Theisen v. Knake

• Decision Date: 01 October 1999
• Docket Number: Docket No. 210870.
• Citation: 599 N.W.2d 777,236 Mich. App. 249
• Parties: Diane THEISEN, Personal Representative of the Estate of John Theisen, Deceased, Plaintiff-Appellant, v. James E. KNAKE, Elizabeth Copland, Huron Valley Radiology, P.C., and St. Joseph Mercy Hospital, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

599 N.W.2d 777

236 Mich. App. 249

Diane THEISEN, Personal Representative of the Estate of John Theisen, Deceased, Plaintiff-Appellant, v. James E. KNAKE, Elizabeth Copland, Huron Valley Radiology, P.C., and St. Joseph Mercy Hospital, Defendants-Appellees.

Docket No. 210870.

Court of Appeals of Michigan.

Submitted May 6, 1999, at Lansing.

Decided June 18, 1999, at 9:00 a.m.

Released for Publication October 1, 1999.

Joel B. Sklar and Daniel Noveck, Birmingham, for the plaintiff.

O'Leary, O'Leary, Jacobs, Mattson, Perry & Mason, P.C. (by Kevin P. Hanbury), Southfield, for James E. Knake and Huron Valley Radiology, P.C.

Yockey Yockey & Schliem, P.C. (by Kurt D. Yockey and Patrick A. Richards), Farmington Hills, for St. Joseph Mercy Hospital.

O'Connor, DeGrazia & Tamm, P.C. (by Julie McCann O'Connor, Richard M. O'Connor, and Lorraine M. Dolan), Bloomfield Hills, for Elizabeth Copeland.

Before: GRIBBS, P.J., and MICHAEL J. KELLY and HOOD, JJ.

PER CURIAM.

Summary disposition was granted in favor of defendants James Knake, Elizabeth Copland, and St. Joseph Mercy Hospital with regard to plaintiff's claims arising out of the alleged medical malpractice of defendants in their treatment of plaintiff's decedent. Plaintiff appeals as of right, and we affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

Plaintiff, as the personal representative of her deceased husband's estate, filed suit alleging that defendants failed to accurately read x-rays taken of the decedent's hip in January 1995 and failed to properly diagnose his condition. Instead of diagnosing a metastasized cancer pursuant to the January 1995 x-rays, either defendant Knake or defendant Copland reported that the decedent suffered only from very minimal arthritis in the hip. Although the parties dispute when the cancer was actually diagnosed, plaintiff alleged that it was not diagnosed until April 1995. The decedent died in July 1995.

In her second amended complaint, plaintiff alleged that as a result of defendants' failure to timely render a proper diagnosis, the decedent was not immediately afforded aggressive treatment that may have prolonged his life. She also alleged that defendants' malpractice caused a loss of certain retirement and life-long medical benefits to the decedent and his dependents. Apparently, decedent and his family would have been entitled to certain enhanced benefits if his employer had been given a full five-month notice of the decedent's terminal condition. The employer was not given a full five-month notice because of the delay in diagnosis.

Defendant hospital moved for summary disposition pursuant to MCR 2.116(C)(8), arguing that plaintiff did not allege a valid medical malpractice claim. Defendant Copland filed a concurrence and defendant Knake, orally during the motion hearing, joined in the motion. The trial court granted summary disposition, and a stipulation was thereafter entered dismissing defendant Huron Valley Radiology, P.C.

On appeal, we review de novo a grant of summary disposition pursuant to MCR 2.116(C)(8). Beaty v. Hertzberg & Golden, PC, 456 Mich. 247, 253, 571 N.W.2d 716 (1997). All factual allegations in support of the claim are accepted as true, as are any reasonable inferences or conclusions that can be drawn from the facts. Simko v. Blake, 448 Mich. 648, 654, 532 N.W.2d 842 (1995); Smith v. Stolberg, 231 Mich.App. 256, 258, 586 N.W.2d 103 (1998). The motion should be granted only when the claim is so clearly unenforceable as a matter of law that no factual development could possibly justify a right of recovery. Simko, supra.

There are two basic issues that must be resolved. First, we must decide whether plaintiff was entitled to file a claim for medical malpractice arising out of the alleged untimely diagnosis of the decedent's cancer. Second, we must decide whether, assuming plaintiff was entitled to file a claim, a valid malpractice claim was pleaded to the extent that the grant of summary disposition pursuant to MCR 2.116(C)(8) was inappropriate.

We find that plaintiff was clearly entitled to bring the medical malpractice cause of action against defendants. MCL 600.2921; MSA 27A.2921 provides:

All actions and claims survive death. Actions on claims for injuries which result in death shall not be prosecuted after the death of the injured person except pursuant to the next section. If an action is pending at the time of death the claims may be amended to bring it under the next section. A failure to so amend will amount to a waiver of the claim for additional damages resulting from death.

Defendants take the position that only pending claims survive death pursuant to the statute. The trial court agreed, stating, "[t]alking about all actions and claims survive death. That section requires that the claim be filed prior to the death of the individual." We strongly disagree with this interpretation of the statute.

The goal of statutory construction is to interpret and apply the statute in accordance with the Legislature's intent. Mahrle v. Danke, 216 Mich.App. 343, 348, 549 N.W.2d 56 (1996).

Unless defined in the statute, every word or phrase of a statute should be accorded its plain and ordinary meaning; technical terms are to be accorded their peculiar meanings. Nothing will be read into a statute that is not within the manifest intention of the Legislature as gathered from the act itself. The first criterion in determining intent is the specific language of the statute. If the plain and ordinary meaning of the language is clear, judicial construction is normally neither necessary nor permitted. [Vanderlaan v. Tri-County Community Hosp., 209 Mich.App. 328, 332, 530 N.W.2d 186 (1995) (citations omitted, emphasis added).]

In this case, the plain language of the statute states that "[a]ll actions and claims survive death." It does not state that all pending actions and claims survive death. To read the term "pending" into the statute would amount to judicial construction where none is warranted.

In Hardy v. Maxheimer, 429 Mich. 422, 436-438, 416 N.W.2d 299 (1987), the Court discussed the history of § 2921. It noted that early in the legislative development of the survival act, several causes of action, including actions for fraud, deceit, and negligent injuries to persons were allowed to survive the death of a person who could make the claim. Hardy, supra at 436, 416 N.W.2d 299. The list of actions that survived a claimant's death was expanded in 1948. Id. at 437, 416 N.W.2d 299. The Court also noted that in 1961, however, the Legislature abandoned the "laundry list" approach to the survival act and enacted the current version of the statute, which allows all claims to survive death. Id. The intent of the Legislature was stated in the Committee Comment accompanying the revised survival act:

"This section drastically changes the present law, CL (1948) 612.32. At common law, personal rights of action died with the person. This seemed manifestly unfair in certain cases, so Survival Acts were written to allow certain actions to survive. There is no good reason for allowing some actions to survive, and not others, apart from cultural inertia. Since the actions which have not survived in the past are tort actions, it is pertinent to consider the theory of tort damages.

"One purpose of damages in tort is to compensate the injured party. This purpose is defeated if the action does not survive the death of the injured party, or the death of the wrongdoer. Damages in tort are also thought to serve an exemplary purpose, even when not denominated `punitive.' This purpose is defeated if the action does not survive.

"This section is a logical advance in the legislation in this area. That it has not been made earlier may be due to the unfortunate approach of the statutes in listing those actions which do survive, and thus overlooking those which the statute failed to cover. This section has the added advantage of simplicity in application." [Id. at 437-438, 416 N.W.2d 299, quoting the Committee Comment (emphasis in original).]

The Court declared that the language of § 2921 was sweeping and unambiguous and was "universally applicable to all actions and claims which arise under the Revised Judicature Act." Id. at 438, 416 N.W.2d 299 (emphasis in original).

In this case, any medical malpractice claim that the decedent had against defendants survived his death. See Falcon v. Memorial Hosp., 436 Mich. 443, 469, 462 N.W.2d 44 (1990) (Levin, J.). There did not have to be an action pending at the time of his death. When a person dies without having filed any claims or actions that he may have, the decedent's personal representative may file the surviving action. See M.C.L. § 600.5852; MSA 27A.5852.

[T]he personal representative of a deceased who asserts a cause of action on behalf of a deceased stands in the deceased's place for all purposes incident to the enforcement of that claim, including rights and privileges personal to the deceased in his lifetime. [McNitt v. Citco Drilling Co., 60 Mich.App. 81, 88, 230 N.W.2d 318 (1975) (emphasis in original).]

Thus, we find that plaintiff had the right to file any malpractice action that the decedent may have had.

In making this ruling, we would be remiss if we did not address the parties' arguments with regard to the wrongful death statute, M.C.L. § 600.2922; MSA 27A.2922. Plaintiff relies on § 2922 to find support for her request for certain economic damages and wrongfully concludes that pursuant to § 2921, she was required to file suit in accordance with § 2922. Defendants also advance various theories with regard to plaintiff's claims under the wrongful death statute. The wrongful death statute has no bearing on this case and citation of it under the circumstances is not only curious, but also creates confusion. We believe that the confusion stems from the fact that in addition to providing that all actions and claims survive...