Vega v. LAKELAND HOSPITALS AT NILES AND ST. JOSEPH, INC. , 475 Mich. 854 ( 2006 )

713 N.W.2d 262 (2006) 475 Mich. 854

Jodie VEGA, Conservator of the Estate of Jeffrey Hurley, a Minor, Plaintiff-Appellant,
v.
LAKELAND HOSPITALS AT NILES AND ST. JOSEPH, INC., St. Joseph Medical Associates, P.C. and Beth Vanderah and Michael Speers, Co-Personal Representatives of the Estate of David Alan Speers, M.D., Deceased, Defendants-Appellees.

Docket No. 129436. COA No. 253739.

Supreme Court of Michigan.

May 12, 2006.

On order of the Court, the application for leave to appeal the July 28, 2005 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.

MICHAEL F. CAVANAGH and MARILYN J. KELLY, JJ., would grant leave to appeal.

MARKMAN, J., dissents and states as follows:

I would grant leave to appeal in conjunction with Pappas v. Bortz, 2006 WL 1303131, (Docket No. 128864), 475 Mich. 855, 713 N.W.2d 262 (2006), to consider whether the Court of Appeals was correct in concluding that MCL 600.5851(1) does not apply to medical malpractice actions. 267 Mich.App. 565, 705 N.W.2d 389 (2005). The Court of Appeals dissent concluded that, "although MCL 600.5851(7) may limit a claim for malpractice that accrued before the age of eight, its plain language does not limit those plaintiffs whose claims accrued after the age of ten—as in the present case." Id. at 577, 705 N.W.2d 389 (Jansen, J., dissenting).

MCL 600.5851(1) states that the one-year savings provision applies to those who are mentally disabled "[e]xcept as otherwise provided in subsections (7) and (8)...." Subsection 7 states that if a medical malpractice claimant is eight years of age or older, as in this case, the period of limitations set forth in § 5838a applies. A savings provision is not a period of limitations. Waltz v. Wyse, 469 Mich. 642, 650, 677 N.W.2d 813 (2004). Subsection 7 says that the period of limitations in 5838a applies; however, it does not say that the savings provision of 5851(1) does not apply.

Therefore, I would grant leave to appeal to further consider the argument of the Court of Appeals dissent.