Wrongful death claim dismissed with prejudice where successor P.R. files late
Randall Cepeda died in Saginaw St. Mary's Hospital six days after a gall bladder surgery. His family filed a wrongful death malpractice claim against three doctors and Mid-Michigan Surgical Specialists. The P.R., Randall's widow, did not file the lawsuit within two years of her appointment as Personal Representative, however, as her attorneys believed that the six-month discovery tolling period would applly to the claim. When legal wrangling in the higher courts resulted in a decision that wrongful death claimants could not take advantage of the six-month "tolling period" for malpractice injury suits, Cepeda's attorneys attempted to dismiss their claim voluntarily, so that they might re-file it promptly after the appointment of a new Personal Representative (who would have two years in which to act).
Although the trial judge permitted the dismissal "without prejudice," the Defendants appealed and the Court of Appeals reversed. The higher court held that the rules allowing a Personal Representative two years in which to file suit would not apply to a successor P.R. where the original P.R. had filed suit late. Thus, the Cepeda family joins the long list of Michigan malpractice victims whose claims will never be heard because of errors or complications associated with the tangled medical malpractice "reform" legislation.