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Medical malpractice wrongful death claim dismissed because tolling period is not applied

The Estate of Jerald Czarnecki sued Allegan General Hospital after Czarnecki died immediately after admission witha complaint of "shortness of breath."  Czarnecki died on April 20 of 2008, and a Personal Representative of his Estate was appointed that August.  Unfortunately, the PR and her attorneys did not serve a Notice of Intent to Sue  (NOI) on the Defendants until August 13 of 2010.  They were compelled by statute to wait six months from the date of the NOI to file suit.  When they did sue, six months later, the claim was dismissed with prejudice. 

The Michigan Supreme Court has held that while the "notice waiting period" tolls the running of the two year statute of limitations for that six months when a plaintiff cannot sue, this rule applies only in injury cases and not in death cases.  The so-called "Engler Majority" of the Michigan Supreme Court interpreted the law to require that the entire process of preparing to sue, including filing the NOI, waiting the waiting period, and then filing the Complaint and Affidavits of Merit, must be completed within two years of the appointment of the Personal Representative of the Estate.  Even though this shortens the statute of limitations from 24 months to 18 months in the case of an Estate, the Court interpreted the law to require this result rather than treating the "tolling" issue as comparable for both injury and death claims.
Thompson O’Neil, P.C.
309 East Front Street
Traverse City, Michigan 49684
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