Lumley v. Board of Regents for University of Michigan

Decision Date12 January 1996
Docket NumberDocket No. 145941
Citation544 N.W.2d 692,215 Mich.App. 125
PartiesLinda Jeanette LUMLEY, Plaintiff-Appellee, v. BOARD OF REGENTS FOR THE UNIVERSITY OF MICHIGAN and University Health Services of the University of Michigan, Defendants-Appellants.
CourtCourt of Appeal of Michigan — District of US

Sommers, Schwartz, Silver & Schwartz, P.C. (by Helen K. Joyner), Southfield, for plaintiff.

Plunkett & Cooney, P.C. (by Robert G. Kamenec), Detroit, for defendants.

Before JANSEN, P.J., and FITZGERALD and LAMB, * JJ.


Defendants, Board of Regents for the University of Michigan and University Health Services of the University of Michigan, appeal as of right from a Court of Claims judgment in favor of plaintiff in this medical malpractice case. We affirm.

Plaintiff's action is based on the alleged failure of Dr. Mary Johnson, a doctor at University Health Services of the University of Michigan, to advise plaintiff that hypothalamus pituitary dysfunction, a condition from which plaintiff suffered that was manifested by amenorrhea, could cause endometrial cancer if untreated and to recommend treatment for the condition.

Plaintiff first sought treatment from Dr. Johnson in March 1982 because of chronic vaginal infections. At the first of two meetings, plaintiff informed the doctor of her medical history, including cervical cancer, an abortion and resultant surgery to correct scarring, removal of an intrauterine device, and amenorrhea. Dr. Johnson ordered a series of tests and placed plaintiff on Provera, a synthetic progesterone, to diagnose the cause of plaintiff's amenorrhea. Plaintiff was instructed to return in one month.

At her next appointment, plaintiff advised Dr. Johnson that she had minor spotty bleeding. Dr. Johnson, having determined that plaintiff had hypothalamic pituitary dysfunction, advised plaintiff that she would need ovary stimulation if she were to have children. According to plaintiff, this was the extent of her discussion with Dr. Johnson.

Dr. Johnson testified that she instructed plaintiff about regular treatment with Provera and gave her a prescription for Provera. Dr. Johnson indicated that her custom and habit was to have follow-up appointments with patients who had been prescribed Provera. Dr. Johnson agreed that she did not tell plaintiff that she was at increased risk for cancer.

Plaintiff continued to experience amenorrhea through 1987, when she was diagnosed with endometrial cancer and underwent a total hysterectomy. In December 1987, plaintiff filed a complaint in the Washtenaw Circuit Court against Dr. Johnson, the Board of Regents, and University Health Services. The case was assigned to Judge Edward Deake. Pursuant to Judge Deake's September 2, 1988, order, the suit against the Board of Regents and University Health Services was transferred to the Court of Claims. Judge Thomas L. Brown was assigned to sit as the judge in the Court of Claims. The case was later joined with the case against Dr. Johnson in the Washtenaw Circuit Court pursuant to M.C.L. § 600.6421; M.S.A. § 27A.6421.

Defendants sought and were denied summary disposition based on governmental immunity. Judge Deake concluded that the amended version of M.C.L. § 691.1407(4); M.S.A. § 3.996(107)(4) applied in this case.

Before trial, the case was reassigned to Washtenaw Circuit Judge Donald E. Shelton, who presided over the circuit court case and sat in the capacity of Court of Claims judge in plaintiff's suit against the Board of Regents and University Health Services.

In the circuit court action, the jury returned a verdict for Dr. Johnson. In the Court of Claims action, Judge Shelton found that Dr. Johnson was negligent and that the Board of Regents and University Health Services were vicariously liable for Dr. Johnson's professional negligence. Judge Shelton entered judgment for plaintiff in the amount of $140,000. A motion by the Board of Regents and University Health Services for judgment notwithstanding the verdict was denied.


The first issue in this case is when the cause of action arose for purposes of the application of governmental immunity. The governmental immunity act was amended in 1986 to include a public hospital exception to governmental immunity. M.C.L. § 691.1407(4); M.S.A. § 3.996(107)(4). The exception does not apply to causes of action that arose before July 1, 1986. 1986 P.A. 175, § 3. Thus, if plaintiff's claim arose before that date, it is barred by governmental immunity.

The issue regarding when a cause of action "arises" under § 3 of Act 175 presents a question of legislative intent. Courts must read the statutory language being construed in light of the general purpose sought to be accomplished. Witherspoon v. Guilford, 203 Mich.App. 240, 246-247, 511 N.W.2d 720 (1994). Where the language is so plain as to leave no room for interpretation, courts should not read into it words that are not there or that cannot fairly be implied. Feld v. Robert & Charles Beauty Salon, 435 Mich. 352, 368, 459 N.W.2d 279 (1990).

It is presumed that, when the Legislature enacts statutes, it is familiar with the rules of statutory construction and has knowledge of existing laws on the same subject. Joe Dwyer, Inc. v. Jaguar Cars, Inc., 167 Mich.App. 672, 684, 423 N.W.2d 311 (1988). Where a term is not defined in a statute, resort to dictionary definitions is appropriate to construe statutory language according to common and approved usage. Consumers Power Co. v. Lansing Bd of Water & Light, 200 Mich.App. 73, 76, 503 N.W.2d 680 (1993).

The Supreme Court seems to view the word "arises" as being synonymous with "accrues." Hyde v. Univ. of Michigan Bd of Regents, 426 Mich. 223, 231, 393 N.W.2d 847 (1986). A cause of action has been said to accrue at the moment the plaintiff could first commence a lawsuit upon it. It accrues when all the elements of the claim have occurred and can be alleged in a proper complaint. Connelly v. Paul Ruddy's Equipment Repair & Service Co., 388 Mich. 146, 150, 200 N.W.2d 70 (1972). Damage is one of those elements. Id. The elements of an action for damages arising out of a tortious injury include: (1) a legal duty, (2) a breach of the duty, (3) a causal relationship, and (4) damages. Id. at 149-150, 200 N.W.2d 70. See Inglis v. Public School Employees Retirement Bd., 374 Mich. 10, 12, 131 N.W.2d 54 (1964).

It could be argued that a plaintiff should know or have reason to know of a cause of action before it arises. Also arguable is that the accrual date, hence when the cause arises, should be fixed by the statute of limitations that specifically provides the means to arrive at the accrual date.

The statute of limitations for medical malpractice actions provides that the claim must be brought within two years of the accrual date or six months of discovery of the claim. M.C.L. § 600.5805(4); M.S.A. § 27A.5805(4). Discovery is merely an alternative means for commencing the running of the statutory period of limitation. It is not an element of a malpractice action.

The accrual date of a medical malpractice cause is the date of the act or omission upon which the claim is based, regardless of when the claim was discovered. M.C.L. § 600.5838a; M.S.A. § 27A.5838(1). For causes of action arising before October 1, 1986, the accrual date is the date of the last treatment. It is clear that under the statute of limitations, the accrual date is not synonymous with the date the claim arises.

Indeed, it is logical to assume that the Legislature used the word "arise" to avoid any confusion with the special definition given accrual language in statutes of limitation. Thus, we conclude that, when the Legislature used the term "arise," it intended the meaning commonly associated with the phrase "causes of action which arise." Specifically, the date the claim arises is when the action can be alleged in a complaint. See Inglis, supra.

The question, therefore, is whether plaintiff could have alleged all the elements of the malpractice claim before July 1, 1986. Defendants' contention that the claim could have been alleged in 1982 ignores the damages element. Although Dr. Johnson treated plaintiff in 1982, plaintiff was not diagnosed with cancer until June 16, 1987, after which she underwent a hysterectomy. A fair reading of plaintiff's complaint reveals that the damages for which monetary relief were claimed resulted from the cancer and resultant surgery, and not from continuing amenorrhea as suggested by defendants. Accordingly, plaintiff's cause of action arose after July 1, 1986, and the public hospital exception to governmental immunity applies.


Defendants claim that the Court of Claims was collaterally estopped from finding vicarious liability on the part of defendants by the jury's finding in the circuit court action that Dr. Johnson was not negligent. The doctrine of collateral estoppel is a judicial creation, developed and extended from the common law. Nummer v. Treasury Dep't, 448 Mich. 534, 544, 533 N.W.2d 250 (1995). In support of their argument, defendants rely upon general statements of the common law of collateral estoppel as contained in 1 Restatement of Judgments, 2d, § 27, p. 250:

When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the parties, whether on the same or a different claim.

Collateral estoppel bars the relitigation of issues previously decided in a first action when the parties to the second action are the same; where the second action is a different cause of action, the bar is conclusive regarding issues actually litigated in the first action and essential to the judgment. Amalgamated Transit Union, Local 1564, AFL-CIO v. Southeastern Michigan Transportation Authority, 437 Mich. 441,...

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