Bill Text: MI HB5399 | 2011-2012 | 96th Legislature | Introduced

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Bill Title: Civil procedure; statute of limitations; civil action for damages resulting from criminal sexual conduct against a minor; extend tolling of statute of limitations. Amends secs. 5838a & 5851 of 1961 PA 236 (MCL 600.5838a & 600.5851).

Spectrum: Partisan Bill (Democrat 9-0)

Status: (Introduced - Dead) 2012-02-15 - Printed Bill Filed 02/15/2012 [HB5399 Detail]

Download: Michigan-2011-HB5399-Introduced.html

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HOUSE BILL No. 5399

 

February 14, 2012, Introduced by Reps. Meadows, Liss, Slavens, Brown, Hovey-Wright, Rutledge, LeBlanc, Switalski and Segal 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(3) or (4), 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) subsection (2), (3), or (4), 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 mentally ill at the time the claim

 

accrues, the person or those claiming under through 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.

 

     (3) To be considered a disability, 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 the period of limitations.

 

     (4) A person shall not tack successive disabilities. A court

 

shall recognize 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 the period of

 

limitations.

 

     (5) A court shall recognize both of the disabilities of

 

infancy or insanity that disable the person to whom the claim first

 

accrues at the time the claim first accrues. A court shall count

 

the year of grace provided in this section from 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.

 

     (2) Subject to subsection (7), if a claim that arises from

 

sexual conduct with an individual accrues when the individual is

 

less than 18 years of age, the individual or a person entitled to

 

bring an action based on the claim has 10 years after the

 

disability is removed to bring the action, regardless of whether

 

the period of limitations has run.

 

     (3) (7) Except as otherwise provided in subsection (8) (4),

 

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.

 

     (4) (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.

 

     (5) (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.

 

     (6) (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.

 

     (7) Subsection (2) applies to a claim based on respondeat

 

superior only if the defendant employer knew, had reason to know,

 

or had notice of previous sexual conduct by the employee,

 

volunteer, representative, or agent, and if the defendant failed to

 

take reasonable steps to avoid future acts of sexual conduct by the

 

employee, volunteer, representative, or agent. Reasonable steps to

 

avoid future acts of sexual conduct include terminating the

 

employee and preventing or avoiding placement of the employee,

 

volunteer, representative, or agent in a position in which contact

 

with individuals less than 18 years of age occurs while the

 

employee, volunteer, representative, or agent is acting as

 

employee, volunteer, representative, or agent for the defendant, if

 

the employer reports the sexual conduct to the appropriate law

 

enforcement authorities.

 

     (8) (11) As used in this section: , "release

 

     (a) "Mentally ill" means suffering under a condition of mental

 

illness that prevents the sufferer from comprehending or exercising

 

rights he or she possesses. Mental illness does not depend on

 

whether the individual has been judicially determined to be

 

suffering from a mental illness.

 

     (b) "Person" means an individual, partnership, corporation,

 

association, or other legal entity.

 

     (c) "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.

 

     (d) "Sexual conduct" means conduct proscribed by section 520b,

 

520c, 520d, 520e, or 520g of the Michigan penal code, 1931 PA 328,

 

MCL 750.520b, 750.520c, 750.520d, 750.520e, and 750.520g,

 

regardless of whether the conduct was the subject of a criminal

 

prosecution or whether the conduct can be proved beyond a

 

reasonable doubt.