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Ashby v. Byrnes6/4/2002
FOR PUBLICATION
In this action alleging medical malpractice, plaintiffs appeal as of right from the trial court's order granting summary disposition in favor of defendants Paul M. Byrnes, M.D., and Paul M. Byrnes, M.D., P.C. The trial court granted summary disposition pursuant to MCR 2.116(C)(7) and (C)(10), after concluding that plaintiffs filed their claim beyond the time allowed by the applicable statute of limitations. We affirm.
I. Basic Facts and Procedural History
On October 26, 1995, plaintiff Kimberly Ashby was admitted to Emma L. Bixby Medical Center where she underwent a hysterectomy performed Dr. Byrnes. According to plaintiffs, Dr. Byrnes negligently performed the hysterectomy by suturing Kimberly's ureter during the procedure. As a result, Kimberly was unable to urinate and was required to undergo an additional procedure wherein a urologist inserted a stent into her ureter in an effort to alleviate that condition.
Claiming damage to Kimberly's ureter, bladder, and kidneys as a result of Dr. Byrnes' negligence in performing the hysterectomy, plaintiffs filed a notice of intent to file a medical malpractice claim on March 27, 1996, as required by MCL 600.2912b(6). Before plaintiffs filed a claim, however, defendants filed for bankruptcy on November 11, 1996. Plaintiffs could not then file suit for medical malpractice because of the automatic stay imposed by the United States Bankruptcy Code. Some years later, plaintiffs filed a motion to lift the automatic stay, which was granted by the bankruptcy court on April 9, 1999. On April 21, 1999, plaintiffs filed an amended notice of intent claiming that Dr. Byrnes had also performed the hysterectomy without medical necessity. On January 11, 2000, plaintiffs filed their medical malpractice claim. The trial court, however, dismissed plaintiffs' claims after concluding that the claims were time- barred under the applicable statute of limitations. This appeal followed.
II. Legal Analysis
A. 11 USC 362 and Tolling of the Statute of Limitations
On appeal, plaintiffs first argue that the trial court erred in failing to rule that the automatic stay imposed under 11 USC 362 tolled the statute of limitations in this matter. We disagree. This Court reviews a trial court's decision to grant a motion for summary disposition de novo to determine if the moving party was entitled to judgment as a matter of law. Similarly, absent a disputed issue of fact, the determination whether a cause of action is barred by a statute of limitations is a question of law that this Court reviews de novo. We also review the interpretation of a statute de novo as a question of law.
Generally, a plaintiff must bring a cause of action for medical malpractice within either two years of the claim's accrual or six months of the date the malpractice was discovered or should have been discovered, whichever is later. A claim for medical malpractice accrues "at the time of the act or omission which is the basis for the claim . . . ." Here, the alleged medical malpractice occurred on October 26, 1995, and was quickly discovered. Therefore, the statute of limitations on plaintiffs' cause of action barred the filing of a claim after October 26, 1997.
Before filing a medical malpractice action, however, a notice of intent must be provided to the defendant. MCL 600.2912b states, in pertinent part:
(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
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