Verbrugghe v. Select Spec. Hosp.

• Decision Date: 23 March 2006
• Docket Number: Docket No. 263686.
• Citation: 715 N.W.2d 72,270 Mich. App. 383
• Parties: Suzanne VERBRUGGHE, as Personal Representative of the Estate of George Verbrugghe, Deceased, Plaintiff-Appellant, v. SELECT SPECIALTY HOSPITAL-Macomb County, Inc., Arsenio V. DeLeon, M.D., and Marius Laurinaitis, M.D., Defendants-Appellees, and Javed Zia, M.D., Defendant.
• Court: Court of Appeal of Michigan — District of US

715 N.W.2d 72

270 Mich. App. 383

Suzanne VERBRUGGHE, as Personal Representative of the Estate of George Verbrugghe, Deceased, Plaintiff-Appellant, v. SELECT SPECIALTY HOSPITAL-Macomb County, Inc., Arsenio V. DeLeon, M.D., and Marius Laurinaitis, M.D., Defendants-Appellees, and Javed Zia, M.D., Defendant.

Docket No. 263686.

Court of Appeals of Michigan.

Submitted January 5, 2006, at Detroit.

Decided March 23, 2006, at 9:10 a.m.

Released for Publication May 24, 2006.

COPYRIGHT MATERIAL OMITTED

Hertz, Schram & Saretsky, P.C. (by Steve J. Weiss, Kevin J. Peters, and William D. Adams), Bloomfield Hills, for Suzanne Verbrugghe.

Couzens, Lansky Fealk, Ellis, Roeder & Lazar, P.C. (by Karen W. Magdich), Farmington Hills, for Select Specialty Hospital-Macomb County, Inc.

Plunkett & Cooney, P.C. (by Joseph F. Babiarz, Jr.; and Robert G. Kamenc), Bloomfield Hills, for Arsenio V. De Leon, M.D.

Before: MURRAY, P.J., and JANSEN and KELLY, JJ.

MURRAY, P.J.

I. Introduction

This appeal involves the second medical malpractice lawsuit filed on behalf of the estate of George Verbrugghe against these defendants. In the first lawsuit, the Macomb Circuit Court properly dismissed the case on statute of limitations grounds, a decision that we have upheld in an opinion issued simultaneously with this opinion. See Verbrugghe v. Select Specialty Hosp., unpublished opinion per curiam of the Court of Appeals, issued March 23, 2006 (Docket No. 262748, 2006 WL 740084). However, just before that first dismissal, a successor personal representative (the sister of the initial representative) was appointed. The successor representative not only replaced the initial representative on the caption of the complaint before the dismissal occurred in the first lawsuit, but she also filed a second lawsuit in the same circuit court.¹

The trial court also dismissed this case on statute of limitations grounds, MCR 2.116(C)(7), as well as offering several alternative grounds supporting its decision. Central to this appeal is whether MCL 600.5852, as enforced by Eggleston v. Bio-Medical Applications of Detroit, Inc., 468 Mich. 29, 658 N.W.2d 139 (2003), allowed plaintiff to bring this second lawsuit. We conclude that under the statute and Eggleston plaintiff could do so. We also hold that res judicata did not bar this lawsuit, because a dismissal on statute of limitations grounds does not constitute an adjudication on the merits. Accordingly, we reverse the trial court's order dismissing this case with prejudice, and, for the reasons stated below, remand for entry of an order of dismissal without prejudice.

II. Material Facts and Trial Court Proceedings

As with any case dealing with the statute of limitations, the dates of certain events are critical. The allegations in this case are that, on August 14, 2001, the decedent underwent hip replacement surgery at St. John Macomb Hospital. Thereafter, the decedent was transferred to Select Specialty Hospital-Macomb County, where he was allegedly treated with excessive antibiotics and suffered from a low potassium level. The decedent was released from care on October 14, 2001. By October 18, 2001, the decedent had passed away from congestive heart failure.

The initial personal representative, Steven Verbrugghe, was appointed on December 26, 2001, submitted a notice of intent to bring a medical malpractice suit on December 2, 2003, and filed the first lawsuit on June 24, 2004. Defendants in that case filed motions for summary disposition based on the expiration of the period of limitations. On September 27, 2004, at a time when briefing and arguments had concluded but no decision by the circuit court had been rendered, Suzanne Verbrugghe was issued letters of authority to be the successor personal representative. The successor representative replaced the initial representative on the caption of the first complaint, and, on October 21, 2004, also filed this lawsuit. Thereafter, on November 29, 2004, the trial court dismissed the initial lawsuit because it was untimely filed.

Defendants Select Specialty and Dr. DeLeon then filed motions for summary disposition in this case, arguing that the case was filed outside the applicable limitations period, that res judicata barred the action, that plaintiff had failed to file a notice of intent before proceeding with this case, and that plaintiff had failed to comply with MCR 2.113(C)(2)(b). On June 10, 2005, the circuit court granted defendants' motions, agreeing with the first three arguments noted above, while not addressing defendants' argument that plaintiff violated MCR 2.113(C)(2)(b).²

III. Analysis

"`This Court reviews a trial court's decision on a motion for summary disposition pursuant to MCR 2.116(C)(7) de novo to determine whether the moving party was entitled to judgment as a matter of law.'" Rinas v. Mercer, 259 Mich.App. 63, 67, 672 N.W.2d 542 (2003) (citation omitted). In addition, the interpretation and application of statutes present questions of law that we review de novo. Eggleston, supra at 32, 658 N.W.2d 139.

A. Timeliness

Plaintiff argues that the trial court erred in rejecting her argument that the issuance of letters of authority for her to serve as the successor personal representative and her subsequent filing of a new complaint were proper under MCL 600.5852 and Eggleston. For their part, defendants argue that Eggleston is factually distinguishable because the Eggleston successor personal representative was appointed out of "necessity," while plaintiff's appointment was only meant to avoid the demise of the medical malpractice case filed by the initial personal representative. In addition, defendants argue that, unlike the personal representative in Eggleston, the initial personal representative in this case had initiated a cause of action. The trial court agreed with defendants and, in dismissing this action, relied in part on factual distinctions between this case and Eggleston.

MCL 600.5852 states:

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. [Emphasis added.]

In applying this statute to this case, our task is to enforce the words used by the Legislature, not to judicially craft exceptions to those words:

Because our judicial role precludes imposing different policy choices than those selected by the Legislature, our obligation is, by examining the statutory language, to discern the legislative intent that may reasonably be inferred from the words expressed in the statute. People v. McIntire, 461 Mich. 147, 152-153, 599 N.W.2d 102 (1999). If the language of a statute is clear and unambiguous, the plain meaning of the statute reflects the legislative intent and judicial construction is not permitted. Tryc v. Michigan Veterans' Facility, 451 Mich. 129, 135, 545 N.W.2d 642 (1996). We must give the words of a statute their plain and ordinary meaning. [Herald Co. v. Bay City, 463 Mich. 111, 117-118, 614 N.W.2d 873 (2000).]

See, also, Threet v. Pinkston, 20 Mich.App. 39, 41, 173 N.W.2d 731 (1969) ("We may not attempt to rewrite the statute ... nor may we read into it restrictions at variance with its plain language and clear meaning.").

The Eggleston Court noted how clear the words used in the statute were, which necessitated a decision that

[t]he statute simply provides that an action may be commenced by the personal representative "at any time within 2 years after letters of authority are issued although the period of limitations has run." ... The language adopted by the Legislature clearly allows an action to be brought within two years after letters of authority are issued to the personal representative. The statute does not provide that the two-year period is measured from the date letters of authority are issued to the initial personal representative. [Eggleston, supra at 33, 658 N.W.2d 139.]

It appears to us that the Eggleston Court's conclusion was based solely on the statutory language. The only facts relevant to the Eggleston holding were that the initial personal representative died and that a successor was appointed. The Court concluded, based on the statute, that the successor's two-year period of limitations started with the issuance of the successor's letters of authority, not the initial personal representative's papers.³ Thus, because the plaintiff was the personal representative of the estate and had otherwise filed within the two-year period and three-year ceiling, the complaint was proper and timely:

Plaintiff was "the personal representative" of the estate and filed the complaint "within two years after letters of authority [were] issued," and "within three years after the period of limitations ha[d] run." MCL 600.5852. The action was therefore timely. [Eggleston, supra at 33, 658 N.W.2d 139.]

Therefore, unlike McLean v. McElhaney, 269 Mich.App. 196, 711 N.W.2d 775; we do not believe the facts in this case allow us to avoid applying the plain language of this statute as interpreted in Eggleston. Thus, because McLean did not apply Eggleston, we find McLean provides us no useful guidance.

As noted in Eggleston, the statute contains only two limitations on the circumstances under which a successor personal representative can take advantage of the two-year period of limitations: the decedent passing away during the limitations period and the successor receiving letters of authority. Once these events occur, the statute simply indicates that if a lawsuit is brought by a successor, it must be filed within two years of the issuance of the letters of authority, but no more...