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### STATE OF MICHIGAN

COURT OF APPEALS

PATRICIA T. ESCH persona l representative of ESTATE OF STEPHEN STILES,

Plaintiff-Appellant, UNPUBLISHED June 13, 2017

v No. 332933 Kent Circuit Court NASIM YACOB, MD, JIM MCFADDEN, RN, MINERVA BOOKER, RN, ESTHER WEST, RN, CLAIRE EVERSON, LPN, DORIS LEMMEN, LPN, CORIZON HEALTH INC., DAVID SOVA, DO, and WEST MICHIGAN URGENT CARE INC., LC No. 16-000859-NH

Defendants-Appellees.

Before: G ADOLA , P.J., and T ALBOT , C.J., and G LEICHER , J.

P ER C URIAM

. The question before us is whether the plaintiff estate lost th e right to bring a state court medical malpractice action when a federal district court denied its motion to amend its § 1983 complaint to add a state-law medical malpractice claim. Defend ants vigorously opposed the addition of a state-law malpractice claim, contending that it f undamentally differed from the § 1983 action and would “confuse” the jury. In state court, de fendants made a 180-degree turn, arguing that plaintiff’s med mal complaint should have been fil ed in a joint action in the federal court given the similarity of the two claims. The state court accepted this argument and summarily dismissed the state court action. We reverse and rem and for continuation of the proceedings.

I. BACKGROUND

At approximately 4:30 a.m. on May 31, 2011, Stephen Stiles was booked into the Kent County Jail. Stiles informed the deputy that he had a seizure disorder and that the police had confiscated his antiseizure med ication, Dilantin, during his arrest. During medical intake, Stiles advised Nurse Jim McFadden that he suffered from epilepsy and g rand mal seizures, required medication to control the condition, and had suffered a seizure two weeks earlier. Stiles further reported that he had consumed alcohol that evening. Despite re ceiving this information,-2- McFadden did nothing to prioritize review of Stiles’s medical c hart. He placed it in a pile of other reports, which sat for sev eral hours wit hout being review ed by medical personnel.

The jail passed out medication to inmates at 8:00 a.m. Howeve r, Stiles did not receive a dose of Dilantin at that time because Nurse Esther West did not contact Stiles’s pharmacy until 10:42 a.m. to verify his prescription. West did not thereafter contact the supervising physician for authorization to immediately provide Dilantin to Stiles. B etween 2 and 3 p.m., Stiles advised a deputy and LPN Doris Lemmen that he needed his medication and was concerned he may suffer a seizure. At6:45 p.m., LPN Claire Everson noticed the medication verification in Stiles’s file and advised Dr. David Sova. Sova authorized provision of the medication to Stiles. Finally, at 8:10 p.m., Everson and a deputy made rounds to pass out medi cation to prisoners. They went to Stiles’s cell and found him “l ying on the top bunk of his be d, unconscious and unresponsive.” Stiles had suffered a grand mal seizure and died.

Mary Owens secured court assignment as the personal representa tive of Stiles’s estate. On May 2, 2013, Owens filed suit in federal district court. Inan amended complaint, Owens named as defendants Dr. Nasim Yacob, Dr. Sova, McFadden, Nurse Minerva Booker, Everson, and Corizon Health, Inc. Owens elucidated the facts learned du ring discovery regarding who interacted with Stiles and whe n, what they knew about Stiles’s medical needs, and the timeline of verifying and attempting to provide Stiles’s medication. Ow ens raised claims of deliberate indifference to Stiles’s medical needs, gross negligence, and f ailure to supervise and train claims under 42 USC 1983.

On December 10, 2014, Patricia Esch replaced Owens as personal representative. On February 20, 2015, Esch filed a second amended complaint, addin g as defendants Lemmen and West and alleging that Stiles “was denied reasonable and adequa te medical care” while in the Kent County Jail, resulting in his death. Specifically, plaint iff noted that the information shared with McFadden and included in Stiles’s chart should have raised a red flag with the jail’s medical staff. It should have been obvious to the medical defe ndants, plaintiff contended, that Stiles had a severe medical condition and needed immediate prov ision of his antiseizure medication. Plaintiff accused th e various medical professional s stationed in the jail of acting in willful and wanton disregard of Stiles’s constitutional rights and with deliberate indifference toward Stiles’s right to receive basic and adequate medical car e. The conduct of these individuals was the proximate cause of Stiles’s death, plaintif f contended.

Plaintiff subsequently sought leave to amend to add a state-la w medical malpractice claim and to add West Michigan Ur gent Care (WMUC) as a party de fendant. Plaintiff asserted that during discovery, she iden tified and deposed several nurse s and other medical professionals employed by Corizon who worked at the jail. Only after deposin g nurses West and Lemmen did plaintiff believe she “had a viable medical malpractice claim.” Plaintiff indicated that she filed a notice of intent to file a medical malpractice claim upon defen dants, as required by MCL 600.2912(b), on December 15, 2014. She then waited the requisi te 182 days to seek leave to amend the complaint. Amendment would not cause undue delay, pl aintiff insisted, because all the individuals named in the proposed amendment had already bee n deposed. Moreover, “Plaintiff’s medical malpractice claims emerge from the same nu cleus of facts surrounding Plaintiff’s claims against the c urrent medical personnel Defend ants.” As such, “it only makes sense to litigate these claims in a single action.” “Likewise, ” plaintiff continued, “the facts-3- supporting Plaintiff’s basis for adding the medical malpractice claim against the medical personnel Defendants stem from the same incident.”

Defendants challenged plaintiff’s attempt to add a medical mal practice count. First, defendants attacked the timeliness of the request. The discove ry period was about to close. And plaintiff “identif[ied] the possibility of adding a medical mal practice claim a year ago after taking the depositions of” West and Lemmen. Plaintiff then wai ted four months to file a notice of intent and an addit ional two months to f ile a motion to amen d the complaint. Defendants raised complaints of undue delay and failure to cure pleading d eficiencies through previous amendments. Defendants further contended that amendment would be futile because the statute of limitations had run on the medical malpractice claim.

Of import to this appeal, defe ndants asserted t hat they would be prejudiced by the amendment in the following manner:

If plaintiff is permitted to add a medical malpractice claim a gainst Defendants at this late stage, su bstantial discovery will need to be revisited, and there will be significant delay. Medical malpractice is an entirely different claim. The parties’ current retained experts will need to re-review th e case and give revised opinions. Furthermore, the parties will need to identi fy and retain brand new standard of care experts. Some, if not all, expert deposit ions will have to be completed if the Court decides this Motion. Additionally, the parties will need to retake fact witness depositions. . . . The case essentially would be starting over from the very beginning in many ways. [Underlining in origin al, italics added.]

Defendants further contended that trying the federal § 1983 cla im along with the state-law medical malpractice claim “would confuse the jury,” because the federal claim “requires a subjective standard that requires considering a Defendant’s men tal state (as with deliberate indifference and gross negligence claims)” while the state-law medical malpractice claim is judged by an objective standard. D efendants concluded:

For one jury to balance these three contradictory issues, make separate findings of fact and decisions regarding state of mind for all three claims , and then render monetary values for each separately is a task of Herculean proportions. No jury is going to be able to competentl y sort out these competing standards, and then sort out monetary compensation for each. . . .

The potential for a jury to misapply the malpractice standard to the civil rights claim cannot be emphasized enough. . . . [A]sking a jury to resolve similar claims under two different stand ards would result in lengthier jury instructions, jury confusion, and inconvenience to the parties. By denying t he motion to amend, the potential for jury confusion and complication and ex tension of discovery will be eliminated, and Plaintiff can file the malpractice action in a more proper jurisdiction. [Emphasis added.]

The federal district court de nied plaintiff’s motion, ruling:-4- This case has been pending well over two years, during which t ime Plaintiff has continued to devel op her claims, modify her plead ings, and add and delete named Defendants. These issues were addressed with Plai ntiff at a May 22, 2014 Pre-Motion Conference and have continued to be a sourc e of concern to the Court, as set forth on the record at a June 16, 2015 status conference. The Court has accommodated Plainti ff’s continuing revisions well be yond court-set deadlines for amended pleadings despite Defendant’s opposition . . . . On May 21, 2015, the Court denied Defendants’ objection to an order of the Magistrate Judge permitting Plaintiff’s [sic] to amend her complaint to ad d Esther West, R.N., and Doris “Kim” Lemmen, L.P .N., as defendants in this law suit . . . . Despite extensive discussion of the case status and Plaintiff’ s claims as to specific Defendants at a June 16, 2015 status conference, Plain tiff failed to advise the Court of additional anticipated amendments to her claims. Plaintiff states that it was not until after the depositions of nurse West and nurse Lemmen that it appeared to Plaintiff that she had a viable medical malpractice claim and that she had not been dilatory in pursuing her claims, but the Court fin ds to the contrary. Defendants point out that Plain tiff’s assertions fail to accoun t for a delay of some six months in pursuing her malpractice claim following the nurs e depositions in August 2014. Plaintiff also states in support of her instant motion that “this matter is currently only in the midst of discovery” and adding the new ma lpractice claim will not cause any undue delay . . . . However, at the June 20 15 status conference, Plaintiff’s counsel represented that fact discovery was essenti ally done and Plaintiff was ready to proceed forward and with trial. Based o n the parties’ representations at the status c onference, the Court set new dea dlines to complete expert discovery and to timely proceed with dispositive motions and trial. The parties completed facilitation on August 17, 2015, and the case did not settle. Again, as Defendants point out, to add a medica l malpractice claim at this late date would require that substantial di scovery be revisited, would delay proceeding with dispositive motions and trial, and unduly prejudice Defendants. [Emphasis added.] Plaintiff subsequently filed the current action in the Kent Ci rcuit Court on January 14, 2016. She alleged negligence claims (actually medical malpract ice) claims against Dr. Yacob, Dr. Sova, McFadden, Booker, West, Everson, Lemmen, Corizon Heal th, and WMUC. Plaintiff provided detailed accounts of eac h defendant’s interaction with plaintiff, described the applicable standards of care, and alleged facts amounting to breaches of t he applicable standard. The theme of the complaint was that Stile s provided sufficient informatio n regarding his medical needs such that defendants should have appreciated the severity of his con dition and his immediate need for life-sustaining antiseizure medi cation. Yet defendants treated Stiles as any other prisoner and ignored his medical needs for s everal hours. Plaintiff alleged that because of this delay Stiles suffered a grand mal seizure and died.

In lieu of an answer, defendants sought summary disposition pu rsuant to MCR 2.116(C)(6) and (7). Under subrule (6), defendants contended t hat summary disposition was appropriate because another ac tion was pending involving the sa me parties in federal court. That-5- the parties in the state and federal actions were not identical (given the naming of WMUC) “was of no consequence,” defendants insisted, because the plaintiff and the issues were the same. In relation to the issues raised, defendants relied upon JD Candler Roofing Co, Inc v Dickson , 149 Mich App 593; 386 NW2d 605 (1985), for the proposition that a s uccessive case must be dismissed when “a similar case was pending” in another court, a nd Chapple v Nat’l Hardwood Co , 234 Mich 296, 298; 207 NW 888 (1926), to support that a succe ssive action may not be maintained when “the same matters are involved in all the cases .” Finally, defendants cited an unpublished Court of Appeals opinion supporting dismissal under (C)(6) “where the plaintiff failed to assert a claim in a prior suit.” Defendants contende d, “The parties and the claims are substantially the same in this case as those in the f ederal lawsuit.” (Emphasis adde d.)

In relation to subrule (7), defendants noted that a plaintiff must bring a medical malpractice claim within two years of the claim’s accrual or wi thin two years of a personal representative receiving letter s of authority, but only up to three years after the claim’s original statute of limitations had run. D efendants insisted that the s uccessor personal representative did not get an additional extension to file the action.

Plaintiff retorted that the federal § 1983 deliberate indiffer ence claim was “totally different” than the state-law medical malpractice action. She argued that the federal district court implicitly recognized that the two actions were completel y different when it denied her motion to amend the complaint to add a med mal action. Specifi cally, the court found that the additional claim would require “ ‘substantial discovery’ and wo uld delay the federal proceedings.” Plaintiff further noted that a med mal claim “in volves questions of reasonableness of the conduct of a defendant that lie beyond the common knowle dge and experience of lay jurors,” i.e. the professional standard of care expected of var ious medical providers. To prove a § 1983 claim based on deprivation of medical treatment, a plain tiff must show “acts or omissions sufficiently harmful to evidence deliberate indifference to ser ious medical needs.” A lay juror can determine this as a medical need is deemed “serious if it s o obvious that even a layperson would recognize the necessity o f medical attention.” A jury ca n also determine whether the defendants exhibited “wanton di sregard” and unreasonable delay. Moreover, the state claim is judged on an objective standard, while the federal is a subject ive intent matter. Placing both matters before the same jury would have led to confusion. Plai ntiff also emphasized that the dangers of allowing two actions to proceed, such as having an i ssue become moot based on res judicata, did not exist in this case because the federal court had already refused to take jurisdiction and resolve the m edical malpractice claim.

Plaintiff asserted that she had filed the medical malpractice action within the statutory limitations period as well. Esch was appointed personal repres entative on December 10, 2014 and had until December 10, 2016 to file suit under the wrongful death saving statute.

At the motion hearing, defense counsel asserted, “There has be en action pending in federal court since 2013 regarding the same incident, the same operative facts , and nearly identical parties.” (Emphasis added.) She continued, “The fed eral action is under 42 USC 1983 alleging a civil right s violation based on alleged deliberate indifferen ce to serious medical needs, and this being a medical malpractice case, the issues are very simila r, although the standards, the legal standards are different. ” (Emphasis added.) The court inquired whether defendants’ conflicting arguments in federal court precluded their current claims, but counsel did not answer-6- the question. Instead, she iterated that “[t]he bigger issue i n the federal case” was that plaintiff waited so long to attempt to bring the medical malpractice clai m and discovery was almost complete. Counsel then segued into the statute of limitations argument for dismissal.

Plaintiff replied that she had not improperly delayed in raisi ng the med mal claim. The delay in attempting to raise the claim was caused by defendants ’ failure to “divulge the identities of nurses Esther West and Doris Lemmen” until after the two-yea r medical malpractice statute of limitations had run. In that timeframe, the estate also had to secure a replacement personal representative. Plaintiff further retorted:

[A]s you pointed out during sister counsel’s argument, the def endants have unclean hands here because they have made the exact opposi te arguments in opposing our motion to amend the complaint in the Western Distr ict of Michigan. They should not now be heard to argue that plaintiff can’t file in state court because of the pending 1983 action is an identical claim. Ther e they said they’re completely different claims, and that is in fact the case, and that was acknowledged by the Western district. The Court held there tha t . . . “To add a medical malpractice claim at thi s late date would require that substantial discovery be revisited, would delay proceeding . . . with dispo sitive motions in trial, and would unduly prejudice defendants.” . . . And if th e med mal [and] the 1983 claims were substantially the same cause of action or had substantially the same underlying operative facts that could not have been the ba sis for the Western District’s ruling. The Western District adopted the argument o f the defendants to say that these are totally different claims, and yet now that w e’re here in what they termed in their opposition to our motion to amend in the m ore proper for[u]m, now they’re talking [taking?] the proposition that no, they are in fact the same claim, and we should be precluded under c(6) [sic].

Plaintiff then contended that the federal and state-law actions required “[t]otally different proofs,” making separate actions i n separate courts appropriate

. Defense counsel responded to plai ntiff’s claim that defendants belatedly produced West and Lemmen. The federal court found that plaintiff failed to a ccount for the six-month delay following the deposition of these witnesses before filing a mot ion to amend. In relation to the claim that defendants should be precluded from arguing that the state and federal actions were the same, counsel asserted:

And the claim that is brought in this case is different from the claim in the federal case in that for discovery purposes things are different, but that doesn’t mean that all claims should not be brought in one case at one time so things can be efficient and the parties not prejudiced by exc essive time and attorney fees and involvements in two different lawsuits.

I’d also like to point out that the parties in the federal cas e all have multiple expert witnesses who are already retained and have giv en significant opinions, so there is a lot of similarity in the two cases. Bu t really what it comes down to under (C)(6) is that the operative facts are the same, and it’s-7- substantially the same cause of action. It’s just a different l abel. It’s a State cause of action versus a fede ral cause of action. That is the only difference. [Emphasis added.]

The circuit court ultimately dismissed plaintiff’s medical mal practice action pursuant to MCR 2.116(C)(6). In resolving the motion, the court noted that“the primary question is not whether [the two acti ons] involve the same theories, but whethe r the ‘[r]esolution of either action will require examination of the s ame operative facts.’ ” The c ourt ruled:

In this case, resolution of Plaintiff’s medical malpractice cl aims will require examination of the same operative facts as those requir ed for resolution of the 1983 claims in the federal case. This is evidenced by the fact that the factual allegations are essentially identical in both the Complaint in this case and in the Second Amended Complaint in the federal case. Additionally, Pl aintiff’s own Motion for Leave to Amend in the federal case states that both the medical malpractice claims and the 1983 claims “stem from the same inci dent” and “arise from the same common nucleus of facts.” Since both the medical malpractice claims and the 1983 claims will require examination of the same operative facts, they do constitute the “same claims” for purposes of MCR 2.116( C)(6).

The circuit court also rejected plaintiff’s interpretation of the federal court’s order denying the motion to a mend the complaint:

Plaintiff argues that the District Court’s Order denying the M otion for Leave to Amend implies that the medical malpractice claims cann ot be based on the same operative facts as the 1983 claims. The District Cour t’s Order states, in relevant part, “to add a medical malpractice claim at this late date would require that substantial discovery be re visited, would delay proceeding with dispositive motions and trial, and unduly prej udice Defendants.” Plaintiff maintains that the District Court’s statement that substantial discovery would nee d to be revisited shows that the claims require separate factual developments. H owever, while medical malpractice and deliberate indifference to serious medi cal needs have different legalstandards, the factual basis for allof the claims at issue is the sequence of events prior to Mr. Stiles’s death. Therefore, eve n though additional depositions would almost surely be required in regards to the s tandard of care applicable to each Defendant, the resolution of all the claims still requires examination of the same operative facts. [Emphasis in original .]

The circuit court also rejected plaintiff’s claim that defendants should be barred from raising contradictory arguments from those raised in the federa l court. And the court accused plaintiff of raising conflicting arguments . Ultimately, the co urt concluded:

Here, as explained previously, the claims in this case and tho se in the federal case are not separate and distinct because they are all based on the same sequence of events and operative facts, namely, Defendants’ car e of Mr. Stiles prior to his death. Additionally, the District Court’s decisio n to deny the Motion for Leave to Amend was not based on Defendants’ arguments regar ding jury-8- confusion and “a more proper jurisdiction,” i.e., the District Court declining to exercise supplemental jurisdiction. The District Court’s Order makes it abundantly clear that it denied the Motion for Leave to Amend d ue solely to Plaintiff’s dilatory actions i n raising the medical malpractice claims.

Given the circuit court’s re solution on (C)(6) grounds, it did not consider defendants’ request for summary disposition based on the expiration of the statute of limitations.

II. SUMMARY DISPOSITION BASED ON PENDING FEDERAL CASE

Plaintiff challenges the circuit court’s dismissal of her acti on based on the pending federal case. We review de novo a circuit court’s summary dism issal of a plaintiff’s action under MCR 2.116(C)(6). Fast Air, Inc v Knight , 235 Mich App 541, 543; 599 NW2d 489 (1999). MCR 2.116(C)(6) provides for the summary dismissal of an action if “[a]nother action has been initiated between the same parties involving the same claim.” “The court rule is a codification of the former plea of abatement by prior action. Abatement protec ts parties from harassment of new suits filed by the same plaintiffs involving the same quest ions as those in pending litigation.” Ross v Onyx Oil & Gas Corp , 128 Mich App 660, 666; 341 NW2d 783 (1983) (citations omitted). “If this were not so[,] repeated suits in volving useless expenditures of money and energy could be daily launched by a litigious plaintiff inv olving one and the same matter.” Chapple v Nat’l Hardwood Co , 234 Mich 296, 298; 207 NW 888 (1926).

A. JUDICIAL ESTOPPEL

Defendants are judicially estopped from arguing in support of its summary disposition motion the similarity of the federal and state claims in this c ase when they previously went to great lengths to describe the two actions as completely differe nt. Judicial estoppel precludes a party “from maintaining a position inconsistent with one he had asserted under oath in an earlier judicial proceeding.” Paschke v Retool Indus , 445 Mich 502, 509; 519 NW2d 441 (1994). The doctrine is “[s]ometimes describe d as the doctrine against the assertion of inconsistent positions” and is “used by the courts in impeding those litigants who woul d otherwise play ‘fast and loose’ with the legal system.” Id

. Judicial estoppel . . . is intended to protect the integrity of the judicial process. . . . The essential function of judici al estoppel is to prevent inten tional inconsistency; the object of the rule is to protect the judiciary, as an insti tution, from the perversion of judicial machinery. . . . Judicial estoppel addr esses the incongruity of allowing a party to assert a position in one tribunal and th e opposite in another tribunal. If the second tribunal adopted the party’s inconsist ent position, then at least one court has probably been misled. [ Edwards v Aetna Life Ins Co , 690 F2d 595, 598-599 (CA 6, 1982).]

Michigan courts have adopted “ the ‘prior success’ model of jud icial estoppel.” “Under this doctrine, a party who has successfully and unequivocally asserted a position in a prior proceeding is estopped from asserting an inconsistent position in a subsequent proceeding.” Paschke , 445 Mich at 509-510 (emphasis in original). In order to supp ort estoppel, “there must be some indication that the cour t in the earlier proceeding acc epted that party’s position as true.”-9- Id . at 510. “The prior success model, however, does not mean tha t the party against whom the judicial estoppel doctrine is to be invoked must have prevailed on the merits.” Spohn v Van Dyke Pub Sch , 296 Mich App 470, 480; 822 NW2d 239 (2012) (quotation marks and citation omitted).

In response to plaintiff’s moti on to add a med mal claim to th e federal complaint, defendants specifically and repeatedly argued that the federal and state claims were totally different and that trying the federal and state claims together “would confuse the jury.” Defendants emphasized, “Plaintiff can file the malpractice acti on in a more proper jurisdiction.” Although the federal district cou rt did not specifically indica te that the federal and state claims were so different that the stat e-law claim should be dismissed, plaintiff accurately notes that this finding is implied. The court reasoned, “as Defendants point o ut, to add a medical malpractice claim at this late date would require that substantial discover y be revisited, would delay proceeding with dispositive motions, and unduly prejudice Defen dants.”

Plaintiff took defendants’ advice and “file[d] the malpractice action in a more proper jurisdiction.” But defendants completely changed course and ar gued for the dismissal of the state action under MCR 2.116(C)(6) because the federal and stat e claims were “substantially the same,” were based on “the same incident, the same operative fac ts,” and involved “very similar” issues, although “the legal stand ards are different.” Rather than promoting the differences between the two actions as they h ad done in federal court, defe ndants contended, “it’s substantially the same cause of action. It’s just a different label. It’s a State cause of action versus a federal cause of action. That is the only difference. ” Defendants changed positions after successfully arguing for the federal court’s denial of th e motion to add a state-law med mal claim. Defendants are thereby estopped from arguing the similarity of the federal and state claims.

B. SUMMARY DISPOSITION INAPPROPRIATE

In any event, we conclude that the circuit court fundamentally erred in dismissing plaintiff’s state-law medical m alpractice action. The circuit court relied on JD Candler Roofing Co , 149 Mich App 593, in making its decision. According to JD Candler , 149 Mich App at 598, the court rule “does not require that all the parties and all t he issues be identical.” 1 When considering whether two suits involve the same claims, the cour t must consider whether the actions are “ ‘based on the same or substantially the same caus e of action.’ ” Id ., quoting Ross
, 128 Mich App at 666. In JD Candler , 149 Mich App at 600-601 (emphasis added), summary disposition of a second suit was proper because “the factual and legal issues to be litigated” in both actions were “the same.” “[T]he same relief must be sough t” in both actions to warrant summary dismissal of the second suit, as well. Ross , 123 Mich App at 666.

Because JD Candler , and the Ross case on which it relies, were decided before November 1, 1990, they are not binding on this Court. MCR 7.21 5(J)(1). Their definition of the

1 Accordingly, plaintiff’s claim that summary disposition based on (C)(6) was inappropriate as to WMUC as it was not a defendant i n the federal action is withoutmerit.-10- phrase “the same claim” in MCR 2.116(C)(6) also does not compor t with Michigan Supreme Court precedent defining the word “the.” In Robison v Detroit , 462 Mich 439, 461; 613 NW2d 307 (2000), quoting Hagerman v Gencorp Auto , 457 Mich 720, 753-754; 579 NW2d 347 (1998), the Court held that “the” is a “ ‘ “definite article” . . . as opposed to the indefinite or generalizing force of the indefinite article a or an[.]’ ” Using this defin ition to interpret the phrase “the proximate cause” in MCL 691.1407(2)(c) of the governmental immu nity act, the Court reasoned: “Further, recognizing that ‘the’ i s a definite article, and ‘cause’ is a singular noun, it is clear that the phrase ‘the proximate cause’ contemplates one cause.” Robinson , 462 Mich at 462 (emphasis in original). According to this precedent, the phras e “the same claim” must be read narrowly as the one and only same claim. To merit dismissal un der MCR 2.116(C)(6), the claim in the pending and current actions must actually be the same an d not merely “substantially the same.”

When the phrase “the same claim” is properly interpreted, it b ecomes clear that the circuit court erred in summar ily dismissing plaintiff’s medical malpractice action. Medical malpractice is not “ the same claim” as § 1983 deliberate indifference; they are legall y distinct. As described by the Court of App eals for the Sixth Circuit:

An inmate may bring a § 1983 claim under the Eighth Amendment o nly where he can show that a state official acted with “deliberate indiffere nce” to his “medical needs.” “Deliberate indifference” requires more than mere mist reatment or negligence; it requires the plaintiff to show that the injury w as “objectively” serious and that the defendant “ subjectively” ignored the inmat e’s medical needs. [ Gibson v Moskowitz , 523 F3d 657, 661-662 (CA 6, 2008) (citations omitted).]

To establish a medical malprac tice claim in Michigan, however,

a plaintiff must establish four e lements: (1) the appropriate s tandard of care governing the defendant’s conduct at the time of the purported negligence, (2) that the defendant breached that standard of care, (3) that the plaintiff was injured, and (4) that the plaintiff’s injuries were the proximate result of the defendant’s breach of the applicable standard of care. These common-law el ements have been codified in MCL 600.2912a, which re quires a plaintiff alleging medical malpractice to show that

the defendant, if a specialist, f ailed to provide the recognize d standard of practice or care w ithin that specialty as reasonabl y applied in light of the facilities available in the community o r other facilities reasonably available under the circumstances, and as a proximate result of defendant failing to provide that standard, the plaintiff suffered an injury. [ Craig v Oakwood Hosp , 471 Mich 67, 86; 684 NW2d 296 (2004).]

The United States Supreme Court has recognized the difference between medical malpractice and constitutional challenges to the adequacy of me dical treatment while incarcerated:-11- [I]n the medical context, an in advertent failure to provide ad equate medical care cannot be said to constitute “an unnecessary and w anton infliction of pain” or to be “repugna nt to the conscience of mankind.” Thus, a complaint that a physician has been negligent in diagnosing or treating a medica l condition does not state a valid claim of medical mistreatment under the Eighth Amendment. Medical malpractice does not bec ome a constitutional violation merely because the victim is a prisoner. In order to state a cognizable claim , a prisoner must allege acts or omissions sufficiently harmful to evidence delib erate indifference to serious medical needs. It is only such indifference that can of fend “evolving standards of decency” in violation of the Eighth Amendment. [ Estelle v Gamble

, 429 US 97, 105-106; 97 S Ct 285; 50 L Ed 2d 251 (1976).]

The elements of medical malpractice and § 1983 deliberate indi fference do not correspond. Accordingly, they are not “ the same claim” and summary disposition was inappropriate.

III. STATUTE OF LIMITATIONS

Defendants’ alternate claim, that summary disposition was appr opriate based on the statute of limitations, i s also without merit.

Summary disposition under MCR 2.116(C)(7) is appropriate when the undisputed f acts establish that the plaint iff’s claim is barred under the applicable statute of limitations. Generally, the burden is on the defendant who relies on a statu te of limitations defense to prove facts that bring the case within the statute. . . . Although generally not required to do so, a par ty moving for summary disposition under MCR 2.116(C)(7) may support the motion with affidavits, depositions, admissions, or other admissible documentary evidence, which the reviewing cour t must consider. . . . If there is no factual dispute, whether a plaintiff’s claim is barred unde r the applicable statute of lim itations is a matter of law for the court to determine. . . .

In reviewing a motion under subrule (C)(7), the circuit court “ must accept the nonmoving party’s well-pleaded all egations as true and construe the allegations in the nonmovant’s favor. Diehl v Danuloff , 242 Mich App 120, 123; 618 NW2d 83 (2000).

We also review de novo the question whether a claim is barred by the statute of limitations and the issue of the proper interpretati on and applicability of the limitations periods. See City of Taylor v Detroit Edison Co , 475 Mich 109, 115; 715 NW2d 28 (2006); Adams v Adams (On Reconsideration) , 276 Mich App 704, 709; 742 NW2d 399 (2007). [ Stephens v Worden Ins Agency, LLC , 307 Mich App 220, 227-228; 859 NW2d 723 (2014).]-12- Stiles died on May 31, 2011. The wrongful death savings provi sion applicable to a claim filed by his estate must be determined based on the date of his death. On May 31, 2011, MCL 600.5852 provided:

If a person dies before the pe riod of limitations has run or wi thin 30 days after the period of limitations has run, an action which survives by law may be commenced by the personal representative of the deceased person at any time within 2 years after letters of authority are issued although the period of limitations has run

. But an action shall not be br ought under this provision unless the personal representative commences it within 3 years after the period of limitations has run

. [Emphasis added.]

Effective March 28, 2013, 2012 PA 609 amended the statute to p rovide:

(1) If a person dies before the period of limitations has run or within 30 days after the period of limitations has run, an action that survives by l aw may be commenced by the personal representative of the deceased person at any time within 2 years after lette rs of authority are issu ed although the period of limitations has run

. (2) If the action that survives by law is an action alleging medical malpractice, the 2-year period under subsection (1) runs from the date letters of authority are issued to the first personal representati ve of an estate. Except as provided in subsection (3), the issuance of subsequent letters of authority does not enlarge the time within which the action may be commenced.

(3) If a personal representative dies or is adjudged by a court to be legally incapacitated within 2 years after his or her letters are issue d, the successor personal representative may co mmence an action alleging medical malpractice that survives by law within 1 year after the personal represent ative died or was adjudged by a court to be legally incapacitated.

(4) Notwithstanding subsections (1) to (3), an action shall no t be commenced under this section later than 3 years after the period of limit ations has run. [Emphasis added.]

The Michigan Supreme Court interpreted the applicable version of MCL 600.5852 in Eggleston v Bio-Med Applications of Detroit, Inc , 468 Mich 29; 658 NW2d 139 (2003). In Eggleston , the Court of Appeals held that even based on the pre-amendmen t statutory language, a wrongful death or medical malpractice action must be brought within two years of the original personal representative receiving his or her letters of authori ty. Id . at 32. The Supreme Court held:

The Court relied on this misquotation in holding that a person al representative must bring an action within two years after the initial letters of authority are issued to the firs t personal representative. Thi s is not, however, what the statute says. The statute simply provides that an act ion may be commenced by the personal representative “at any time within 2 years after letters-13- of authority are issued although th e period of limitations has run.” . . . The language adopted by the Legislature clearly allows an action to be brought within two years after letters of authority are issued to the personal representative. The statute does not provide that the two-year period is measured f rom the date letters of authority are issued to the in itial personal representative.

Plaintiff was “the personal repr esentative” of the estate and filed the complaint “within 2 years after letters of authority [were] iss ued,” and “within 3 years after the period of limitations had run.” MCL 600.5852. The action was therefore timely. [ Id . at 33.]

This case is no different than Eggleston . A successor personal representative was appointed on December 10, 2014. That personal representative h ad two years after her letters of authority issued or three years after the original limitations period ran to file the medical malpractice complaint. The thr ee-year period ended May 31, 201 6. Esch had until that date to file the medical malpractice action. She did so. The claim wa s timely and summary disposition would be improper.

We reverse and remand for further proceedings consistent with this opinion. We do not retain jurisdiction. Plaintiff , as the prevailing party, may t ax costs pursuant to MCR 7.219.

/s/ Michael F. Gadola /s/ Michael J. Talbot /s/ Elizabeth L. Gleicher