Medical Malpracitce

PROCEDURAL POSTURE: The Michigan Court of Appeals entered a judgment that found plaintiff estate representative's medical malpractice complaint, filed on behalf of decedent's estate, had to be dismissed because the affidavits of merit filed with the complaint were insufficient. It then added that dismissal had to be with prejudice because the complaint had not been filed within the applicable limitations period. The state supreme court granted his review request.

OVERVIEW: Decedent went to defendant hospital's emergency room and allegedly received substandard medical care. She died one week later. A medical malpractice complaint was not filed within the two-year statute of limitations period provided in MCL 600.5805(6). Instead, the estate representative filed suit within the saving period afforded him under MCL 600.5852 permitting commencement of an action at any time within two years after letters of authority were issued "although the period of limitations has run" as long as commencement was "within 3 years after the period of limitations has run." However, the affidavits of merit (AOM) he provided were defective. No time was left to toll under the savings period. The trial court denied the summary disposition motion filed by defendants, a doctor and his practice group. Eventually, the appellate court found that dismissal with prejudice was required. The state supreme court agreed that the estate representative's failure to timely file the action meant such a dismissal was required, as an AOM was not a pleading that could be amended retroactively under the applicable version of MCR 2.118 since it was merely a required, separate document.

OUTCOME: The state supreme court affirmed the appellate court's judgment dismissing the estate representative's case with prejudice.