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Watt v. Heth2/3/2005
UNPUBLISHED
In this wrongful death action, the personal representative of the estate of the decedent filed suit against defendants, alleging that the breach of duty to provide appropriate medical care caused the decedent's cardiac disease to proceed without diagnosis and treatment and ultimately caused his death. Defendants filed a motion for summary disposition, alleging that the statute of repose barred the litigation, and the trial court agreed. Plaintiff appeals as of right, and we affirm.
I. BASIC FACTS AND PROCEDURAL HISTORY
The decedent, a fifty-one year old male, died on July 3, 1999. The certificate of death concluded that the immediate cause of death was a myocardial infarction with coronary artery disease listed as an underlying cause. The decedent was treated by defendant doctor, Charles Heth, at defendant medical clinic from 1992 to 1996. In November and December 1999, notices of intent to file suit against defendants were mailed. These notices indicated that the decedent was a smoker and a drinker with a family history of cardiac problems; specifically, the decedent's mother had died from a cardiac arrest. The notices also alleged that the decedent had a history of hypertension. Despite these factors, it was alleged that defendants failed to conduct the appropriate "work up" for possible coronary artery disease. The notices further alleged that the decedent discontinued treatment with defendants after he left the area to move north, where he was treated by Dr. Thomas Clouse at the Northpoint Clinic in Roscommon, Michigan, from July 1996, until his death in July 1999. Plaintiff was appointed the personal representative of decedent's estate on January 2, 2001, and letters of authority were issued on that date. The complaint was filed on February 5, 2002.
Defendants moved for summary disposition of the complaint on the basis of MCR 2.116(C)(7). Specifically, defendants alleged that the statute of limitations addressing medical malpractice actions provided for a two-year period from the date of accrual of the malpractice or six months from the date of discovery of the malpractice. However, defendants further alleged that the statute at issue also contained a statute of repose that precluded any claim filed six years after the date of the act or omission. In response, plaintiff asserted that summary disposition was inappropriate because "every treatment date constitute the accrual date for a new cause of action under MCLA 600.5838(1)." Plaintiff also asserted that the litigation was timely filed on the basis of MCL 600.5852 because the lawsuit was commenced within two years of the date of issuance of the letters of authority. The trial court granted the motion for summary disposition in a written opinion, concluding:
Defendants argue that the cause of action arose on December 11, 1992, and that all subsequent treatment did not constitute new acts of alleged negligence. Plaintiff avers that each visit presented new opportunities for Defendants to commit malpractice. The Defendant, Dr. Heth last saw the Decedent, on December 18, 1995. Whether this Court agrees with the Plaintiff's argument regarding a "visit by visit" approach, the statutory deadline as to claims asserted against Dr. Heth expired no later that December 18, 2001. The cause of action was not commenced until February 5, 2002. Similarly, the statute of repose expired as to any treatment rendered by the professional corporation before February 5, 1996. It is for the foregoing reasons that the Motion is granted.
Plaintiff now appeals as of right, contending that the "six year limitation" provision as applied to medical malpractice claims is incorporated into the wrong
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