Order Michigan Supreme Court 

Lansing, Michigan 

October 24, 2008 Clifford W. Taylor,

 Chief Justice 

132554 Michael F. Cavanagh 

Elizabeth A. Weaver 

Marilyn Kelly 

Maura D. Corrigan 

DWUNNEKA VANCE, Personal Representative

of the Estate of TERRON VANCE,

Plaintiff-Appellant, 

Robert P. Young, Jr. 

Stephen J. Markman, 

Justices 

v SC: 132554 

 COA: 262465 

HENRY FORD HEALTH SYSTEM, d/b/a 

HENRY FORD HOSPITAL and MERLIN 

Wayne CC: 04-428502-NH 

HAMRE, M.D.,

Defendants-Appellees. 

_________________________________________/ 

On order of the Court, the application for leave to appeal the October 17, 2006 

judgment of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the questions presented should be reviewed by this Court. 

MARKMAN, J. (concurring). 

The decedent was seven years old when he died. Plaintiff, the personal 

representative of the decedent’s estate, filed this medical malpractice claim more than 

two years after the child’s death and more than two years after she was appointed as 

personal representative, but two days before what would have been the decedent’s tenth 

birthday. The trial court denied defendants’ motion for summary disposition, but the 

Court of Appeals reversed on statute of limitations grounds. 

MCL 600.5851(1) provides: 

Except as otherwise provided in subsections (7) and (8), if the 

person first entitled to make an entry or bring an action under this act is 

under 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. 
 

2 

MCL 600.5851(7) provides, in pertinent part: 

[I]f, at the time a claim alleging medical malpractice accrues to a 

person under [MCL 600.5838a] 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. 

Finally, MCL 600.5852 provides: 

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 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 brought under this 

provision unless the personal representative commences it within 3 years 

after the period of limitations has run. 

The dissent argues that because this is a medical malpractice claim that accrued 

before the decedent was eight years old, plaintiff had until the decedent’s tenth birthday 

to file suit, pursuant to § 5851(7). I respectfully disagree. Section 5851(1) states that a 

minor generally “shall have 1 year after the disability is removed through death or 

otherwise” to file a cause of action. Section 5851(7) then states, however, that if the 

minor was under the age of eight when the action accrued, he would only have until his 

tenth birthday to file the action. That is, under § 5851(7), a minor under the age of eight 

would have to file suit before his tenth birthday; he could not wait until he was 19 to file 

suit. However, that does not mean that the minor has until his tenth birthday to file suit if 

the disability has been removed before then. That is, when these provisions are read 

together, it is clear that regardless of how old the minor was when the action accrued, 

death removes the age disability, and, thus, pursuant to § 5851(1), the personal 

representative of the minor’s estate must file the action within one year of the minor’s 

death, unless another saving provision preserves the action, such as the two-year grace 

period for personal representatives in MCL 600.5852.1 However, § 5852 does not 

preserve this action because the decedent died after the period of limitations had run, and 

1

 Such an interpretation is consistent with our decision in Vega v Lakeland Hospitals, 479 

Mich 243, 250 (2007), in which, we stated, 

MCL 600.5851(1) begins, “Except as otherwise provided in 

subsection[] (7) . . . .” Contrary to defendants’ contention, this language 

does not mean that if § 5851(7) is applicable, § 5851(1) is not applicable. 

Instead, it simply means that if § 5851(1) is inconsistent with § 5851(7), § 

5851(7) is controlling. 
 

3 

§ 5852 only applies where the decedent dies before the period of limitations has run. For 

these reasons, I concur in the denial order.2

 KELLY, J. (dissenting.) 

In this medical malpractice case, plaintiff’s decedent, a seven-year-old child, died 

in one of Henry Ford Health System’s hospitals from an alleged morphine overdose. 

Plaintiff brought suit after the expiration of the limitations period and more than two 

years after being appointed decedent’s personal representative, but two days before 

decedent would have been 10 years old. Defendant moved for summary disposition, 

claiming that the statutory period of limitations had expired. The trial court denied the 

motion but the Court of Appeals reversed,3

 relying on its decision in Vega v Lakeland 

Hospitals.

4 

The following year, this Court reversed the Court of Appeals decision in Vega,

5 

relying on MCL 600.5851.6

 We held that MCL 600.5851 applies to the medical 

malpractice claims of those under 18 years of age or insane, unless the claim falls under § 

5851(7). The first sentence of § 5851(7) creates a different limitations period for children 

under eight years of age. That sentence did not apply in Vega, because the child in that 

case was 11 years old at the time of the alleged malpractice. Conversely, the first 

sentence of § 5851(7) does apply in this case because the decedent was under eight years 

of age. Plaintiff argues that the claim was timely because she filed it on behalf 

2

 The dissent suggests that this interpretation of the statute, and that of the Court of 

Appeals, illogically treats surviving children differently than non-surviving children. 

First, it is, of course, not our place to second-guess the Legislature’s logic, or lack 

thereof, as long as this does not rise to the level of an “absurd result.” Second, I am not 

certain that it is, in fact, illogical to treat surviving children differently than non-surviving 

children. Perhaps the Legislature wanted to provide a surviving child the possibility of a 

longer period in which to bring an action simply because the surviving child may be able 

to reap tangible benefits from a successful action that the non-surviving child cannot. 

3 Vance v Henry Ford Health System, 272 Mich App 426 (2006). 

4 Vega v Lakeland Hospitals, 267 Mich App 565 (2005). 

5 Vega v Lakeland Hospitals, 479 Mich 243 (2007). 

6

 MCL 600.5851 provides in pertinent part: 

(1) Except as otherwise provided in subsections (7) and (8), if the person 

first entitled to . . . bring an action is under 18 years of age or insane at the 

time the claim accrues, the person or those claiming under the person shall 

have one year after the disability is removed through death or otherwise, to 

. . . bring the action although the limitations period has run. 
 _________________________________________ 

 

_______________________ 

4 

of a child who was injured before the age of eight years and before the child would have 

reached the age of ten years. 

The Court of Appeals interpretation of the statute creates two distinct classes of 

plaintiffs with differing rights in medical malpractice claims. Under its logic, children 

under eight years of age injured by medical malpractice are allowed to claim the benefit 

of § 5851(7), but children of the same age killed by medical malpractice are not. This 

dichotomy raises a serious question regarding whether the Legislature intended such a 

curious result. 

If the decedent in this case had survived, he would have had until his tenth 

birthday to bring suit. One wonders why the personal representative of the decedent’s 

estate should have less time to bring suit than the child’s parent or guardian, had the child 

survived. Furthermore, this Court’s decision in Vega did not address what plaintiff 

argues is the Court of Appeals error in this case, that § 5851(7) does not apply to 

claimants who fail to survive medical malpractice. 

The Court should grant leave to appeal to consider this jurisprudentially 

significant issue. 

* * * 

(7) . . . [I]f at the time a claim alleging malpractice accrues to a person 

under 5838a, a 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 . . . . If at the time a claim alleging 

medical malpractice accrues to a person under 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. 

l1021 

I, Corbin R. Davis, Clerk of the Michigan Supreme Court, certify that the 

foregoing is a true and complete copy of the order entered at the direction of the Court. 

October 24, 2008 

Clerk