Opinion
No. 129436.
May 12, 2006.
SC: 129436, reported below: 267 Mich App 565.
CAVANAGH and KELLY, JJ. We would grant leave to appeal.
Leave to Appeal Denied.
I would grant leave to appeal in conjunction with Pappas v Bortz (Docket No. 128864), 475 Mich 855 (2006), to consider whether the Court of Appeals was correct in concluding that MCL 600.5851(1) does not apply to medical malpractice actions. 267 Mich App 565 (2005). The Court of Appeals dissent concluded that, "although MCL 600.5851(7) may limit a claim for malpractice that accrued before the age of eight, its plain language does not limit those plaintiffs whose claims accrued after the age of ten — as in the present case." Id. at 577 (JANSEN, J., dissenting).
MCL 600.5851(1) states that the one-year saving provision applies to those who are mentally disabled "[e]xcept as otherwise provided in subsections (7) and (8) . . . ." Subsection 7 states that if a medical malpractice claimant is eight years of age or older, as in this case, the period of limitations set forth in § 5838a applies. A saving provision is not a period of limitations. Waltz v Wyse, 469 Mich 642, 650 (2004). Subsection 7 says that the period of limitations in 5838a applies; however, it does not say that the saving provision of 5851(1) does not apply.
Therefore, I would grant leave to appeal to further consider the argument of the Court of Appeals dissent.