Hawkins v. Regional Medical Laboratories, PC , 415 Mich. 420 ( 1982 )

Ryan, J.

Plaintiff, as executrix for the estate of her deceased husband, Larry M. Hawkins, brought suit against defendants alleging medical malpractice resulting in death.

In March of 1975, Dr. Spencer removed a tumor-like mass from the hip of Mr. Hawkins. A specimen was examined by Dr. Collins, a member of Regional Medical Laboratories, who diagnosed it as non-cancerous. The wound did not heal as expected and there continued an excess accumulation and drainage of fluid. A specimen of fluid was examined by Dr. Walters who also found no evidence of malignancy. Mr. Hawkins failed to recover and on April 29, 1975 he was transferred to the University of Michigan Hospital in Ann Arbor. After that date, none of the defendants rendered any further treatment or services to Mr. Hawkins.

Very shortly after his transfer to Ann Arbor, Mr. Hawkins’ condition was diagnosed as a malignant fibrous histiocytoma (cancerous tumor). As treatment, he underwent a hemipelvectomy (amputation of one leg and half the pelvis). In her complaint, plaintiff alleges that, despite this surgery, a subsequent spread of the malignancy caused Mr. Hawkins’ death on January 27, 1976.

On January 6, 1978, plaintiff filed this action, claiming that defendants’ medical malpractice caused her husband’s death. Defendants moved for accelerated judgment, claiming that the suit was barred by the malpractice statute of limitations. MCL 600.5805(4); MSA 27A.5805(4). The motion was denied. On appeal the Court of Appeals reversed, holding that proper application of the statute barred the action.

We granted leave to appeal primarily to determine "whether plaintiff’s claim under the wrongful death act accrued on the date of [the decedent’s] death or in accordance with the accrual provisions of the malpractice statute of limitations (MCL 600.5838; MSA 27A.5838)”. 410 Mich 870 (1980).

I

An appreciation of several statutory provisions involved in this dispute is necessary for an understanding of the discussion which follows.

MCL 600.2921; MSA 27A.2921, dealing with the survival of actions, states:

"All actions and claims survive death. Actions on claims for injuries which result in death shall not be prosecuted after the death of the injured person except pursuant to the next section. If an action is pending at the time of death the claims may be amended to bring it under the next section. A failtfre to so amend will amount to a waiver of the claim for additional damages resulting from death.”

MCL 600.2922; MSA 27A.2922, is the wrongful death statute. Its pertinent provisions are:

"(1) Whenever the death of a person or injuries resulting in death shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall be brought only under this section.

"(2) Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, under all of the circumstances to those persons who may be entitled to such damages when recovered including damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death.”

MCL 600.5805; MSA 27A.5805 sets out various limitations periods. Its applicable provisions before its amendment in 1978 were:

"No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whbm he claims, he commences the action within the periods of time prescribed by this section.

"(3) The period of limitations is 2 years for actions charging malpractice.

"(7) The period of limitations is 3 years for all other actions to recover damages for injuries to persons and property.”¹

MCL 600.5827; MSA 27A.5827 provides:

"Except as otherwise expressly provided, the period of limitations runs from the time the claim accrues. The claim accrues at the time provided in sections 5829 to 5838, and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.”

MCL 600.5838; MSA 27A.5838 referred to by the above provision, prior to amendment in 1975, stated:

"A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudo-professional capacity as to the matters out of which the claim for malpractice arose.”²

A

Plaintiffs fundamental contention is that the wrongful death statute creates a new and independent cause of action which arises only at death. Therefore, she argues, the limitation period cannot begin to run until that cause of action "accrues” at death. Defendants counter that the limitations period begins running on the date of last treatment as provided for medical malpractice actions in MCL 600.5827; MSA 27A.5827 and MCL 600.5838; MSA 27A.5838.

A proper understanding of the history of the wrongful death act is essential for an adequate understanding of our resolution of the issue.

Prior to 1939, two statutes existed under which an action could be brought in cases of injury resulting in death: the survival act and the wrongful death act. Early in its history, Michigan adopted a rather liberal "survival act” to preserve causes of action which, under common law, were terminated by the death either of the person injured or the tortfeasor. 1846 Rev Stats, ch 101, § 5. This act was amended by 1885 PA 113 and 1897 PA 148 to include, as surviving actions, fraud, deceit and negligent injuries to persons. It was perpetuated in this form by the former Judicature Act (former 1915 CL 12383; 1929 CL 14040) and read:

"In addition to the actions which survive by the common law the following shall also survive, that is to say, actions of replevin, actions for the conversion of property, for deceit, for assault and battery, for false imprisonment, for negligent injuries to persons, for damages done to real and personal estate, and actions to recover real estate, or any interest therein, where persons have been induced to part with the same through fraudulent representations and deceit.” (Emphasis added.)

In 1848, pursuant to 1848 PA 38, the so-called "death act” was passed and remained unchanged until amended in 1939. Prior to the 1939 amendment, § 1 of the act (1929 CL 14061) read:

"Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured.”

The interplay between these two statutes was examined by this Court in Ford v Maney’s Estate, 251 Mich 461, 464-465; 232 NW 393 (1930):

"The courts are in conflict upon the respective scope and operation of the death act and survival statute. LRA 1915E, 1119, note; LRA 1916C, 973, note. In this State it is held that the death act created a cause of action unknown to the common law, not by way of survival of a right accruing to the deceased which before had abated at [his] death, but as a new and special remedy accruing to those who suffer loss by the death; and that the legislature did not intend to give two remedies for death by negligent act, but that the death act and the survival act is each exclusive within its sphere. The line of cleavage between them is whether the death is instantaneous. The legal test of instantaneous death was devised in order to afford a practical working of the statutes, death being seldom instantaneous in fact. The test was established, not in an attempt to bring the acts into harmony with common-law principles but by way of judicial interpretation of legislative intention in the construction of statutes which change the common law and have points of conflict. Sweetland v Chicago & G T R Co, 117 Mich 329 [75 NW 1066 (1898)]; Dolson v Lake Shore & M S R Co, 128 Mich 444 [87 NW 629 (1901)]; Lincoln v Detroit & M R Co, 179 Mich 189 [146 NW 405 (1914)]; Paperno v Michigan Railway Engineering Co, 202 Mich 257 [168 NW 503 (1918)].”

It is clear from this language that a distinction was drawn as to whether death from a wrongful act was instantaneous, in which case the action lay under the "wrongful death” statute, or whether there was a period of survival, thus requiring that the action be maintained under the "survival act”. This distinction was crucial since the claims were mutually exclusive and the measure of damages was substantially different. Lincoln v Detroit & M R Co, 179 Mich 189; 146 NW 405 (1914); Crook v Eckhardt, 281 Mich 703; 275 NW 739 (1937).

The strict application of this temporal distinction not only spawned numerous suits over what "instantaneous death” meant, Olivier v Houghton County Street-Railway Co, 134 Mich 367; 96 NW 434 (1903); Nelson v Glover, 231 Mich 229; 203 NW 840 (1925); Ford v Maney’s Estate, supra; Janse v Haywood, 270 Mich 632; 259 NW 347 (1935); Crook v Eckhardt, supra; In re Beiersdorfer’s Estate, 297 Mich 592; 298 NW 294 (1941), but also created pleading problems where the "time of death” issue was close. Carbary v Detroit United Railway, 157 Mich 683; 122 NW 367 (1909); Anderson v Jersey Creamery Co, 278 Mich 396; 270 NW 725 (1936); Lucy v Dowd, 285 Mich 530; 281 NW 314 (1938).

Confusion in the application of these two statutes was ended when the Legislature, by the enactment of a new wrongful death act, 1939 PA 297, combined the two acts, requiring that all actions for injuries resulting in death be brought thereunder. 1939 PA 297 actually took the form of an amendment to the existing wrongful death act and provided for the repeal of any inconsistent provisions of the "survival act”. In pertinent part it read:

"An Act requiring compensation for causing death and injuries resulting in death by wrongful act * * *:

"Sec. 1. * * * [W]henever the death of a person or injuries resulting in death, shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall hereafter be brought only under this act.

"Sec. 2. Every such action shall be brought by, and in the names of, the personal representatives of such deceased person, and in every such action the court or jury may give such damages, as, the court or jury, shall deem fair and just, with reference to the pecuniary injury resulting from such death, to those persons who may be entitled to such damages when recovered and also damages for the reasonable medical, hospital, funeral and burial expenses for which the estate is liable and reasonable compensation for the pain and suffering, while conscious, undergone by such deceased person during the period intervening between the time of the inflicting of such injuries and his death: * * *

"Sec. 3. Insofar as the provisions thereof are inconsistent with the provisions of act number 38 of the public acts of 1848 as amended by this act, section 32 of chapter 12 of act number 314 of the public acts of 1915, being section 14040. of the compiled laws of 1929 is hereby repealed.”

After some initial difficulty in construing this new statute, it was made unmistakably clear by this Court in In re Olney’s Estate, 309 Mich 65; 14 NW2d 574 (1944), that the survival act was not repealed but was incorporated into the new death act to form a single ground of recovery in cases where tortious conduct caused death.

The language of Chief Justice North’s majority opinion in Olney is critical to full appreciation of the scope of the present wrongful death statute.³ He wrote:

"Act No. 297, Pub. Acts 1939 * * * does not repeal, but instead only amends, our so-called death act. * * * Nor does the 1939 act repeal our so-called survival statute * * * except in so far as [it] is ‘inconsistent’ with the 1939 act.[⁴] And we do not find [the survival act] at all inconsistent with any provision in the 1939 act, except that section 1 in the latter act provides: 'All actions for such death, or injuries resulting in death, shall hereafter be brought only under this act.’ [The survival statute] is still part of our statutory law * * *.

"Above we have stated that the 1939 act does not repeal the death act * * *. Instead, [the existing death act], which provided the statutory right of action in death cases, was literally reenacted, with the modifications about to be noted, in section 1 of [the 1939 act] which reads:

" 'Be it enacted by the senate and house of representatives of the State of Michigan, whenever the death of a person or injuries resulting in death, shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages, in respect thereof, then and in every such case, the person who, or the corporation which would have been liable, if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony. All actions for such death, or injuries resulting in death, shall hereafter be brought only under this act.’

"The italicized words in the above section disclose the only changes made by the 1939 reenactment. * * * [T]he obvious purpose of the 1939 act was to enable a person to bring his action under this statute regardless of whether there was instantaneous death or survival of the injured person, and to provide to what person or persons the damages recovered should be 'distributed’.” (Emphasis in original.) Olney, supra, pp 80-82.

See also Grimes v King, 311 Mich 399; 18 NW2d 870 (1945).

It cannot be doubted that causes of action continue to survive. MCL 600.2921; MSA 27A.2921 specifically states "[a]ll actions and claims survive death”. Those based on injuries resulting in non-instantaneous death must simply be brought under the present wrongful death act rather than under the survival act. We do not construe the 1939 wrongful death act as creating an entirely new statutory cause of action unknown at common law. That new cause of action was statutorily created in the pre-1939 wrongful death act and had been judicially interpreted to apply only to those cases where the wrongful act and the resulting death coincide. The 1939 wrongful death act re-enacted the old death act and joined it with a class of survival actions to form a single cause of action in the stead of two previously separate causes of action for injuries and death. Survival actions, which undoubtedly still exist, must now be brought under the provisions of the 1939 wrongful death act whenever non-instantaneous death results from the tortious conduct.

This dual nature of the 1939 statute was properly recognized by the United States Court of Appeals for the Second Circuit which interpreted the Michigan statute in Janes v Sackman Brothers Co, 177 F2d 928 (CA 2, 1949). In Janes, the federal court found that the action was premised on the survival act element of the wrongful death statute since the plaintiffs decedent did not die instantaneously after he was severely burned. The plaintiff was appointed administrator over four years after the death and brought a products liability action. The court found that action "survived by law” the decedent’s death and thus would benefit from the saving provision of MCL 609.18; MSA 27.610, the predecessor of MCL 600.5852; MSA 27A.5852, which now reads:

"If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action which survives by law may be commenced by or against the executor or administrator of the deceased person * * * at any time within 2 years after letters testamentary or letters of administration are granted * * *. But no executor or administrator shall bring an action under this provision unless he commences it within 3 years after the period of limitations has run.”

B

Prior to the 1939 amendment of the wrongful death act, there was little difficulty in assessing when a cause of action accrued and hence when the limitations period began to run. Under both the survival act and death act the focus was on the date of the wrongful act. In Lincoln v Detroit & M R Co, supra, 196, this Court reasoned that as to actions under either the death act or the survival act, "[b]oth are dependent on the injury”. A cause of action brought under the death act accrued at the date of the wrongful act, which of course was effectively the same as the date of death. Lincoln, supra. Whenever there was survival for a period after the wrongful act, the cause of action, if any, accrued at the time of the wrongful act. Ford v Maney’s Estate, supra. There was nothing inconsistent in the approach under either act. The focus has always been on the date of the wrong. Therefore, and because the 1939 amendment repealed only the inconsistencies between the formerly mutually exclusive causes of action, for purposes of determining the commencement of the running of the statute of limitations the focus remains on the date of the wrongful act, not on the date of death.

II

This understanding of the dual nature of the present wrongful death act, including judicial focus upon the date of the wrongful act and not the date of death, makes the resolution of the issues before us clear.

Plaintiffs cause of action is without question one rooted in the survival aspect of the wrongful death act. The mere fact that our legislative scheme requires that suits for tortious conduct resulting in death be filtered through the so-called "death act”, MCL 600.2922; MSA 27A.2922, does not change the character of such actions except to expand the elements of damage available. Mr. Hawkins had a fully vested cause of action, if at all, on or about April 29, 1975, the date of the alleged wrongful act. He lived until January of 1976. His cause of action, if any, having accrued at the date of the wrongful act, the applicable limitations period began to run from that date.

The litigants are in agreement that the limitations period applicable is the two-year provision of MCL 600.5805(4); MSA 27A.5805(4). Weiss v Bigman, 84 Mich App 487; 270 NW2d 5 (1978), lv den 405 Mich 820 (1979); Olijnyk v Harrison Community Hospital, Inc, 80 Mich App 366; 263 NW2d 33 (1977), lv den 402 Mich 922 (1978); Castle v Lockwood-MacDonald Hospital, 40 Mich App 597; 199 NW2d 252 (1972). We agree and expressly hold that in all actions brought under the wrongful death statute, the limitations period will be governed by the provision applicable to the liability theory of the underlying wrongful act. The Court applied this reasoning in Rhule v Armstrong, 384 Mich 709; 187 NW2d 223 (1971), where it found the three-year period "for injuries to persons and property” applicable to claims brought under MCL 600.2922; MSA 27A.2922 and based on ordinary negligence.

Additionally, we hold that actions brought pursuant to MCL 600.2922; MSA 27A.2922 accrue as provided by the statutory provisions governing the underlying liability theory and not at the date of death. In this case, since the action is based on medical malpractice, the claim accrued on or about April 29, 1975, the date of last treatment.

By this holding we overrule Coury v General Motors Corp, 376 Mich 248; 137 NW2d 134 (1965). The Coury holding that a "cause of action for a wrongful death and damages resulting therefrom accrues when that death occurs”, was based on language found in Lincoln v Detroit & M R Co, supra, a case discussing the nature of the wrongful death act prior to the 1939 amendment. Insofar as Coury failed to recognize that the wrongful death act before 1939 applied only to cases of instantaneous death and after 1939 applied as well to what once were separate survival actions, and in light of the majority opinion in In re Olney, supra, it cannot stand for the proposition that the post-1939 death act created a "new and special remedy accruing to those who suffer loss by the death”⁵ and thus accrues only at death.

Ill

Having found that the action brought by Mrs. Hawkins is a survival action which must be brought under the terms of MCL 600.2922; MSA 27A.2922, and which is governed by the limitations provisions applicable to medical malpractice, we must now determine whether her action is barred.

Mr. Hawkins’ cause of action accrued on or about April 29, 1975 and he had two years in which to bring suit. He died on January 27, 1976. That cause of action survived his death and was brought by Mrs. Hawkins on January 6, 1978. Absent any saving or tolling provision, the action would be untimely if brought anytime after April 29, 1977.

As indicated above, although the post-1939 death act encompasses a class of actions formerly brought under the survival act, we are not persuaded that the essential character of those actions has changed. Any time wrongful conduct results in non-instantaneous death, the claim prosecuted by an appropriate representative is a survival action enhanced by the broader measure of damages in the current death act. It survives by law the decedent’s death pursuant to MCL 600.2921; MSA 27A.2921. There is no reason to doubt, as recognized by the Janes court, that statutory references to actions surviving by law include those actions brought under MCL 600.2922; MSA 27A.2922 for non-instantaneous death resulting from wrongful conduct. Therefore, MCL 600.5852; MSA 27A.5852 operates to extend the time in which to bring such suits. That statute, quoted above, gives the fiduciary an additional two years from the date of issuance of letters testamentary in which to bring suit provided that, in any event, the fiduciary brings suit not more than three years after the limitations period has run.

The record does not disclose when Mrs. Hawkins was named executrix, but since she instituted this action within two years of her husband’s death and within three years of April 29, 1977, she did so within the provisions of this saving statute. She is entitled to maintain this action.

Our holding today runs contrary to that in Rhule v Armstrong, supra, and insofar as it does, we overrule Rhule. In Rhule, the Court incorrectly relied on the dissenting opinion of Justice Sharpe in In re Olney’s Estate, supra, as if it were the majority, thus concluding that the 1939 amendment to the death act created a new cause of action precluding the survival of any action. Chief Justice North’s majority opinion in Olney clearly held otherwise. We find the interpretation given to the post-1939 death act and its relationship to the saving provision of MCL 600.5852; MSA 27A.5852, as announced by the federal circuit court in Janes v Sackman Brothers Co, supra, to be correct.

To summarize, we hold that in this case the proper application of the pertinent statutes guarantees survival of the cause of action which accrued to the decedent in his lifetime, enlarges the elements of damage so as to include those authorized under the wrongful death act, preserves the original action unabated by the death of Mr. Hawkins and authorizes the executrix of his estate to pursue it to judgment.

We affirm, although for the different reasons discussed, that portion of the Court of Appeals opinion holding that the cause of action accrued on the date of last treatment; however, we remand to the circuit court because of the applicability of the saving provision of MCL 600.5852; MSA 27A.5852, an issue left unaddressed by the Court of Appeals.

Fitzgerald, C.J., and Williams, J., concurred with Ryan, J.

1 1978 PA 495 revised the language and renumbered the subsections of MCL 600.5805; MSA 27A.5805 but otherwise affected no substantive provisions applicable to the issues in this case.

2 At the time this cause of action arose, the rule of Dyke v Richard, 390 Mich 739; 213 NW2d 185 (1973), applied. Dyke entitled a plaintiff to a two-year extension on the limitations period from the time of discovery of malpractice. 1975 PA 142 has since reduced the extension to six months from the time of discovery or two years from last treatment, whichever is greater. The additional changes effected by this 1975 amendment did not affect provisions controlling the issues before us.

In Mrs. Hawkins’ case, discovery of the alleged malpractice unquestionably occurred no later than early May, 1975. This is essentially the same as the date of last treatment. As there is no difference in the outcome regardless of which date is used, we will assume, for ease of discussion, that discovery occurred at the date of last treatment, April 29, 1975.

3 Amendment of the wrongful death act by enactment of 1971 PA 65 did not affect any provision controlling the issues in this case.

4 In Baker v Slack, 319 Mich 703; 30 NW2d 403 (1948), it was decided that the repeal of inconsistencies went only to the measure of damages.

5 Coury v General Motors Corp, 376 Mich 248, 251; 137 NW2d 134 (1965), quoting from Ford v Maney’s Estate, 251 Mich 461, 464; 232 NW 393 (1930).