                               STATE OF MICHIGAN

                               COURT OF APPEALS



SARA GERRITY f/k/a SARA BENJAMIN                                          UNPUBLISHED
personal representative of ESTATE OF ERIC                                 November 8, 2016
GERRITY and ANDREW GERRITY,

                  Plaintiffs-Appellants,

v                                                                         No. 329451
                                                                          Cheboygan Circuit Court
WOMEN’S & CHILDREN’S HEALTH                                               LC No. 14-008470-NH
SERVICES and JENNIFER ATKINS, M.D. a/k/a
JENNIFER TRYBAN, M.D.,

                  Defendant,
and

MARVIN COY, D.O.,

                  Defendant-Appellee.


Before: RONAYNE KRAUSE, P.J., and O’CONNELL and GLEICHER, JJ.

PER CURIAM.

        Plaintiffs filed an action alleging wrongful death based on medical malpractice against
Dr. Marvin Coy, the obstetrician who delivered their son, Eric Gerrity. Plaintiffs waited nearly
seven years to file their complaint, but contended that the statute of limitations had been tolled
by the doctor’s misrepresentation of their son’s cause of death. The circuit court found that
plaintiffs were put on notice of their claim contemporaneous with the child’s passing and
dismissed their complaint as untimely. We affirm.

       Plaintiffs Sara and Andrew Gerrity tragically lost their son when he was only 11 days old.
They allege that Dr. Coyand the pediatrician1 who cared for him immediately thereafter informed
them “that Eric’s death resulted from ‘holes in his intestines and stomach.’ ” The doctors
allegedly informed plaintiffs that “Eric was born with the condition and there was nothing that
could have been done to prevent this condition and death.” Plaintiffs contend that the doctors


1
    The parties stipulated to the dismissal of the pediatrician in the circuit court.


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made this misrepresentation to fraudulently conceal their malpractice during labor and delivery
and in the day following Eric’s birth. Plaintiffs further assert that they did not learn the true
cause of Eric’s death until January 7, 2013, when the obstetrician delivering their third child
investigated the matter.

        When Eric was one day old, he was transferred from Cheboygan Memorial Hospital,
where he was born, to DeVos Children’s Hospital for neonatal intensive care and surgery. At
DeVos, Eric’s treating physicians met with Eric’s parents, Sara and Andrew Gerrity. Given
Sara’s young age, her mother, Crystal Benjamin, was also present. In her deposition during
discovery, Benjamin testified that the DeVos physicians told the family that “Eric had no brain
activity” because “he didn’t get enough oxygen . . . [d]uring the delivery.” This lack of oxygen
was the actual cause of Eric’s death.

        The remaining defendant, Dr. Coy, sought summary disposition under MCR 2.116(C)(7)
based on the lateness of plaintiffs’ complaint. As a general rule, medical malpractice claims
must be brought within two years. MCL 600.5805(6). Plaintiffs retorted that the statute of
limitations was tolled until January 7, 2013, because Dr. Coy fraudulently concealed the basis of
their claim. MCL 600.5855 thereby granted them until January 7, 2015 to raise their claim,
plaintiffs argued. Dr. Coy argued in response that even if he fraudulently concealed the cause of
Eric’s death, MCL 600.5838a(3) allowed plaintiffs only six months after discovery to file their
claims.

        We need not resolve whether the two-year or six-month period following discovery of
fraud applies in this case. The statute of limitations was not tolled by fraud in this case. The
unrefuted testimony of Crystal Benjamin substantiates that plaintiffs were advised by physicians
at DeVos that Eric had no brain activity because “he didn’t get enough oxygen . . . [d]uring the
delivery.” Although Dr. Coy had advised plaintiffs that the gastrointestinal holes were present at
birth, Dr. Coy provided no information regarding the cause of Eric’s death. Plaintiffs were
advised at DeVos that Eric was deprived of oxygen at delivery and were indisputably aware that
his lack of brain activity led directly to his death. Their complaint asserts that Eric died due to
complications of hypoxic ischemic encephalopathy, a condition triggered by lack of oxygen at
birth. Accordingly, they had enough information to discover the existence of their claim despite
Dr. Coy’s comment about the origin of the holes. Alternatively stated, Dr. Coy’s statement did
not prevent plaintiffs from discovering that Eric had sustained a brain injury as a consequence of
medical malpractice during his delivery. Plaintiffs were therefore required to file their medical
malpractice claim within two years of Eric’s death. MCL 600.5805(6). Their failure to do so
warranted dismissal.

       We affirm.



                                                            /s/ Amy Ronayne Krause
                                                            /s/ Peter D. O'Connell
                                                            /s/ Elizabeth L. Gleicher




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