at 783.
This Court acknowledged in Fisher that where a validly appointed personal representative institutes a wrongful death action under the mistaken belief that she has the authority, yet later discovers her error and procures the proper authorization by probate order after the statute of limitations expires, the probate order will relate back to the complaint such that the action is timely. Id. at 785-786. However, based on the Court's finding that the plaintiffs "clearly knew that their tenure as coadministrators ended when the estates were closed," the Court held that the plaintiffs had misrepresented their capacity to sue under the wrongful death act when they filed suit and therefore the subsequent reopening of the decedent's estate after the limitations period had expired did not relate back to the fi
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