MCL 600.5838a(1) tells us when a claim based on the medical malpractice 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.
600.5838a(2) tells us that except as otherwise provided (in this subsection (2)), in order to determine the applicable statute of limitation, we look to section 5805 or sections 5851 to 5856 or within 6 months after discovery. In subsection(2), it also tells us that in any event, the claim cannot be commenced later than 6 years after the date of accrual unless 5851(7) or 5851(8) applies.
- 5805 relates to injuries to persons (not including med mal) or property
- 5851 relates to disabilities such as infancy or insanity
- 5852 relates to death
- 5853 relates to absence from state
- 5854 relates to inability to prosecute
- 5855 relates to fraudulent concealment of claim or identity of personal liable
- 5856 relates to tolling or repose of the limitations period
Importantly, 600.5838a(2) also tells us in its last sentence that the time periods in subsection (2) do NOT apply, and instead:
The time periods of subsection (3) apply, if discovery of the existence of the claim was prevented by the fraudulent conduct of the health care professional against whom the claim is made. See 5838a(2)(a).
Subsection (3) states that the plaintiff may commence the action at any time within the applicable period of 5805 or 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later.
Now, we go back to 5855 because that specifically relates to fraudulent concealment.
If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after discovery, although the action would otherwise be barred by the period of limitations.
Therefore, if there is fraudulent conduct preventing discovery of the existence of the claim, there is no six year cap and according to MCL 600.5855, the action may be commenced at any time within two years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations.
Wow, could they have made that more confusing! I hope I have cleared the path a bit.
This article was originally published on June 27, 2007. It has been revised and republished on May 21, 2014.