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Vandenberg v. Vandenberg11/1/2002
FOR PUBLICATION
This case is before this Court following our reversal and remand in VandenBerg v VandenBerg, 231 Mich App 497, 503; 586 NW2d 570 (1998) ("VandenBerg I"). Plaintiff appeals as of right from the trial court's order granting summary disposition in favor of defendants under MCR 2.116(C)(7), on the ground that plaintiff's medical malpractice claim was barred by the statute of limitations. We affirm.
Plaintiff argues that the trial court improperly dismissed her malpractice claim because (1) the doctrines of res judicata and law of the case prevented the trial court from considering a statute of limitations defense, and (2) defendants effectively abandoned a statute of limitations defense by not raising the issue in a cross-appeal in VandenBerg I. We disagree. Summary disposition of all or part of a claim or defense may be granted when a claim is barred because it was filed outside the period set forth in the applicable statute of limitations. MCR 2.116(C)(7). An order granting summary disposition under MCR 2.116(C)(7) on the basis that the statute of limitations has expired is reviewed de novo on appeal, giving consideration to affidavits, depositions, admissions, and other documentary evidence filed by the parties, to determine whether they indicate that the claim is barred. See Smith v YMCA of Benton Harbor/St Joseph, 216 Mich App 552, 554; 550 NW2d 262 (1996).
A statute of limitations defense must be raised in a party's first responsive pleading or by motion filed not later than this responsive pleading. MCR 2.111(F)(2) and (3); see also Phinney v Perlmutter, 222 Mich App 513, 544; 564 NW2d 532 (1997). Here, in response to plaintiff's complaint, defendants filed answers in which they asserted " hat the claims set forth in [plaintiff's] complaint did not accrue within the applicable limitations period (under MCLA 600.5805 and 600.5838) before commencement of said action and therefore barred by the Statute of Limitations."
Generally, a plaintiff in a medical malpractice case must bring a claim within two years of the act or omission that forms the basis of the claim, or within six months after the plaintiff discovers or reasonably should have discovered that the plaintiff has a claim, whichever is later. MCL 600.5805(5), 600.5838a(2). However, in a case where there is a death, as here, the decedent's personal representative has two years from the date the letter of authority is issued in which to commence the suit. MCL 600.5852. The action must, however, be commenced by the personal representative within three years after the period of limitations has run. Id.
In this case, the claim against defendants accrued on October 11, 1990, the last day of treatment and the day decedent died. Thus, pursuant to MCL 600.5805(5), the statute of limitations was set to expire two years later, on October 11, 1992. Plaintiff, however, was not appointed personal representative of decedent's estate until September 28, 1995. Accordingly, the period of limitation was extended to October 11, 1995, three years after the original period had expired. MCL 600.5852. However, although plaintiff's complaint was filed within this period, on September 29, 1995, the affidavit of merit was not filed until mid-December 1995. Under Scarsella v Pollak, 232 Mich App 61; 591 NW2d 257 (1998), aff'd 461 Mich 547; 607 NW2d 711 (2000), this was insufficient to timely commence the suit.
In Scarsella, this Court recognized that, " enerally, a civil action is commenced and the period of limitation is tolled when a complaint is filed," but that "medical malpractice plaintiffs must file more than a complaint; 'they shall file with the complaint an affidavit of merit . .
Page 1 2 Michigan Personal Injury Attorneys
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