VandenBerg v. VandenBerg
VandenBerg v. VandenBerg
Opinion of the Court
This case is before this Court following our reversal and remand in VandenBerg v VandenBerg, 231 Mich App 497, 503; 586 NW2d 570 (1998) (VandenBerg I). Plaintiff appeals as of right from the trial court’s order granting summary disposition in favor of defendants under MCR 2.116(C)(7) on the ground that plaintiff’s medical malpractice claim was barred by the statute of limitations. We affirm.
A statute of limitations defense must be raised in a party’s first responsive pleading or by motion filed not later than this responsive pleading. MCR 2.111(F)(2) and (3); see also Phinney v Perlmutter, 222 Mich App 513, 544; 564 NW2d 532 (1997). Here, in response to plaintiff’s complaint, defendants filed answers in which they asserted “[t]hat the claims set forth in [plaintiff’s] complaint did not accrue within the applicable limitations period (under MCLA 600.5805 and 600. 5838) before commencement of said action and [are] therefore barred by the Statute of Limitations.”
Generally, a plaintiff in a medical malpractice case must bring a claim within two years of the act or omission that forms the basis of the claim, or within
In this case, the claim against defendants accrued on October 11, 1990, the last day of treatment and the day decedent died. Thus, pursuant to MCL 600.5805(5), the statute of limitations was set to expire two years later, on October 11, 1992. Plaintiff, however, was not appointed personal representative of decedent’s estate until September 28, 1995. Accordingly, the period of limitation was extended to October 11, 1995, three years after the original period had expired. MCL 600.5852. However, although plaintiff’s complaint was filed within this period, on September 29, 1995, the affidavit of merit was not filed until mid-December 1995. Under Scarsella v Pollak, 232 Mich App 61; 591 NW2d 257 (1998), aff’d 461 Mich 547; 607 NW2d 711 (2000), this was insufficient to timely commence the suit.
In Scarsella, this Court recognized that, “[generally, a civil action is commenced and the period of limitation is tolled when a complaint is filed,” but that “medical malpractice plaintiffs must file more than a complaint; ‘they shall file with the complaint an affidavit of merit . . . .’” Id. at 63-64, quoting MCL 600.2912d(1). The Scarsella panel reasoned that the Legislature’s use of the word “shall”
In reaching this conclusion, we reject plaintiff’s contention that the doctrines of law of the case and res judicata precluded the trial court from granting summary disposition on this ground. The purpose of the law of the case doctrine is to “maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.” Ashker v Ford Motor Co, 245 Mich App 9, 13; 627 NW2d 1 (2001). In VandenBerg I, however, this Court was asked merely to consider the question whether dismissal was warranted where plaintiff failed to file the affidavit of merit required by MCL 600.2912d at the time she filed the complaint. See VandenBerg I, supra at 499. Accordingly, the panel
The doctrine of res judicata is similarly inapplicable here as that doctrine operates merely to preclude similar claims raised in a subsequent lawsuit. Dart v Dart, 224 Mich App 146, 156; 568 NW2d 353 (1997). The proceeding at issue here resulted from this Court’s remand order and is thus part of a continuous action and not a separate lawsuit. Accordingly, the doctrine of res judicata did not preclude defendants from raising a statute of limitations defense on remand.
Moreover, we do not agree that defendants abandoned the statute of limitations defense because they did not file a cross-appeal in VandenBerg I. This Court has held that, generally, “a cross-appeal is not necessary to urge an alternative ground for affirmance, even if the alternative ground was considered and rejected by the lower court or tribunal.” Boardman v Dep’t of State Police, 243 Mich App 351, 358; 622 NW2d 97 (2000). Accordingly, defendants were not required to raise this argument in a cross-appeal in VandenBerg I.
We affirm.
Reference
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- VANDENBERG v. VANDENBERG
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