Eberhard v. Harper-Grace Hospitals

• Decision Date: 22 September 1989
• Docket Number: HARPER-GRACE,Docket No. 103426
• Parties: Thomas EBERHARD, Plaintiff-Appellant, v.HOSPITALS, Grace Hospital Division, Defendant-Appellee. 179 Mich.App. 24, 445 N.W.2d 469
• Court: Court of Appeal of Michigan — District of US

Page 469

445 N.W.2d 469

Thomas EBERHARD, Plaintiff-Appellant, v. HARPER-GRACE HOSPITALS Grace Hospital Division,

Defendant-Appellee.

Docket No. 103426.

179 Mich.App. 24, 445 N.W.2d 469

Court of Appeals of Michigan.

Submitted Feb. 8, 1989.

Decided Aug. 7, 1989.

Released for Publication Sept. 22, 1989.

[179 MICHAPP 26] Lopatin, Miller, Freedman, Bluestone, Erlich, Rosen & Bartnick by Richard E. Shaw, Detroit, for plaintiff-appellant.

Garan, Lucow, Miller, Seward, Cooper & Becker, P.C. by David J. Cooper, Detroit, for defendant-appellee.

Before CYNAR, P.J., and SHEPHERD and MARILYN J. KELLY, JJ.

SHEPHERD, Judge.

Plaintiff Thomas Eberhard appeals as of right from an August 31, 1987, order granting summary disposition in favor of the defendant on plaintiff's negligence claim based on the equitable doctrine of laches. Following oral arguments in this appeal, we remanded the case to the trial court for a hearing and decision on the statute of limitations issue pled by defendant as an alternative affirmative defense. Our purpose in doing so was to have the case developed in as full a posture as possible on both the equitable and legal defenses pled by defendant before reviewing the court's decision to dismiss plaintiff's complaint for lack of timeliness. On remand, the trial court ruled that plaintiff's claim was barred by the applicable three-year statute of limitations. We hold that the trial court applied an incorrect analysis in dismissing plaintiff's complaint on the equitable and legal [179 MICHAPP 27] defenses asserted and, accordingly, find it necessary to reverse and again remand for further proceedings on these defenses.

I THE FACTS

The factual basis for this lawsuit is an allegation that medical care rendered to plaintiff just after his premature birth in 1955 resulted in blindness. Thirty years later on May 30, 1985, plaintiff filed the instant action against the defendant. Plaintiff alleged that he was prescribed extra oxygen after birth and that the defendant breached a duty to provide an apparatus to analyze the oxygen concentration in accordance with the standard of care at that time. Plaintiff claimed that the lack of this instrumentality caused or was a contributing factor of his blindness. With regard to the untimeliness of his complaint, plaintiff alleged:

10. That the Plaintiff was told by his doctors through the years that his blindness was due to congenital factors, according to the hospital records.

11. That the Plaintiff received information within the last six (6) months which gave the Plaintiff reason to investigate causative factors.

12. That the Defendant Hospital report indicates a final diagnosis of congential [sic] nerve causation, for the blindness although DR. CROLL's notes indicate a suspicion of retrolentil [sic] fribroplasia connected to oxygen administration.

Defendant subsequently moved for summary disposition on the basis that plaintiff's action was barred by the doctrine of charitable immunity in effect during 1955. The trial court agreed with defendant. The trial court also held that plaintiff's [179 MICHAPP 28] attempt to plead an exception to the doctrine of charitable immunity, namely a "negligent instrumentality" claim, was time-barred.

On appeal, we are not presented with any issues pertaining to the trial court's application of the doctrine of charitable immunity to this case. The two narrow issues presented concern the trial court's application of the equitable doctrine of laches and the applicable statute of limitation to this case.

II THE STATUTE OF LIMITATIONS DEFENSE

The legal issue we are presented with is whether the so-called "discovery rule" applies to the statute of limitation governing plaintiff's cause of action. The discovery rule in tort cases generally looks to whether the plaintiff knew, or with the exercise of reasonable diligence should have discovered, his or her loss or the wrongful act underlying the cause of action. See Larson v. Johns-Manville Sales Corp., 427 Mich. 301, 399 N.W.2d 1 (1986).

In reviewing this issue, we begin by looking to the current version of the statute of limitations governing causes of actions based on medical malpractice Sec. 5838a of the Revised Judicature Act of 1961, M.C.L. Sec. 600.5838a; M.S.A. Sec. 27A.5838a:

(1) A claim based on the medical malpractice of a person who is, or who holds himself or herself out to be, a licensed health care professional, licensed health facility or agency, employee or agent of a licensed health facility or agency who is engaging in or otherwise assisting in medical care and treatment, or any other health care professional, whether or not licensed by the state, accrues at the time of the act or omission which is the basis for the claim of medical malpractice, [179 MICHAPP 29] regardless of the time the plaintiff discovers or otherwise has knowledge of the claim....

(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 sections 5805 or 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, which ever is later. However, the claim shall not be commenced later than 6 years after the date of the act or omission which 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 shall be on the plaintiff. A medical malpractice action with is not commenced within the time prescribed by this subsection is barred. This subsection shall not apply, and the plaintiff shall be subject to the period of limitations set forth in subsection (3), under 1 or more of the following circumstances:

(a) If discovery of the existence of the claim was prevented by the fraudulent conduct of a health care provider.

(b) If a foreign object was wrongfully left in the body of the patient.

(c) If the injury involves the reproductive system of the plaintiff. [Emphasis added.] ¹

1986 P.A. 178, Sec. 1, which added Sec. 5838a to the RJA, does not apply to causes of action arising before October 1, 1986. See 1986 P.A. 178, Sec. 3. Prior to the addition of this provision, the only provision specifically concerning the accrual of malpractice [179 MICHAPP 30] claims for statute of limitations purposes was contained in RJA Sec. 5838, M.C.L. Sec. 600.5838; M.S.A. Sec. 27A.5838. In Bronson v. Sisters of Mercy Health Corp., 175 Mich.App. 647, 438 N.W.2d 276 (1989), this Court construed the meaning of "claims based on malpractice of a hospital" under the 1975 amendment to RJA Sec. 5838, 1975 P.A. 142, as evidencing a legislative intent to alter the common law by subjecting claims against a hospital for the negligent performance of professional medical services to the period of limitations applicable to medical malpractice actions. This language was moved to RJA Sec. 5838a when 1986 P.A. 178, Sec. 1, was added. The current statute clearly incorporates the discovery rule, while adding a six-year limit on causes of action.

The complaint here alleged negligence in the defendant's breach of a duty to meet the standard of care applicable to hospitals by failing to provide the proper instrumentality to monitor the oxygen concentration administered to plaintiff. Under the current statute, these acts sound in malpractice, rather than ordinary negligence. See Bronson, supra, p. 653, 438 N.W.2d 276. Hence, had the current version of the statute been in effect at the time plaintiff's cause of action arose, it seems clear that it would be subject to the six-year cap on actions established by RJA Sec. 5838a(2).

However, because plaintiff's cause of action arose in 1955, this action is governed by the now-repealed provisions of the Judicature Act of 1915, as amended ²:

All actions in any of the courts of this state [179 MICHAPP 31] shall be commenced within 6 years next after the causes of action shall accrue, and not afterward, except as hereinafter specified: Provided, however,

* * * * * *

2. Actions to recover damages for injuries to person or property and actions for trespass upon lands shall be brought within 3 years from the time said actions accrue, and not afterwards;

3. Actions ... for malpractice of physicians, surgeons or dentists, ... shall be brought within 2 years from the time the cause for action accrues, and not afterwards. [M.C.L. Sec. 609.13; M.S.A. Sec. 27.605.]

At the time these limitation periods were in effect, our Supreme Court in Johnson v. Caldwell, 371 Mich. 368, 379, 123 N.W.2d 785 (1963), adopted the following discovery rule for actions against physicians which were subject to the two-year period of limitation of subsection (3):

The limitation statute or statutes in malpractice cases do not start to run until the date of discovery, or the date when, by the exercise of reasonable care, plaintiff should have discovered the wrongful act.

In adopting this rule, the Johnson Court considered the "inequities" that would result in the case at hand if the discovery rule were not adopted:

The grave inequities which could follow the application of the last treatment rule are well illustrated by the case at bar. Plaintiff testified, as pointed out earlier, "I accepted his [defendant's] word [that] nothing could be done for it." As phrased in Ayers v. Morgan [397 Pa. 282, 285, 154 A.2d 788 (1959) ], it would be "illogical and unintelligent" to require a patient to determine on the date he last consults a physician that malpractice has taken place, when he in fact relies upon the [179 MICHAPP 32] advice that constitutes the malpractice. So to hold would punish the patient who relies upon his doctor's advice and places a premium on skepticism and distrust. [Id.]

However,...