Kincaid v. Cardwell

• Citation: 834 N.W.2d 122,300 Mich.App. 513
• Decision Date: 18 April 2013
• Docket Number: Docket No. 310045.
• Parties: KINCAID v. CARDWELL.
• Court: Court of Appeal of Michigan (US)

300 Mich.App. 513

834 N.W.2d 122

KINCAID

v.CARDWELL.

Docket No. 310045.

Court of Appeals of Michigan.

Submitted Feb. 12, 2013, at Lansing.

Decided April 18, 2013, at 9:00 a.m.

Fieger, Fieger, Kenney, Giroux & Danzig P.C. (by Geoffrey N. Fieger, South field, and Sima G. Patel) for Brenda Kincaid.

Plunkett Cooney (by Robert G Kamenec and Josephine A. DeLorenzo) for Robert Cardwell, M.D., and St. Clair Cardiovascular Surgeons, P.L.C.

Before: FITZGERALD, P.J., and METER and M.J. KELLY, JJ.

M.J. KELLY, J.

In this medical malpractice suit, plaintiff Brenda Kincaid appeals by right the trial court's order dismissing her suit against defendants Robert J. Cardwell, M.D., and his practice, St. Clair Cardiovascular Surgeons, P.L.C., on the grounds that her suit was untimely. On appeal, we conclude that Kincaid failed to rebut the evidence that her claims were untimely. For that reason, we affirm.

I. BASIC FACTS

On March 17, 2008, Kincaid dropped a piece of lumber while working and injured her left foot. She went to the hospital, but x-rays did not reveal any fractures. She then saw Anca Rusu–Lenghel, M.D., for pain in her foot on April 7, 2008, and was referred to a podiatrist, Laura LaMar, D.P.M.¹

Kincaid saw LaMar on April 23, 2008, with complaints of “numbness, burning, and pain” in her left foot since the original injury. Kincaid's foot had some discoloration and blisters at the time. LaMar referred Kincaid to Vernon Dencklau, D.O., but Kincaid ended up seeing one of Dencklau's partners, Cardwell.

Kincaid saw Cardwell for the first time on April 25, 2008. Cardwell examined Kincaid's foot and leg and noted that her “left great toe is discolored, tender, and has some edema.” He wrote that her “two smallest toes of the left [foot] have darkened areas, which are moderately firm.” Cardwell diagnosed Kincaid as having “traumatic foot injury, which has had poor healing likely secondary to compromised blood flow to her left lower extremity.” Kincaid had a lower extremity Doppler study on the same visit, and the study was “consistent with potentially severe arterial occlusive disease of the left lower extremity....” Cardwell also ordered a magnetic resonance angiogram (MRA) on Kincaid's aorta and lower extremities.

Kincaid had the MRA on April 28, 2008. The MRA revealed some occlusion in Kincaid's “left anterior tibial artery” and some narrowing of the “proximal posterior tibial arteries bilaterally,” but did not otherwise reveal significant “flow limiting stenosis” in the “lower extremity runoff.”

Cardwell examined Kincaid again on May 7, 2008. He noted a “persistent discoloration of her left great toe and two smallest toes.” He also discussed the MRA results with Kincaid and stated that there were mild signs of arterial disease in Kincaid's “left posterior tibial” artery and “moderate to possibly severe” signs of disease in the “anterior tibial artery.” However, he noted that there was still good blood flow to her foot at the time. He instructed her to quit smoking and to return in two weeks.

Kincaid returned to Cardwell on June 6, 2008, with reports of severe pain. Cardwell performed a second Doppler study, which showed mild “diminished [blood] flow to [Kincaid's] left ankle area” and that her “anterior tibial artery [was] occluded on the left.” He prescribed Keflex and Percocet and asked Kincaid to return for a follow-up.

Cardwell saw Kincaid again on June 16, 2008. He noted that she had “worsening discomfort and discoloration of her left fourth and fifth toes” and stated that it might be necessary to consider amputation because “there is nothing to revascularize” the foot.

Kincaid next saw Cardwell on July 9, 2008. At that time, Cardwell observed that Kincaid had gangrene in her great and fourth toes. He then referred her to Sadiq Hussain, M.D., for consideration of a left fourth toe amputation. Dencklau, who worked with Hussain, saw Kincaid on July 17, 2008, and determined that she had no bypassable vessels with which to revascularize her foot. As such, he recommended amputation. Dencklau amputated Kincaid's left leg below the knee on July 21, 2008.

Kincaid sued LaMar; LaMar's practice, Hodor and Frascone D.P.M., P.C.; Cardwell; and Cardwell's practice, St. Clair Cardiovascular Surgeons, P.L.C., on November 20, 2010, for malpractice. In her complaint, Kincaid alleged that for “several months leading up to the amputation,” defendants breached the applicable standards of care by failing to timely evaluate and treat Kincaid's conditions, failing to refer her to other physicians, failing to warn about the risks, failing to perform appropriate tests, failing to follow up, failing to notify Kincaid's other physicians that they “were not competent or qualified to treat” Kincaid, and failing to otherwise act reasonably.

Kincaid filed an amended complaint with substantially the same allegations in March 2011. However, she only named Cardwell and St. Clair Cardiovascular as defendants. The circuit court clerk entered an order in July 2011 dismissing Kincaid's claims against LaMar and Hodor and Frascone for failure to serve them.

Kincaid died from lung cancer on October 23, 2011.

On January 3, 2012, Cardwell and St. Clair Cardiovascular moved for summary disposition under MCR 2.116(C)(7). Relying on Kincaid's original notice of intent to sue, which Kincaid had sent on April 5, 2010, Cardwell and St. Clair Cardiovascular argued that Kincaid's claim accrued on either April 25 or May 7, 2008. With the tolling period provided during the notice period, see MCL 600.2912b; MCL 600.5856(c), they maintained that Kincaid had—at the latest—until October 25, 2010, to file her complaint. Because Kincaid did not file her complaint until November 30, 2010, they asserted, it was untimely. Accordingly, they asked the trial court to dismiss Kincaid's complaint with prejudice.

In response to the motion for summary disposition, Kincaid noted that she had not alleged any specific dates in her complaint for Cardwell's breach of the standard of care; rather, she had generally alleged that defendants had breached the standard of care for “several months leading up to the below-the-knee amputation....” Kincaid argued that the evidence showed that Cardwell had breached the standard of care—through undisclosed acts and omissions—on three appointment dates: June 6, June 16, and July 9, 2008. Using June 6, 2008, as the accrual date, Kincaid concluded that her suit was timely. She explained that she had two years from the accrual date to sue, which would be June 6, 2010. See MCL 600.5805(6). However, because the period of limitations was tolled for 182 days after she filed her notice of intent to sue on April 5, 2010, see MCL 600.5856(c), she had until December 7, 2010, to sue.

Cardwell and St. Clair Cardiovascular replied to Kincaid's response on February 24, 2012. They argued that Kincaid was, in effect, relying on the doctrine of continuing wrongs and the last treatment rule, which had been abolished in Michigan. Because the record showed that Kincaid's claims concerned breaches that initially occurred on April 25, 2008, they maintained that the court must use that date as the accrual date.

The trial court held a hearing on Cardwell and St. Clair Cardiovascular's motion on March 5, 2012. At the hearing, Kincaid's lawyer again argued that there were multiple accrual dates because each time Kincaid appeared for an appointment or treatment she had a worsened condition: “It was not the same diagnosis that was being given on each presentment.” The trial court determined that, on the basis of the claims stated in her notice of intent to sue, Kincaid's malpractice claim accrued on April 25, 2008. Consequently, it agreed that Kincaid's suit was untimely.

The trial court entered an order dismissing Kincaid's claims under MCR 2.116(C)(7) on March 15, 2012. After the trial court denied Kincaid's motion for reconsideration on April 13, 2012, Kincaid appealed in this Court.

II. SUMMARY DISPOSITION

A. STANDARD OF REVIEW

On appeal, Kincaid argues that the trial court erred when it determined that her medical malpractice claim accrued solely on April 25, 2008. Specifically, she contends that she adequately alleged discrete acts and omissions that occurred on each day of treatment. Since she sued within the period of limitations applicable to the breaches of the standard of care that occurred on the last two days of treatment, she maintains that her suit was timely. This Court reviews de novo a trial court's decision on a motion for summary disposition. Barnard Mfg. Co., Inc. v. Gates Performance Engineering, Inc., 285 Mich.App. 362, 369, 775 N.W.2d 618 (2009). This Court also reviews de novo whether the trial court correctly selected, interpreted, and applied the relevant statutes. Gay v. Select Specialty Hosp., 295 Mich.App. 284, 291–292, 813 N.W.2d 354 (2012).

B. MCR 2.116(C)(7)

Summary disposition under MCR 2.116(C)(7) is appropriate when the undisputed facts establish that the plaintiff'sclaim is barred under the applicable statute of limitations. See Wade v. Dep't of Corrections, 439 Mich. 158, 162, 483 N.W.2d 26 (1992). Generally, the burden is on the defendant who relies on a statute of limitations defense to prove facts that bring the case within the statute. Tumey v. Detroit, 316 Mich. 400, 410, 25 N.W.2d 571 (1947). In determining whether a plaintiff's claim is barred because of immunity granted by law, the reviewing court will accept the allegations stated in the plaintiff's complaint as true unless contradicted by documentary evidence. Maiden v. Rozwood, 461 Mich. 109, 119, 597 N.W.2d 817 (1999). Although generally not required to do so, see MCR 2.116(G)(3), a party moving for summary disposition under MCR 2.116(C)(7) may support the motion with affidavits, depositions, admissions, or other admissible documentary evidence, which the reviewing court must consider, Maiden, 461 Mich. at 119, 597 N.W.2d 817, citing MCR 2.116(G)(5). The reviewing co...