Malpractice claim based on negligent administration of drug is dismissed as tardy

Sandra Marquardt allegedly died as a result of the negligent administration of Trasylol during a mitral valve replacement surgery at the University of Michigan.  Attorneys on her behalf filed a malpractice Notice of Intent in 2009 and served it on the University and Dr. Vellaiah Umashankar.  Sandra filed suit in 2010.  She died later that month, allegedly as a result of complications from the original negligence.

The plaintiff was appointed Personal Representative of Sandra's Estate and continued the malpractice action, however, the claim was later dismissed because Sandra's original Notice of Intent was inadequate under the applicable tort reform statute.  In 2011, the P.R. filed a new Notice of Intent, and a malpractice complaint was filed in June of 2012.  The doctor's attorneys sought summary disposition, arguing that the second case based on the improved Notice of Intent was filed too late; the family argued that because the decedent died within 30 days of the running of the original statute of limitations, the limitation period was "tolled" or extended.

The trial judge rejected the family's tolling argument and dismissed the claim.  The judge had previously summarily dismissed the family's claim against a second physician, holding that the Notice of Intent served on that doctor was "nonconforming."  On appeal, the higher court affirmed the trial judge's ruling that the case was filed too late and could not be pursued.