Under the savings provision, the personal representative of an estate may begin a lawsuit within two years after letters of authority are issued, as long as the lawsuit is brought within three years after the two-year general period of limitations ended. MCL 600.5852. This creates a maximum time of five years for filing suit, unless the six-month discovery rule in MCL 600.5838(2) applies. MCL 600.5838a(1) states, in part: “[A] claim based on . . . medical malpractice . . . accrues at the time of the act or omission that is the basis for the claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.”
In the case the Michigan Appellate Court was deciding, the plaintiff’s complaint was filed on the basis of a number of allegations contending that the defendants committed medical malpractice in treating Patricia Mashike at Rivergate Terrace. The last day the defendants treated Patricia before she was transported to the hospital was May 25, 2017. Therefore, the claim accrued on May 25, 2017, because that is the latest day that an “act or omission that is the basis for the claim of medical malpractice” occurred. MCL 600.5838a(1). The plaintiff, however, asserted that under MCL 600.5805(6), the claim did not accrue until the letters of authority were issued. Under this interpretation, the claim would have accrued on July 26, 2017, when Pokerwinski was appointed personal representative of the estate and the letters of authority were issued.
The Michigan Appellate Court stated, “Plaintiff’s argument conflates the statute of limitations under MCL 600.5805(6) with the “statutory period of limitations” under MCL 600.5852(1). Indeed, the “statutory period of limitations” referenced in Estate of Jesse is the two-year period after the letters of authority are issued in which a personal representative may file suit. Estate of Jesse, 328 Mich App at 144-145. This is not, as plaintiff suggests, the two-year statute of limitations under MCL 600.5805(6). Again, a claim for medical malpractice “accrues at the time of the act or omission that is the basis for the claim of medical malpractice,” and not when the personal representative is appointed. MCL 600.5838a. Thus, plaintiff’s reliance on Estate of Jesse is misplaced.”
“Under MCL 600.5805(6), which articulates the two-year statute of limitations for medical malpractice claims, the claim expired on May 25, 2019. Again, plaintiff did not file suit in this case until January 3, 2020. A straightforward application of the statute of limitations shows that plaintiff’s claim was not timely because it was filed over six months after the statute of limitations expired. Yet, a claim may be nonetheless timely if it meets the criteria of the savings provision of MCL 600.5852. As Waltz describes, a plaintiff may apply the savings provision of MCL 600.5852 if “the deceased died either before or within thirty days after the period of limitations ended.” Waltz, 469 Mich at 648. Clearly, that provision is applicable in this case because Patricia died on May 30, 2017, five days after the claim accrued. As such, a plaintiff “may begin a lawsuit within two years after letters of authority are issued, as long as the lawsuit is brought within three years after the two-year general period of limitations ended.” Id. at 648-649. What is problematic for plaintiff is the failure to meet the former requirement, necessitating that the suit is filed “within two years after the letters of authority are issued.” Id. The letters of authority in this case were issued on July 26, 2017. For the savings provision to apply, plaintiff should have filed the complaint by July 26, 2019. Id. But, again, plaintiff did not file suit until January 3, 2020. Consequently, the savings provision does not apply because the date of filing exceeds the provision’s two-year extension.”
“Under Waltz, the savings provision is not a limitations period, and, instead, is considered “an exception to the limitation period.” Id. The question then becomes whether the claim may be tolled under MCL 600.5856(c). The statute only permits tolling where “[a]t the time notice is given in compliance with the applicable notice period under section 2912b, if during that period a claim would be barred by the statute of limitations or repose.” MCL 600.5856(c). In other words, tolling does not apply if the statute of limitations expired before the end of the notice period. Plaintiff notified defendants of its intent to file suit on July 9, 2019. Once more, the statute of limitations expired on May 25, 2019. Consequently, tolling does not apply to this case because tolling is only permitted where the statute of limitations expired during the notice period. MCL 600.5856(d). Here, the statute of limitations expired on May 25, 2019, some months before the notice period began. Plaintiff’s claim that “the NOI tolling period applies” to the savings provision was rejected by Waltz, which explains that tolling can only be applied against limitations periods, which the savings provision was not … In other words, tolling can only apply against statutes of limitations. Id. Therefore, tolling cannot apply against the savings provision because the savings provision is not a statute of limitations. Id. Consequently, there is no merit to plaintiff’s argument on this point.”
“Plaintiff next argues the trial court abused its discretion when it did not address plaintiff’s argument that, under MCL 600.2301, the trial court was obligated to allow plaintiff to amend the complaint to an earlier filing date because the amended filing date did not affect defendants’ “substantial rights.” This argument, too, holds no merit. As discussed, the amendment allowance under MCL 600.2301 only applies to pending actions. “A proceeding cannot be pending if it was time-barred at the outset.” Driver, 490 Mich at 254. This case was “time-barred at the outset” because the two-year statute of limitations had expired and neither the tolling nor the savings provisions applied. See discussion, supra. Therefore, the trial court did not abuse its discretion in rejecting plaintiff’s argument regarding the ability to amend the complaint.”
Source Estate of Patricia Mashike v. Riverview Medical Investors Limited Partnership, COA No. 354851.
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