REVISED JUDICATURE ACT OF 1961
Act 236 of 1961
600.5838 Claim based on malpractice; accrual; commencement of action; burden of proof; limitations.
Sec. 5838.
(1) Except as otherwise provided in section 5838a or 5838b, a claim based on the malpractice of a person who is, or holds himself or herself out to be, a member of a state licensed profession accrues at the time that person discontinues serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.
(2) Except as otherwise provided in section 5838a or 5838b, an action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed in sections 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. The plaintiff has the burden of proving that the plaintiff 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. A malpractice action that is not commenced within the time prescribed by this subsection is barred.
History: 1961, Act 236, Eff. Jan. 1, 1963 ;-- Am. 1975, Act 142, Imd. Eff. July 9, 1975 ;-- Am. 1986, Act 178, Eff. Oct. 1, 1986 ;-- Am. 2012, Act 582, Imd. Eff. Jan. 2, 2013
Compiler's Notes:
Section 3 of Act 178 of 1986 provides:
“(1) Sections 2925b, 5805, 5838, and 5851 of Act No. 236 of the Public Acts of 1961, as amended by this amendatory act, shall not apply to causes of action arising before October 1, 1986.
“(2) Sections 1483, 5838a, and 6304 of Act No. 236 of the Public Acts of 1961, as added by this amendatory act, shall apply to causes of action arising on or after October 1, 1986.
“(3) Sections 1629, 1653, 2169, 2591, 2912c, 2912d, 2912e, 6098, 6301, 6303, 6305, 6306, 6307, 6309, and 6311 of Act No. 236 of the Public Acts of 1961, as added by this amendatory act, shall apply to cases filed on or after October 1, 1986.
“(4) Sections 1651 and 6013 of Act No. 236 of the Public Acts of 1961, as amended by this amendatory act, shall not apply to cases filed before October 1, 1986.
“(5) Chapter 49 of Act No. 236 of the Public Acts of 1961, as added by this amendatory act, shall apply to cases filed on or after January 1, 1987.
“(6) Chapter 49a of Act No. 236 of the Public Acts of 1961, as added by this amendatory act, shall apply to cases filed in judicial circuits which are comprised of more than 1 county on or after July 1, 1990 and shall apply to cases filed in judicial circuits which are comprised of 1 county on or after October 1, 1988.”
Notes of Decisions
Trentadue v. Buckler Automatic Lawn Sprinkler Co., 479 Mich. 378 (Mich. 2007).
· cites it 27× “The scheme also explicitly supersedes the common law as can be seen in the area of medical malpractice, for instance, where this Court’s prestatutory applications of the common-law discovery rule were superseded by MCL 600.5838a, in which the Legislature codified the discovery…”
Levy v. Martin, 620 N.W.2d 292 (Mich. 2001).
· cites it 37× “[11] The *294 present dispute concerns the date on which Dr. Levy's malpractice claim accrued, i.”
Sam v. Balardo, 308 N.W.2d 142 (Mich. 1981).
· cites it 14× “Relying on two other provisions of the Revised Judicature Act, MCL 600.5838; MSA 27A.5838, and MCL 600.2912; MSA 27A.”
Kloian v. Schwartz, 725 N.W.2d 671 (Mich. Ct. App. 2006).
· cites it 8× “5805(6); MCL 600.5838. This case does not involve the six-month discovery provision.”
Wright v. Rinaldo, 761 N.W.2d 114 (Mich. Ct. App. 2008).
· cites it 20× “2d 900 (1994), our Supreme Court examined the application of MCL 600.5838 in a legal-malpractice case.”
Poly-Flex Constr., Inc. v. Neyer, Tiseo & Hindo, Ltd., 582 F. Supp. 892 (W.D. Mich. 2008).
· cites it 24× “5805(10)) for count two’s “negligence” claim, and the six-year statute governing contract claims ( Mich. Comp. Laws § 600.5807 (8)) for count one’s “breach of contract” claim and count three’s “contractual indemnification” claim.”
Stephens v. Worden Ins. Agency, LLC, 859 N.W.2d 723 (Mich. Ct. App. 2014).
· cites it 5× “5829 to MCL 600.5838], and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.”
Hawkins v. Reg'l Med. Labs., PC, 329 N.W.2d 729 (Mich. 1982).
· cites it 8× “We granted leave to appeal primarily to determine "whether plaintiff's claim under the wrongful death act accrued on the date of [the decedent's] death or in accordance with the accrual provisions of the malpractice statute of limitations (MCL 600.5838; MSA 27A.5838)". 410 Mich…”
Solowy v. Oakwood Hosp. Corp., 561 N.W.2d 843 (Mich. 1997).
· cites it 6× “5805(4) and MCL 600.5838; MSA 27A.5838. The general limitation period for malpractice actions provides that a plaintiff must bring his action within two years of when the claim first accrues.”
Morgan v. Taylor, 451 N.W.2d 852 (Mich. 1990).
· cites it 8× “[MCL 600.5838; MSA 27A.5838. Emphasis added.”
Nielsen v. Barnett, 485 N.W.2d 666 (Mich. 1992).
· cites it 10× “MCL 600.5838; MSA 27A.5838. The parties dispute whether, absent an express provision in the agreement providing a period of limitation, the arbitrators could find that the plaintiffs' claim was untimely.”
Cunningham v. Huffman, 609 N.E.2d 321 (Ill. 1993).
· cites it 4× “Act 142; Mich.Comp.Laws § 600.5838(1) (1987).) By 1986, however, after a 10-year experiment with the doctrine, the Michigan legislature eliminated the provision.”
— Mich. Comp. Laws § 600.5838(1) — 80 cases
Levy v. Martin, 620 N.W.2d 292 (Mich. 2001).
“[11] The *294 present dispute concerns the date on which Dr. Levy's malpractice claim accrued, i.”
Kloian v. Schwartz, 725 N.W.2d 671 (Mich. Ct. App. 2006).
“5805(6); MCL 600.5838. This case does not involve the six-month discovery provision.”
Trentadue v. Buckler Automatic Lawn Sprinkler Co., 479 Mich. 378 (Mich. 2007).
“The scheme also explicitly supersedes the common law as can be seen in the area of medical malpractice, for instance, where this Court’s prestatutory applications of the common-law discovery rule were superseded by MCL 600.5838a, in which the Legislature codified the discovery…”
Stephens v. Worden Ins. Agency, LLC, 859 N.W.2d 723 (Mich. Ct. App. 2014).
“5829 to MCL 600.5838], and in cases not covered by these sections the claim accrues at the time the wrong upon which the claim is based was done regardless of the time when damage results.”
Wright v. Rinaldo, 761 N.W.2d 114 (Mich. Ct. App. 2008).
“2d 900 (1994), our Supreme Court examined the application of MCL 600.5838 in a legal-malpractice case.”
— Mich. Comp. Laws § 600.5838(2) — 81 cases
Trentadue v. Buckler Automatic Lawn Sprinkler Co., 479 Mich. 378 (Mich. 2007).
“The scheme also explicitly supersedes the common law as can be seen in the area of medical malpractice, for instance, where this Court’s prestatutory applications of the common-law discovery rule were superseded by MCL 600.5838a, in which the Legislature codified the discovery…”
Levy v. Martin, 620 N.W.2d 292 (Mich. 2001).
“[11] The *294 present dispute concerns the date on which Dr. Levy's malpractice claim accrued, i.”
— Mich. Comp. Laws § 600.5838(a) — 1 case
— Mich. Comp. Laws § 600.5838(a)(3) — 1 case
Annotations are extracted automatically from the opinions in the
Syfert caselaw corpus and ranked by authority, recency, and
treatment. Dots show Syfertize treatment of the citing case itself.