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Miller v. Mercy Memorial Hospital Corp.6/4/2002
This case presents the issue whether the six-month discovery provision in MCL 600.5838a(2), applicable to medical malpractice claims, is incorporated in the wrongful death saving statute as a "period of limitation." MCL 600.5852. Plaintiff filed a wrongful death action on the basis of medical malpractice, alleging in part that defendants failed to timely diagnose cancer, which resulted in the death of plaintiff's decedent. The trial court dismissed the complaint on statute of limitations grounds, pursuant to MCR 2.116(C)(7). The Court of Appeals affirmed, relying on Poffenbarger v Kaplan, 224 Mich App 1; 568 NW2d 131 (1997), and held that the six-month discovery rule for medical malpractice actions was not incorporated by the wrongful death saving statute. We reverse the judgments of the trial court and Court of Appeals and overrule Poffenbarger to the extent that it held that MCL 600.5852 does not incorporate the six- month discovery rule.
I.
We borrow the Court of Appeals statement of facts:
Decedent went to see his internist, Dr. Attary, in 1993 because he had a chronic cough and had been spitting up blood (hemoptysis). Dr. Attary referred decedent to Dr. Boonsiri, who performed a bronchoscopy on decedent's right lung on August 23, 1993. The biopsy results from the procedure were interpreted as showing no malignancy. Decedent then underwent a CAT scan on August 27, 1993. Plaintiff alleged that Dr. Flores misinterpreted the CAT scan, failing to identify a suspicious mass in decedent's upper hemithorax.
Plaintiff alleged that decedent's cough and hemoptysis continued after August 1993. Another CAT scan was performed at Mercy Memorial Hospital in December 1995. This scan revealed the presence of a mass in decedent's right lung that was noted to be suspicious for carcinoma. A needle biopsy of the lung was performed in January 1996 at St. Vincent's Hospital, and decedent was diagnosed with lung cancer on January 10, 1996. Decedent died on January 24, 1996. Plaintiff was appointed personal representative and letters of authority were issued on February 22, 1996. Plaintiff filed his wrongful death claim on October 23, 1997.
The trial court granted summary disposition in favor of defendants Flores and Boonsiri under MCR 2.116(C)(7). The trial court subsequently granted summary disposition in favor of Mercy Memorial Hospital because plaintiff alleged it was vicariously liable for the acts and omissions of Flores and Boonsiri. Plaintiff appealed as of right, and the Court of Appeals affirmed. Plaintiff has applied for leave to appeal.
II.
The Legislature has prescribed the periods of limitation for medical malpractice actions. The general period of limitation for a malpractice action is two years. MCL 600.5805(5). There are additional provisions specifically relating to medical malpractice actions. The pertinent provisions are in a portion of MCL 600.5838a(2):
Except as otherwise provided in this subsection, an action involving a claim based on medical malpractice may be commenced at any time within the applicable period prescribed in section 5805 or sections 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. . . . and MCL 600.5852:
If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run.
But an action shall not be brought und
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