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Medical malpractice case dismissed; Court rejects family's argument that defense breached agreement

The family of Frank Early sued Jeffrey Parker, M.D., after Early died while scuba diving.  They claimed that in examinations performed during the two years before Early died while diving, Parker should have observed that Early's heart condition would make diving unsafe, but that Parker failed to act and continued to approve him for diving.

The Estate filed a non-conforming lawsuit that lacked a proper Affidavit of Merit.  Through several years of appeals and new filings, the Courts ultimately held that the Estate had the right to file a new claim.  The family had done so, in order to preserve the statute of limitations, however, by agreement between counsel, the pending substitute claim was dismissed with the intention that a third lawsuit be filed to allow a new, organized schedule.  When the new action was filed, however, the Defendants argued that it was too late, that the statute of limitations had run, and that the pending appellate action did not "toll" the statute or keep it from running.

The Court dismissed the case and the family appealed.  The Plaintiff argued that the attorneys had agreed that the defendant would not raise the statute of limitations issue when they stipulated to dismiss the second Complaint and file a new action.  The Defense attorney denied any such agreement was part of the stipulation to dismiss and that the Plaintiff attorney merely assumed, mistakenly, that the appellate process had "tolled" the statute.  The Court upheld the dismissal, finding from the evidence presented that there was no proof that the Defense attorney had actually "agreed" not to raise the statute of limitations when he stipulated to dismiss the second action; the court found that the defense attorney may have simply decided not to speak to the plaintiff attorney's misunderstanding of the law.
Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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