Braverman v. Garden City Hosp.

• Decision Date: 05 June 2007
• Docket Number: Docket No. 264091.,Docket No. 264029.
• Citation: 275 Mich. App. 705,740 N.W.2d 744
• Parties: Eric A. BRAVERMAN, Successor Personal Representative of the Estate of Patricia Swann, Deceased, Plaintiff-Appellee, v. GARDEN CITY HOSPITAL, a/k/a Garden City Hospital, Osteopathic, Defendant-Appellee, and John R. Schairer, D.O., Gary Yashinsky, M.D., Abhinav Raina, M.D., and Providence Hospital and Medical Centers, Inc., Defendants-Appellants. Eric A. Braverman, Successor Personal Representative of the Estate of Patricia Swann, Deceased, Plaintiff-Appellee, v. Garden City Hospital, a/k/a Garden City Hospital, Osteopathic, Defendant-Appellant, and John R. Schairer, D.O., Gary Yashinsky, M.D., Abhinav Raina, M.D., and Providence Hospital and Medical Centers, Inc., Defendants.
• Court: Court of Appeal of Michigan — District of US

740 N.W.2d 744

275 Mich. App. 705

Eric A. BRAVERMAN, Successor Personal Representative of the Estate of Patricia Swann, Deceased, Plaintiff-Appellee, v. GARDEN CITY HOSPITAL, a/k/a Garden City Hospital, Osteopathic, Defendant-Appellee, and John R. Schairer, D.O., Gary Yashinsky, M.D., Abhinav Raina, M.D., and Providence Hospital and Medical Centers, Inc., Defendants-Appellants.

Eric A. Braverman, Successor Personal Representative of the Estate of Patricia Swann, Deceased, Plaintiff-Appellee, v. Garden City Hospital, a/k/a Garden City Hospital, Osteopathic, Defendant-Appellant, and John R. Schairer, D.O., Gary Yashinsky, M.D., Abhinav Raina, M.D., and Providence Hospital and Medical Centers, Inc., Defendants.

Docket No. 264029.

Docket No. 264091.

Court of Appeals of Michigan.

Submitted February 2, 2007, at Lansing.

Decided June 5, 2007 at 9:10 a.m.

Released for Publication September 28, 2007.

Allan Falk, P.C. (by Allan Falk), Okemos, for Eric A. Braverman.

Feikens, Stevens, Kennedy & Galbraith, P.C. (by Jon Feikens), Detroit, for Garden City Hospital.

Plunkett & Cooney, P.C. (by Robert G. Kamenec), Bloomfield Hills, for John Schairer, D.O., Gary Yashinsky, M.D., Abhinav Raina, M.D., and Providence Hospital and Medical Centers, Inc.

Before: WHITE, P.J., and MARK J. CAVANAGH, SAAD, HOEKSTRA, O'CONNELL, OWENS, and COOPER, JJ.

PER CURIAM.

Pursuant to MCR 7.215(J), this Court convened a special panel to resolve the conflict between the opinions in Braverman v. Garden City Hosp., 272 Mich.App. 72, 724 N.W.2d 285 (2006) (Braverman I), vacated in part 272 Mich.App. 801, 727 N.W.2d 402 (2006),¹ and Verbrugghe v. Select Specialty Hosp.-Macomb Co., Inc., 270 Mich.App. 383, 715 N.W.2d 72 (2006) application for leave to appeal held in abeyance pending decision in Washington v. Sinai Hosp. of Greater Detroit, unpublished opinion of the Court of Appeals, issued December 1, 2005, 2005 WL 3234665 (Docket No. 253777), lv gtd 475 Mich. 909, 717 N.W.2d 336 (2006). See ___ Mich. ___, 722 N.W.2d 885 (2006). This matter is being decided without oral argument pursuant to MCR 7.215(J)(5).

We conclude that the instant case is distinguishable from Verbrugghe, and that Halton v. Fawcett, 259 Mich.App. 699, 675 N.W.2d 880 (2003), on which Verbrugghe relied, is not properly interpreted to mean that the same natural person who files the notice of intent must file the complaint in situations involving a duly appointed personal representative who succeeds a duly appointed predecessor personal representative. Part III of Braverman I, vacated by an earlier order of this Court, is replaced with the following opinion, which concludes that a notice of intent sent by a predecessor personal representative can support a complaint filed by a successor personal representative.

I

Plaintiff's decedent, Patricia Swann, went to defendant Garden City Hospital on April 18, 2000, complaining of chest pain and other problems. She was treated by defendant John R. Schairer, D.O., who released her on April 21, 2000, without performing a stress test.

In October 2001, Swann became dizzy at home, fell, and struck her head. She again went to Garden City Hospital, where Dr. David Komasara closed her scalp laceration with staples and ordered a CAT (computerized axial tomographic) scan of her head. Defendant Gary Yashinsky, M.D., removed Swann's staples on October 19, 2001. Although Swann complained of dizziness at the time, Yashinsky made no attempt to diagnose the cause.

In November 2001, Swann was admitted to defendant Providence Hospital, where she was attended by defendant Abhinav Raina, M.D., who discharged her without ordering a Holter monitor (a portable device that monitors the heart's electrical activity) or a stress test. Swann died at home on February 18, 2002, as the result of "fibromuscular dysplasia of the small coronary arteries." Plaintiff asserts that defendants were negligent for failing to diagnose and treat the condition.

Swann's mother, Grace Fler, was initially appointed personal representative of Swann's estate on October 29, 2002. In June 2004, Fler petitioned to resign as personal representative and for the appointment of plaintiff as her successor. While that petition was pending, on July 8, 2004, Fler's attorney served defendants with a notice of intent to sue.

The notice lists as "Claimant" the "Estate of Patricia Swann, Individually, and through her duly appointed Representative." The notice suggests that the physicians who treated Swann from April 2000 to November 2001 should not have discharged her without performing further cardiac testing, through either a stress test or a Holter monitor, which would have led to further treatment that would have prevented her death.

Plaintiff was appointed personal representative of the estate on August 18, 2004. Plaintiff filed suit on October 29, 2004. That complaint was voluntarily dismissed because the period during which an action could not be commenced following service of the notice had not expired. Plaintiff refiled on January 25, 2005.

All defendants filed motions for summary disposition on the ground that the limitations period had expired. The trial court denied defendants' motions for summary disposition, citing Eggleston v. Bio-Medical Applications of Detroit, Inc., 468 Mich. 29, 658 N.W.2d 139 (2003).

This Court granted leave to appeal and consolidated the appeals of the Garden City defendants and the other defendants. The Braverman I majority held that the trial court properly applied Eggleston in denying defendants' motions for summary disposition. Braverman I, 272 Mich.App. at 76, 724 N.W.2d 285. But the majority went on to conclude that this case goes beyond the question of timeliness "because plaintiff was not the same `person' who filed the notice of intent. . . ." Id. The Braverman I majority noted that the holding in Verbrugghe was based on Halton and that "despite the distinct factual circumstances, Verbrugghe does not limit its reliance on Halton." Id. at 77, 724 N.W.2d 285. Thus, the Braverman I majority concluded that the holding in Verbrugghe "must be read to generally require that the same human being that files the notice of intent must file the complaint ... despite any substitution of parties. . . ." Id. The majority thus reluctantly held that defendants had a sound basis for summary disposition. Id. at 75-77, 83-84, 724 N.W.2d 285. However, the majority concluded that Garden City Hospital had waived that defense, having "expressly accepted the notice of intent at issue as plaintiff's notice of intent." Id. at 87, 724 N.W.2d 285. Accordingly, the majority chose to "remand this matter to the trial court for any decision concerning further proceedings, i.e., whether defendants, other than Garden City, are now entitled to dismissal with prejudice." Id. at 88, 724 N.W.2d 285.²

II

This case concerns the interplay between the ordinary statute of limitations, the notice requirements and attendant tolling, the saving statute for personal representatives, and the provisions regarding successor personal representatives.

MCL 600.5805(6) provides generally that an action alleging malpractice must be commenced within two years after the claim accrues. In cases of medical malpractice, MCL 600.2912b(1)³ adds the requirement that a medical malpractice plaintiff give notice of intent to sue "not less than 182 days before the action is commenced." MCL 600.5856(c) further provides that the period of limitations is tolled at the time notice is given "if during that period a claim would be barred by the statute of limitations or repose; but in this case, the statute is tolled not longer than the number of days equal to the number of days remaining in the applicable notice period after the date notice is given."

MCL 600.5852 provides:

If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run. But an action shall not be brought under this provision unless the personal representative commences it within 3 years after the period of limitations has run.

However, the tolling provision of MCL 600.5856 does not operate to extend the two years during which a personal representative may file a malpractice claim. Waltz v. Wyse, 469 Mich. 642, 655, 677 N.W.2d 813 (2004). And "the three-year ceiling in the wrongful death saving provision is not an independent period in which to file suit; it is only a limitation on the two-year saving provision itself." Farley v. Advanced Cardiovascular Health Specialists, PC, 266 Mich.App. 566, 575, 703 N.W.2d 115 (2005). But a successor personal representative has a new two-year period in which to file a medical malpractice case from the time he or she is granted letters of authority, if he or she acts within three years after the period of limitations has run. Eggleston, 468 Mich. at 33, 658 N.W.2d 139.

In this case, the question is whether plaintiff, as successor personal representative, could file suit in reliance on his predecessor's service upon defendants of the notice of intent to sue.

III

Braverman I set forth the pertinent facts of Verbrugghe:

In Verbrugghe, . . . as in this case, a successor personal representative was appointed. However, in Verbrugghe, unlike here, the initial personal representative had already filed a notice of intent and a medical malpractice complaint. The successor personal representative was then appointed and replaced the initial representative on the caption of the complaint. Additionally, the successor personal representative filed a second complaint in the same circuit court, without filing a notice of intent. The trial court dismissed the second lawsuit on statute of limitations grounds, as well as other grounds. Verbrugghe, [270...