Under Republican interpretation, Estate has only eighteen months to sue health care professionals
Normally, the statute of limitations for a malpractice claim is two years from the date of injury. When the Michigan Legislature wrote a tort "reform" rule requiring the victim to give a health care provider a detailed "notice of intent to sue" [NOI] and to wait six months before filing suit, the law was amended to "tack" or "toll" this "waiting period," so that a victim who gave notice of the malpractice within six months of the end of the two year limitations period would still have the right to bring a claim: if the notice was sent, the victim would have as many days or weeks in which to sue, at the end of the "waiting period," as he or she had left in the limitation period when the malpractice NOI was served.
Not illogically, most knowledgeable practitioners assumed that the same interpretation would apply in a death case. Since the statute of limitations for malpractice runs two years after an Estate is opened and a Personal Representative is appointed, it was assumed that if the P.R. served the required "Notice of Intent to Sue" within two years of appointment, he or she would have the remaining time, at the expiration of the "waiting period," in which to file the lawsuit. Not so fast...
The activist Republican majority appointed and selected to the Supreme Court when Governor Engler was in office interpreted the statutes in a manner inconsistent with the apparent intent of the Legislature's statute "tolling" the statute of limitations during the mandatory "waiting period." It ruled that the statute should not apply to a wrongful death claim because a death claim is brought under a "savings provision" enabling the survivors to sue and is not a "statute of limitations." This "interpretation" of the law, reducing the actual statute of limitations for malpractice death cases to 18 months (since the detailed NOI must be filed within 18 months of appointment to enable the progression of a lawsuit) is one of many devices used by insurance-friendly Republican Justices to curtail lawsuits through judicial activism.The Legislature made a deliberate choice to require a "waiting period" of six months and a detailed notice of intent prior to filing a lawsuit. It acted to clarify that a NOI filed late in the two-year period would not preclude the later suit. It never voted to shorten the statute of limitations for any claims and there was no public discussion of the wisdom of requiring survivors to take formal action within 18 months rather than 24. Nevertheless, that was precisely what occurred, thanks to special interest influence and an activist court.