Opinion
Docket No. 47963.
Decided January 6, 1981. Leave to appeal applied for.
Levine Benjamin, P.C. (by Alvin L. Levine and Linda K. Harris), for plaintiff.
Wilson, Portnoy, Basso Leader, P.C. (by Robert P. Roth), for defendant.
Plaintiff appeals a July 12, 1979, order of the Genesee County Circuit Court which granted partial accelerated judgment to the defendant.
Plaintiff's decedent began treatment at defendant hospital on October 30, 1975, under the care of Paul Markunas, M.D., a staff physician. That treatment continued until January 28, 1976. The decedent thereafter sought treatment at a different hospital. On March 5, 1976, the decedent was diagnosed as having a long-standing cancerous condition. He died on December 13, 1977.
Plaintiff filed her complaint on September 28, 1978, alleging that defendant: (1) failed to properly supervise the care and treatment provided the decedent by Dr. Markunas, (2) failed to utilize proper diagnostic techniques, and (3) was negligent in the selection and retention of Dr. Markunas as a staff physician.
On November 8, 1978, defendant moved for accelerated and summary judgment, arguing respectively that this is a medical malpractice action barred by a two-year statute of limitations, MCL 600.5805(3); MSA 27A.5805(3), and that governmental immunity barred the suit. The motion for summary judgment was denied. That denial has not been appealed.
The motion for accelerated judgment was granted in part. The lower court reasoned as follows:
(1) This is a wrongful death action;
(2) Plaintiff's first and second allegations allege medical malpractice;
(3) A two-year statute of limitations applies in a wrongful death action where the alleged wrong is medical malpractice;
(4) A medical malpractice action must be filed within two years of the date of the injured person's last treatment or within six months after that person discovers or should have discovered the existence of the claim, whichever is later, MCL 600.5838; MSA 27A.5838;
(5) Plaintiff's complaint was not filed within either of these periods;
(6) Allegations (1) and (2) were barred by the running of the statute of limitations;
(7) Plaintiff's third allegation alleges general negligence. Thus, a three-year statute of limitations is applicable. MCL 600.5805(7); MSA 27A.5805(7). That period had not run as of the date on which plaintiff filed her complaint. Plaintiff's third allegation was not barred by the running of the applicable statute of limitations.
Accelerated judgment was granted as to allegations (1) and (2) and denied as to allegation (3). Plaintiff appeals the grant of accelerated judgment as to allegations (1) and (2). We reverse.
We begin our analysis by emphasizing that this is a wrongful death cause of action, and that "the wrongful death statute is a remedial act intended to provide compensation to persons whose injuries are real but of a type not actionable at common law". Crystal v Hubbard, 92 Mich. App. 240, 243; 285 N.W.2d 66 (1979), lv gtd 408 Mich. 895 (1980). These persons are "of that class who, by law, would be entitled to inherit the personal property of the deceased had he died intestate". The damages which may be recovered in such an action include "recovery for the loss of the society and companionship of the deceased". Finally, "[t]he amount recovered in every such [wrongful death] action shall be distributed to the surviving spouse and next of kin who suffered injury and in proportion thereto". MCL 600.2922(2); MSA 27A.2922(2).
Given the identity of the persons who may recover in a wrongful death suit and the nature of the damages which are assessed therein, it is generally held that a wrongful death cause of action does not accrue until the death occurs. Coury v General Motors Corp, 376 Mich. 248, 251; 137 N.W.2d 134 (1965). Likewise, in wrongful death cases which are grounded on medical malpractice, regardless of when the malpractice cause of action accrues, the wrongful death plaintiff's cause of action could not accrue until death occurred. See, e.g., Weiss v Bigman, 84 Mich. App. 487, 496; 270 N.W.2d 5 (1978), lv den 405 Mich. 820 (1979) (CAVANAGH, J., concurring separately). Were it otherwise, the personal representative of the decedent (by whom the suit must be brought) would have to be prescient, or the suit would be barred in cases where the limitation period runs before death occurs.
We distinguish the present case from medical malpractice cases which do not result in death. In such cases we note that the accrual of the cause of action is governed by MCL 600.5838; MSA 27A.5838.
Given the fact that plaintiff's decedent died on December 13, 1977, and that the complaint was filed on September 28, 1978, we need not reach the issue of which statute of limitations applies. As this suit was brought within one year of the date of death, it matters not whether we apply the two-year medical malpractice statute or the three-year statute for all other actions to recover for injuries to persons and property. Accordingly, allegations (1) and (2) of plaintiff's complaint were not barred by the running of the statute of limitations. The grant of partial accelerated judgment was erroneous and is reversed.
In September 1978, MCL 600.5805(3); MSA 27A.5805(3).
In September 1978, the correct statutory citation was MCL 600.5805(7); MSA 27A.5805(7). Effective December 1978, this section was amended to provide that "[t]he period of limitations is 3 years after the time of the death or injury for all other actions to recover damages for the death of a person, or for injury to a person or property". MCL 600.5805(8); MSA 27A.5805(8). (Emphasis supplied.)
Reversed and remanded for proceedings consistent with this opinion.
A.C. MILLER, J., concurred.
I respectfully dissent. A wrongful death action, where the alleged wrong is grounded in medical malpractice, must be brought within two years of the date of last treatment or within six months after a person discovers or should have discovered the existence of his claim, whichever is later. MCL 600.5805(3); MSA 27A.5805(3), MCL 600.5838; MSA 27A.5838.
In Weiss v Bigman, 84 Mich. App. 487, 492-493; 270 N.W.2d 5 (1978), lv den 405 Mich. 820 (1979), the majority, under similar facts, rejected the notion that either the medical malpractice two-year statute of limitations or the accrual thereof was circumvented because the action was brought under the wrongful death act.
"After examining the plaintiff's complaint in the instant case, we conclude that the allegations contained therein were `drafted solely with the intent to allege malpractice'. * * * Therefore, the medical malpractice statute of limitations, MCL 600.5805(3); MSA 27A.5805(3), is applicable. This statute of limitations begins to run from the date of last treatment, or from the date when the asserted malpractice is or should have been discovered, whichever is later." (Citation omitted.)
In the instant case, MCL 600.5838; MSA 27A.5838, as amended, is applicable. Plaintiff's allegations of medical malpractice are barred unless the action was brought two years after the date of "last treatment" or within six months after "discovery", whichever was later. The "last treatment" was January 28, 1976, and "discovery" was March 5, 1976. Hence, January 28, 1978, was the latest date on which plaintiff could have commenced the action. Plaintiff's complaint was untimely as it was not filed until September 28, 1978. I would affirm the trial court's grant of partial accelerated judgment.