In VanSlembrouck v Halperin, the Court of Appeals determined that a medical malpractice action was timely filed under the following circumstances: the patient was injured the day of her brith, and under Michigan law (MCL 600.5851(7)), a child who is injured and under eight years old has until the expiration of the limitations period or her tenth birthday to file suit. But, don't forget that pesky notice of intent, which must be filed first! Now, normally, when a plaintiff files a notice of intent within the medical malpractice limitations period, it tolls the time to file the complaint by 182 days. The question in was whether the statute that allows a child under eight to file until her tenth birthday is a statute of limitations or a saving statute. Because the notice of intent only tolls the statute of limitations, it does not toll a savings period. In VanSlemboruck, the notice of intent was not filed until thirty days before the girl's tenth birthday, and the complaint was not filed until after her birthday.

The Court of Appeals held that 600.5851(7) was, indeed, a statute of limitations and the complaint was timely filed.

The plaintiff probably came within one vote (and one election) of losing at the Michigan Supreme Court. The court had granted leave to appeal before the election, but just vacated that order. Justice Corrigan, joined by Justices Young and Markman, dissented, arguing in detail that the statute is very much a saving statute.

On a side note, this is one of the cases cited by Justice Markman here as an example of the new majority ignoring precedent from the old majority.

Two themes converging . . .