untimely med mal filing is not saved by successor representative

Noting that no binding authority exists that stands for the proposition a claim may be "revived" by the appointment of a successor PR when the original suit filed by the original PR was dismissed as untimely, the court held that the trial court abused its discretion by granting the plaintiff-PR's request for dismissal without prejudice. The trial court granted the defendants summary disposition on the basis that plaintiff's medical malpractice case was filed after the limitations period expired. Defendants appealed, objecting to language in the trial court's order indicating that the dismissal was "without prejudice" and not an adjudication on the merits. The material facts of the case were not disputed. The decedent was admitted to the defendant-hospital for a cholecystectomy on 8/13/07. He died due to postoperative complications on 8/19/07. Plaintiff was appointed the PR on 11/28/07 and delivered a notice of intent to sue to defendants on 10/2/09. The complaint was filed on 3/10/10. The court noted that the limitations period would have expired, at the latest, on 8/19/09. Since plaintiff was appointed PR on 11/28/07, she had until 11/28/09 to file suit during the saving period provided by MCL 600.5852. The trial court properly dismissed the case under MCR 2.116(C)(7) because it was untimely. However, the trial court dismissed the case without prejudice and with language indicating that the dismissal was not an adjudication on the merits on the basis that time remained under the savings provision for the appointment of a successor PR to pursue a case against the same defendants. Plaintiff cited Eggleston in support of her argument. The court concluded, inter alia, that the Michigan Supreme Court's decision in Washington "undermines the notion that notwithstanding an original" PR's "filing of an untimely complaint, a successor" PR "has the authority to pursue an action against the same defendants." The Supreme Court held in Washington that a successor PR is barred by res judicata from filing a later complaint when the first complaint is dismissed on statute of limitation grounds. "Defendants were entitled to summary disposition because plaintiff failed to file her claim within the period established by the Legislature. An order granting summary disposition based on the statute of limitations is an adjudication on the merits." Thus, they were entitled to dismissal with prejudice. Dismissal without prejudice was inappropriate because they would conceivably be subject to relitigation of the claim if a new PR was appointed. Being subject to a second suit that would otherwise be barred under res judicata would be legally prejudicial to the defendants. Reversed and remanded for entry of an order granting them summary disposition with prejudice.