HB-5033, As Passed House, June 9, 2009
June 2, 2009, Introduced by Reps. Scripps and Meadows and referred to the Committee on Judiciary.
A bill to amend 1961 PA 236, entitled
"Revised judicature act of 1961,"
by amending sections 5838a and 5851 (MCL 600.5838a and 600.5851),
section 5838a as amended by 1993 PA 78 and section 5851 as amended
by 1993 PA 283.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 5838a. (1) For purposes of this act, a claim based on the
medical malpractice of a person or entity who is or who holds
himself or herself out to be a licensed health care professional,
licensed health facility or agency, or an employee or agent of a
licensed health facility or agency who is engaging in or otherwise
assisting in medical care and treatment, whether or not the
licensed health care professional, licensed health facility or
agency,
or their employee, or agent is engaged in the practice of
the health profession in a sole proprietorship, partnership,
professional corporation, or other business entity, accrues at the
time of the act or omission that is the basis for the claim of
medical malpractice, regardless of the time the plaintiff discovers
or otherwise has knowledge of the claim. As used in this
subsection:
(a) "Licensed health facility or agency" means a health
facility or agency licensed under article 17 of the public health
code,
Act No. 368 of the Public Acts of 1978, being sections
333.20101
to 333.22260 of the Michigan Compiled Laws 1978 PA 368,
MCL 333.20101 to 333.22260.
(b) "Licensed health care professional" means an individual
licensed or registered under article 15 of the public health code,
Act
No. 368 of the Public Acts of 1978, being sections 333.16101 to
333.18838
of the Michigan Compiled Laws 1978 PA 368, MCL 333.16101
to 333.18838, and engaged in the practice of his or her health
profession in a sole proprietorship, partnership, professional
corporation, or other business entity. However, licensed health
care professional does not include a sanitarian or a veterinarian.
(2) Except as otherwise provided in this subsection, an action
involving a claim based on medical malpractice may be commenced at
any time within the applicable period prescribed in section 5805 or
sections 5851 to 5856, or within 6 months after the plaintiff
discovers or should have discovered the existence of the claim,
whichever is later. However, except as otherwise provided in
section
5851(7) or (8) 5851(5) or
(6), the claim shall not be
commenced later than 6 years after the date of the act or omission
that is the basis for the claim. The burden of proving that the
plaintiff, as a result of physical discomfort, appearance,
condition, or otherwise, neither discovered nor should have
discovered the existence of the claim at least 6 months before the
expiration of the period otherwise applicable to the claim is on
the plaintiff. A medical malpractice action that is not commenced
within the time prescribed by this subsection is barred. This
subsection does not apply, and the plaintiff is subject to the
period of limitations set forth in subsection (3), under 1 of the
following circumstances:
(a)
If discovery Discovery of the existence of the claim was
prevented by the fraudulent conduct of the health care professional
against whom the claim is made or a named employee or agent of the
health care professional against whom the claim is made, or of the
health facility against whom the claim is made or a named employee
or agent of a health facility against whom the claim is made.
(b) There has been permanent loss of or damage to a
reproductive organ resulting in the inability to procreate.
(3) An action involving a claim based on medical malpractice
under circumstances described in subsection (2)(a) or (b) may be
commenced at any time within the applicable period prescribed in
section 5805 or sections 5851 to 5856, or within 6 months after the
plaintiff discovers or should have discovered the existence of the
claim, whichever is later. The burden of proving that the
plaintiff, as a result of physical discomfort, appearance,
condition or otherwise, neither discovered nor should have
discovered the existence of the claim at least 6 months before the
expiration of the period otherwise applicable to the claim is on
the plaintiff. A medical malpractice action that is not commenced
within the time prescribed by this subsection is barred.
Sec.
5851. (1) Except as otherwise provided in subsections (7)
and
(8) (5) and (6), if the person first entitled to make an entry
or
bring an action under this act is under less than 18 years of
age or insane at the time the claim accrues, the person or those
claiming
under the person shall have 1 year after the disability is
removed, through death or otherwise, to make the entry or bring the
action although the period of limitations has run. This section
does
not lessen shorten the time provided for in within which an
action may be commenced under section 5852.
(2)
The term insane as employed in this chapter means a
condition
of mental derangement such as to prevent the sufferer
from
comprehending rights he or she is otherwise bound to know and
is
not dependent on whether or not the person has been judicially
declared
to be insane.
(2) (3)
To be considered a disability under this section, the
infancy or insanity must exist at the time the claim accrues. If
the
disability comes into existence after the claim has accrued, a
court
shall not recognize the disability under this section for the
purpose
of modifying accrues, the period of limitations is not
modified by this section.
(3) (4)
A person shall not tack successive Successive
disabilities may not be tacked under this section. A court shall
recognize
only Only those disabilities that exist at the time the
claim first accrues and that disable the person to whom the claim
first
accrues for the purpose of modifying modify the period of
limitations under this section.
(4) (5)
A court shall recognize If both of the disabilities of
infancy
or and insanity that disable the person to whom the
a claim
first accrues at the time the claim first accrues, both
disabilities
apply under this section. A court
shall count the year
A
period of grace provided in this
section from begins on the
termination of the last disability to the person to whom the claim
originally accrued that has continued from the time the claim
accrued, whether this disability terminates because of the death of
the person disabled or for some other reason.
(6)
With respect to a claim accruing before the effective date
of
the age of majority act of 1971, Act No. 79 of the Public Acts
of
1971, being sections 722.51 to 722.55 of the Michigan Compiled
Laws,
the disability of infancy is removed as of the effective date
of
Act No. 79 of the Public Acts of 1971, as to persons who were at
least
18 years of age but less than 21 years of age on January 1,
1972,
and is removed as of the eighteenth birthday of a person who
was
under 18 years of age on January
1, 1972.
(5) (7)
Except as otherwise provided in
subsection (8) (6),
if, at the time a claim alleging medical malpractice accrues to a
person under section 5838a the person has not reached his or her
eighth birthday, a person shall not bring an action based on the
claim unless the action is commenced on or before the person's
tenth birthday or within the period of limitations set forth in
section 5838a, whichever is later. If, at the time a claim alleging
medical malpractice accrues to a person under section 5838a, the
person has reached his or her eighth birthday, he or she is subject
to the period of limitations set forth in section 5838a.
(6) (8)
If, at the time a claim alleging
medical malpractice
accrues to a person under section 5838a, the person has not reached
his or her thirteenth birthday and if the claim involves an injury
to the person's reproductive system, a person shall not bring an
action based on the claim unless the action is commenced on or
before the person's fifteenth birthday or within the period of
limitations set forth in section 5838a, whichever is later. If, at
the time a claim alleging medical malpractice accrues to a person
under section 5838a, the person has reached his or her thirteenth
birthday and the claim involves an injury to the person's
reproductive system, he or she is subject to the period of
limitations set forth in section 5838a.
(7) (9)
If a person was serving a term of
imprisonment on the
effective
date of the 1993 amendatory act that added this
subsection
April 1, 1994, and that person has a cause of action to
which the disability of imprisonment would have been applicable
under the former provisions of this section, an entry may be made
or an action may be brought under this act for that cause of action
within
1 year after the effective date of the 1993 amendatory act
that
added this subsection April
1, 1994, or within any other
applicable period of limitation provided by law.
(8) (10)
If a person died or was released
from imprisonment at
any
time within the period of 1 year preceding the effective date
of
the 1993 amendatory act that added this subsection April 1,
1994, and that person had a cause of action to which the disability
of imprisonment would have been applicable under the former
provisions of this section on the date of his or her death or
release from imprisonment, an entry may be made or an action may be
brought under this act for that cause of action within 1 year after
the date of his or her death or release from imprisonment, or
within any other applicable period of limitation provided by law.
(9) (11)
As used in this section: ,
"release
(a) "Insane" means suffering under a condition of mental
derangement that prevents the sufferer from comprehending rights he
or she is otherwise bound to know, regardless of whether the
individual has been judicially declared to be insane.
(b) "Release from imprisonment" means either of the following:
(i) (a)
A final release or discharge from
imprisonment in a
county jail.
(ii) (b)
Release on parole or a final
release or discharge from
imprisonment in a state or federal correctional facility.