There is no time limit for opening probate, but there IS a statute of limitations on malpractice claims and that is 3 years. As you indicated, you cannot file a malpractice claim without first opening a probate estate. The Personal Representative is the only person who can make such a claim. Given the time it takes to get medical records and investigate the circumstances, you are really late in the game, here, if it is not already too late.
You should meet with an attorney to review the circumstances, if you have any interest in pursuing this.
***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!
From Health Care Provider Malpractice (Chapter 28 of Michigan Causes of Action Formbook)
Claims must be brought within two years of the date of the negligent act or omission that is the basis for the claim or within six months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. MCL 600.5838a(1), (2); see also MCL 600.5805(6).
Wrongful death claims involving malpractice
The statute of limitations governing the underlying claim applies, but a savings provision, MCL 600.5852, tolls the statute of limitations in survival-type actions brought under the Wrongful Death Act. If a person dies before the limitation period has run or within 30 days after it has run, his or her personal representative may bring suit within two years after the letters of authority are issued. However, the action must be filed within three years after the limitation period has expired. As noted above, the saving statute does not toll the running of MCL 600.5838a's six-year statute of repose.
YOU SHOULD RETAIN A LAWYER WHO HANDLES MEDICAL MALPRACTICE CASES. Call me if you need a referral to lawyers in this field.
I am licensed to practice law in Michigan and Virginia and regularly handle cases of this sort. My answering your question does not establish an attorney-client relationship. You should consult a lawyer so you can tell the lawyer the entire situation and get legal advice that is precisely tailored to your case.
You do not have to worry about a time limit for opening probate, but you should be very concerned about the statute of limitations for a malpractice claim. I can have you speak with an attorney in my office who does malpractice to determine whether you can still bring a claim and whether you have a viable one. The consultation is free.
Sign up to receive a 3-part series of useful information and advice about personal injury law.