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No. 131879
| Mary Mullins, Personal Representative of the |
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Allan Falk |
| Estate of Nina F. Mullins, Deceased, |
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Plaintiff-Appellant, |
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(Appeal from Ct of Appeals) |
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(Washtenaw - Shelton, D. ) |
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| St. Joseph Mercy Hospital, d/b/a St. Joseph |
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Michael L. Van Erp |
| Mercy Health System, Jason White, M.D., Rafael |
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| J. Grossman, M.D., and Kimberly Stewart, M.D., |
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| Defendants-Appellees, |
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| James R. Bengston, and Walter Whitehouse, M.D., |
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Defendants. |
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| __________________________________________ |
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Click to view briefs in Adobe format:
Plaintiff-Appellant's Brief on Appeal>>
Plaintiff-Appellant's Reply Brief>>
Defendants-Appellees' Brief on Appeal>>
Botsford Hospital's Amicus Curiae Brief>>
Michigan Health and Hospital Association's Amicus Curiae Brief>>
Michigan Trial Lawyers Association's Amicus Curiae Brief>>
Background
The original personal representative in this medical malpractice case filed suit more than two years after his appointment and six months after serving the defendants with a notice of intent to file suit. The defendants moved for summary disposition, citing Waltz v Wyse, 469 Mich 642 (2004). In Waltz, the Supreme Court held that the two-year savings period for filing suit under the wrongful death savings act, MCL 600.5852, is not tolled by the filing of a notice of intent under MCL 600.5856 because it is a savings provision and not a statute of limitations or repose. In this case, the defendants argued that the complaint had to be dismissed as untimely under Waltz, because it was not filed within two years of the personal representative’s appointment, as required by MCL 600.5852, and the statute of limitations had expired. But the trial court denied the defendants’ motion for summary disposition. The defendants sought leave to appeal to the Court of Appeals. Instead, the Court of Appeals issued an order remanding the case to the trial court for reconsideration in light of the Court of Appeals’ decision in Ousley v McLaren, 264 Mich App 486 (2004), which held that Waltz applies retroactively. The trial court again denied summary disposition, finding both Waltz and Ousley to be distinguishable from this case. Although the Court of Appeals initially held that Ousley was wrongly decided, a majority of a seven-judge panel, convened to resolve the conflict between that decision and the Ousley ruling, reaffirmed Ousley in a published opinion. The plaintiff appeals.
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