McKiney v. Clayman

• Decision Date: 01 December 1999
• Docket Number: Docket No. 201336.
• Citation: 602 N.W.2d 612,237 Mich. App. 198
• Parties: Susan M. McKINEY, Plaintiff-Appellant, v. Lewis CLAYMAN, MD, DDS, and Sinai Hospital, an assumed name for Sinai Hospital of Greater Detroit, Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

602 N.W.2d 612

237 Mich. App. 198

Susan M. McKINEY, Plaintiff-Appellant, v. Lewis CLAYMAN, MD, DDS, and Sinai Hospital, an assumed name for Sinai Hospital of Greater Detroit, Defendants-Appellees.

Docket No. 201336.

Court of Appeals of Michigan.

Submitted May 5, 1999, at Detroit.

Decided August 13, 1999, at 9:30 a.m.

Released for Publication December 1, 1999.

Robert Gittleman, Southfield, for the plaintiff.

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

Before: GAGE, P.J., and SMOLENSKI and ZAHRA, JJ.

GAGE, P.J.

Plaintiff appeals as of right the trial court's order granting defendants summary disposition with respect to plaintiff's medical malpractice claim. The trial court granted defendants summary disposition pursuant to MCR 2.116(C)(7) on the basis that plaintiff filed her claim beyond the time allowed by the applicable statute of limitations. We affirm.

Defendant Lewis Clayman, a dentist and medical doctor, was engaged in the practice of oral and maxillofacial surgery at defendant Sinai Hospital. In 1989, defendant Clayman (hereinafter defendant) began treating plaintiff, who had sores or lesions on her tongue. In June of 1989, defendant resectioned plaintiff's tongue, partially removing a cancerous growth. Spots recurred on plaintiff's tongue, however, several times over the next few years. Defendant opined that the spots represented recurring dysplasia, not cancer, and opted to perform laser treatments to remove the spots. Although plaintiff underwent laser surgeries in 1990, 1992, and 1993, these procedures did not successfully prevent the spots from reappearing.

On various occasions during this 1989-93 period, defendant apparently referred plaintiff to dentists and oral surgeons. Eventually, on December 2, 1993, plaintiff received a tentative diagnosis from doctors on Henry Ford Hospital's Head and Neck Tumor Board that the spot on her tongue might represent spreading cancer. On December 3, 1993, plaintiff visited defendant's office for the last time. At this visit, plaintiff informed defendant of the tentative cancer diagnosis she had received, and also discussed with defendant photodynamic therapy, an experimental treatment of which the Henry Ford Hospital doctors had made her aware. Defendant remained of the opinion that plaintiff did not have cancer, but only a precancerous growth. While plaintiff did not visit defendant's office again, she and defendant had several telephone conversations from January until March 1994, during which they discussed the merits of photodynamic therapy and the existence of other alternative treatments.

After a biopsy in early March 1994, plaintiff learned that she did indeed have cancer. Plaintiff then consented to photodynamic therapy at Henry Ford Hospital, which therapy began in April 1994. Because the photodynamic therapy did not completely rid plaintiff's mouth of cancerous cells, plaintiff subsequently underwent radiation therapy at a University of Michigan hospital. Since plaintiff and defendant's early 1994 telephone conversations, plaintiff apparently has not spoken again with defendant.

On December 21, 1995, plaintiff filed the instant malpractice action. The trial court granted defendant summary disposition pursuant to MCR 2.116(C)(7) on the basis that plaintiff had filed her complaint beyond the two-year period of limitation applicable to medical malpractice actions.

Plaintiff now challenges the trial court's grant of summary disposition. We review de novo a trial court's grant of summary disposition under MCR 2.116(C)(7). Novak v. Nationwide Mut. Ins. Co., 235 Mich.App. 675, 681, 599 N.W.2d 546 (1999). We consider all documentary evidence submitted by the parties and accept as true the plaintiff's well-pleaded allegations, except those contradicted by documentary evidence. We view the uncontradicted allegations in the plaintiff's favor and ascertain whether the claim is time-barred as a matter of law. Id. Whether a cause of action is barred by the statute of limitations is a question of law that we also review de novo. Ins Comm'r v. Aageson Thibo Agency, 226 Mich.App. 336, 340-341, 573 N.W.2d 637 (1997).

Plaintiff contends that because she continued receiving treatment from defendant by telephone through March 3, 1994, this date constitutes the accrual date of her malpractice claim, and that the trial court therefore erred in relying on the date of plaintiff's last visit to defendant's office as the appropriate accrual date. To determine the validity of plaintiff's argument, we must examine the statute of limitations in effect when plaintiff's cause of action arose. Chase v. Sabin, 445 Mich. 190, 192, n. 2, 516 N.W.2d 60 (1994). Generally, a plaintiff must commence his medical malpractice action within two years of the claim's accrual. MCL 600.5805(1), (4); MSA 27A.5805(1), (4).¹ The statutory definition of "accrue" in effect at the time plaintiff's claim arose explained that

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 ... accrues at the time of the act or omission which is the basis for the claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim. [MCL 600.5838a(1); MSA 27A.5838(1)(1).]

Because the accrual date depends on the basis of plaintiff's malpractice allegations, we must examine plaintiff's complaint.

The essence of the malpractice allegations in plaintiff's complaint is that defendant failed to properly evaluate her condition by not diagnosing her cancer, and failed to properly treat her by neglecting to conduct appropriate examinations and neglecting to refer her to other, more appropriate and competent health-care providers. Plaintiff offers no specific date on which defendant's failures allegedly occurred, but instead maintains that these failures represented ongoing deficiencies that continued until the termination date of the parties' physician-patient relationship, March 3, 1994. As support for her argument that her claim did not accrue until March 3, 1994, plaintiff cites several Michigan cases indicating that doctor-patient telephone calls can extend the professional relationship. Plaintiff's reliance on these cases, however, is misplaced. The cited cases interpret an obsolete statutory definition of accrual for purposes of medical malpractice actions arising after 1986. Morgan v. Taylor, 434 Mich. 180, 192, n. 17, 451 N.W.2d 852 (1990). Before 1986, M.C.L. § 600.5838(1); MSA 27A.5838(1) provided that malpractice claims accrued "at the time th[e state licensed professional] discontinues treating or otherwise serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose." Stapleton v. City of Wyandotte, 177 Mich.App. 339, 343, 441 N.W.2d 90 (1989). Because plaintiff's claim definitely accrued after 1986 when the Legislature abrogated the "last treatment rule" with respect to medical malpractice claims, a determination of the termination date of the parties' physician-patient relationship is irrelevant to a proper disposition of the instant case.²

Plaintiff's position that her claim did not accrue until the end of the parties' professional relationship ignores the statutory language defining accrual as "the time of the act or omission which is the basis for the claim." MCL 600.5838a(1); MSA 27A.5838(1)(1) (emphasis added).³ This unambiguous language reflects the Legislature's desire to focus the accrual date of medical malpractice claims on the occasion of the act or omission complained of, and the Legislature's clear rejection of the notion that the existence of a continuing physician-patient relationship by itself could extend the accrual date beyond the specific, allegedly negligent act or omission charged. Eaton Farm Bureau v. Eaton Twp., 221 Mich.App. 663, 668, 561 N.W.2d 884 (1997) (A change in statutory language is presumed to reflect a change in the meaning of the statute.). Plaintiff clearly based her malpractice claim on defendant's failure to diagnose her cancer and defendant's allegedly improper election of a course of treatment. Presumably defendant's diagnosis and treatment decisions initially occurred at some point before his first laser treatment removal in 1990 of the spot that had appeared on plaintiff's tongue. We may assume for purposes of our analysis that defendant's subsequent 1992 and 1993 misdiagnoses and decisions to continue utilizing laser treatment after the spot's recurrences constituted separate acts or omissions that would represent new accrual dates.⁴ Even assuming further that defendant's December 3, 1993, restatement of his belief that plaintiff did not have cancer qualified as a separate, distinct diagnosis of plaintiff's condition in light of the contrary information she had received from Henry Ford Hospital doctors, plaintiff nowhere alleged any subsequent new act or omission beyond December 3, 1993, that would extend her claim's accrual date.

With respect to her early 1994 telephone conversations with defendant, plaintiff offered the following testimony:

Q: And your telephone calls with [defendant] after [December 3, 1993] were basically to report to him what was going on with your treatment elsewhere?

A: I had no treatment elsewhere at that time. My phone calls to him were I guess hoping that maybe he would have some other alternatives for me. The photodynamic therapy didn't exactly sound like a beautiful road to go down, but I found no other.

* * *

Q: Well, you had biopsies done at Henry Ford?

A: I waited three months to do them. I was waiting desperately for Dr. Clayman to give me more advice on what he thought wasn't cancer.

* * *

Q: So were they [Henry Ford doctors] recommending that you try the photodynamic therapy first?

A: They explained to me that it was normally used for— I can't even remember the different

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