Wrongful death; Medical malpractice; Whether claims sounded in negligence; Bryant v Oakpointe Villa Nursing Ctr, Inc; Meyers v Rieck; Whether medical malpractice claims were timely; MCL 600.5805(8); Notice of intent (NOI); MCL 600.2912b(1); Hubbard v Stier; Tolling during the COVID-19 pandemic; Administrative Order (AO) No. 2020-3; AO 2020-18; Carter v DTN Mgmt Co; MCL 600.5852 (the wrongful-death saving provision); Estate of Christopher P Eversole; Notice-tolling provision; Waltz v Wyse; Personal representative (PR)

Holding that plaintiff-PR’s claims sounded in medical malpractice, not ordinary negligence, and that they were time-barred, the court affirmed summary disposition for defendants. After she was discharged from the hospital, plaintiff’s decedent was transferred to defendant-The Rivers, where defendant-Dr. Johnson was her attending physician. Her condition declined and she was transferred back to the hospital, where she died on 4/28/19. The court first concluded that the particular factual setting that gave rise to plaintiff’s claims made it clear that they implicated “medical judgment. Indeed, the crux of plaintiff’s claims is that if defendants had provided the decedent with proper care, nutrition, and treatment, she would not have developed additional decubitus ulcers and died of sepsis. These allegations involve questions of medical knowledge and are not issues of ordinary negligence that can be judged by the common knowledge and experience of a jury.” The court determined that the “reasonableness of defendants’ actions can only be evaluated when considering whether providers with the same experience would have acted differently given the decedent’s medical history and physical condition.” It added that the fact that she “ultimately died does not enable a layperson to simply infer the decedent would not have died if she was provided proper, or different, care by defendants.” Plaintiff had to comply with the procedural requirements of a medical malpractice claim, including “timely filing her lawsuit under authority relating to” such claims. She filed the complaint on 1/21/22, which would be outside even the extended limitations period under the wrongful-death saving provision. However, in light of the COVID-19 pandemic, the question became “whether the wrongful-death saving provision is a deadline applicable to the commencement of a civil case as contemplated by AO 2020-3.” The court concluded the “provision creates a deadline to file suit,” and pursuant to Hubbard, “‘AO 2020-3, by its terms, applies to deadlines[.]’” But even with the deadline extension under AO 2020-3 and AO 2020-18, plaintiff had to file suit by 11/11/21. She asserted the “suit was timely filed because she complied with MCL 600.2912b(1) and sent defendants the NOI 182 days before she filed” it. But under Waltz, her “filing of the NOI did not toll MCL 600.5852’s deadline.”