Morgan v. Taylor, Docket No. 83071

• Decision Date: 06 March 1990
• Docket Number: Docket No. 83071
• Citation: 451 N.W.2d 852,434 Mich. 180
• Parties: David MORGAN and Paulette Morgan, Plaintiffs-Appellants, v. Marcus TAYLOR, Defendant, and Cooperative Optical Services, Inc., a Michigan corporation, Defendant-Appellee. 434 Mich. 180, 451 N.W.2d 852
• Court: Michigan Supreme Court

Page 852

451 N.W.2d 852

David MORGAN and Paulette Morgan Plaintiffs-Appellants, v. Marcus TAYLOR, Defendant and Cooperative Optical Services, Inc., a Michigan corporation Defendant-Appellee.

Docket No. 83071.

434 Mich. 180, 451 N.W.2d 852

Supreme Court of Michigan.

Argued Nov. 7, 1989.

Decided March 6, 1990.

[434 MICH 181] Kutinsky, Davey & Goldman by Leslie H. Kutinsky and Sheila Solomon, Birmingham, for plaintiffs-appellants.

Brochert & Ward by Michael J. Brochert, Linda M. Garbarino, and Graham Ward, Bloomfield Hills, for defendant.

OPINION

GRIFFIN, Justice.

In this malpractice action it is alleged that an examination of plaintiff's eyes revealed glaucoma symptoms, but the examining optometrist failed to refer plaintiff to an ophthalmologist. When plaintiff returned for his next routine checkup more than two years later, he was referred to a specialist and learned that he had severe glaucoma which should have been treated much earlier.

We must decide whether plaintiff's malpractice action is barred by the two-year statute of limitations, a question which turns on when his claim accrued. The statute then in effect provided that such a claim accrues when the licensed professional "discontinues treating or otherwise serving the plaintiff ... as to matters out of which the claim for malpractice arose...." ¹

The Court of Appeals concluded that the claim is barred by the statute of limitations. We reverse.

I

During the period relevant to this lawsuit, plaintiff David Morgan ² was an employee of D.W. Zimmerman Company, and a member of UAW Local 417. In 1975, the company and the union entered into a contract with defendant Cooperative Optical Services, Inc. (COS), under which each covered employee became entitled to an eye examination every two years. Plaintiff received eye examinations by COS staff optometrists in 1976, 1978, and on March 7, 1981, and August 18, 1983.

The 1981 eye examination, performed by Dr. Marcus Taylor, included a test for glaucoma which revealed intraocular pressure beyond the normal range. Dr. Taylor concedes that it was his practice in such cases to refer the patient to an ophthalmologist or to have the patient return for another glaucoma test; however, plaintiff asserts that he was not referred to a specialist, nor was he advised to return earlier than his next regular checkup.

On August 18, 1983, plaintiff returned to COS for his next routine eye examination. "[B]y this time," according to his deposition testimony:

"I was in school having trouble getting my right eye to focus like to read and they would water and I was having trouble with night driving and I thought maybe I needed my lenses changed."

Plaintiff testified that this was the first time he noticed any problem with his eyes, and that he had received no eye care of any kind between March 7, 1981, and August 18, 1983.

The August 1983 examination at COS, which was performed by a different staff optometrist, ³ also revealed intraocular pressure beyond the normal range, and plaintiff was then referred to an ophthalmologist who determined that plaintiff had glaucoma. Thereafter, plaintiff was referred to Dr. Marshall Cyrlin, a glaucoma specialist. According to plaintiff, he learned from Dr. Cyrlin in December 1983 that he had sustained irreversible nerve damage, that he might ultimately lose sight in both eyes, and that he should have been referred to an ophthalmologist much earlier than August 1983.

Plaintiff and his wife, Paulette Morgan, filed two lawsuits, one against COS on January 30, 1985, and the other against Dr. Taylor on August 14, 1985. ⁴ Each complaint alleged malpractice in connection with the March 7, 1981, examination for failure, inter alia, to diagnose glaucoma and to take appropriate steps to refer plaintiff for treatment. ⁵ The trial court consolidated the two actions.

Dr. Taylor was dismissed as a party; ⁶ however, a motion by defendant COS for summary disposition upon the basis of the statute of limitations was denied. Finding that the August 1983 examination amounted to a continuation of treatment or services within the meaning of M.C.L. Sec. 600.5838(1); M.S.A. Sec. 27A.5838(1), the trial court concluded that the suit against defendant COS was not barred by the statute of limitations because it had been filed within two years of the date when the action accrued.

The Court of Appeals reversed, ⁷ and we granted leave to appeal. 432 Mich. 892 (1989).

II

The applicable statutes required that a medical malpractice action be brought within two years of the date when the claim accrues, ⁸ or within six months of the time the plaintiff discovered or should have discovered the existence of the claim, whichever is later. ⁹ Conceding that he had knowledge of the malpractice claim in December 1983, plaintiff does not rely on the six-month discovery provision.

Defendant argues that the two-year statute of limitation bars plaintiff's cause of action because it accrued when he was examined on March 7, 1981, and plaintiff's complaint was not filed until January 30, 1985. On the other hand, plaintiff contends that his action is not barred because it did not accrue, and the two-year limitation period did not begin to run, until the subsequent August 18, 1983, examination when plaintiff was referred to an ophthalmologist. At that time, the malpractice statute of limitations, as amended by 1975 P.A. 142, ¹⁰ provided:

"A claim based on the malpractice of a person who is, or holds himself out to be, a ... licensed health professional,[ ¹¹] accrues at the time that person 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, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim." ¹² (Emphasis added.)

We must determine, then, whether plaintiff's claim accrued in March 1981 or in August 1983. Resolution of that controversy hinges on the meaning of the words "discontinues treating or otherwise serving" as they appeared in M.C.L. Sec. 600.5838(1); M.S.A. Sec. 27A.5838(1). Of course, it is plaintiff's position that his last treatment at the hands of defendant as to "matters out of which the claim for malpractice arose" occurred in August 1983. Defendant COS asserts, on the other hand, that each of plaintiff's visits for an eye examination was an isolated visit, and that the last treatment by defendant with respect to matters arising out of the March 1981 examination occurred on the date of that visit. Defendant relies on a line of Court of Appeals decisions holding that a subsequent visit to a health professional, unrelated to the original treatment of an illness or injury, does not toll the statute of limitations.

Because the statutory language at the heart of this controversy represents a codification of the judge-made "last treatment rule," we believe a brief review relating to the development of that rule, and the rationale behind it, will prove helpful. ¹³

A

In Michigan, the last treatment rule originated in De Haan v. Winter, 258 Mich. 293, 296-297, 241 N.W. 923 (1932), when the limitation statute contained no provision fixing the accrual point of a malpractice action. The plaintiff in De Haan was treated for a fractured leg by a physician who aligned the bones and encased the leg in a plaster cast. Until then, the treatment was considered proper, but it was alleged that malpractice followed in not taking x-ray pictures and in failing to provide certain other treatment during the curative process. In determining the date when a malpractice action accrued, this Court stated:

"Until treatment of the fracture ceased the relation of patient and physician continued, and the statute of limitations did not run. While decisions are not in accord upon this question, we are satisfied that in such an action as this the statute of limitations does not commence to run while treatment of the fracture continues. Failure to give needed continued care and treatment, under opportunity and obligation to do so, would constitute malpractice. During the course of treatment plaintiff was not put to inquiry relative to the treatment accorded him." (Citation omitted.)

The rationale for the last treatment rule has been explained on grounds that the patient, while the treatment continues, "relies completely on his physician and is under no duty to inquire into the effectiveness of the latter's measures." Lillich, The malpractice statute of limitations in New York and other jurisdictions, 47 Cornell L.Q. 339, 361 (1962) (citing De Haan v. Winter ).

As the Court of Appeals stated in Heisler v. Rogers, 113 Mich.App. 630, 633, 318 N.W.2d 503 (1982):

"The essence of the last treatment rule is that the cessation of the ongoing patient-physician relationship marks the point where the statute of limitations begins to run."

In Heisler, the defendant physician performed a laminectomy on a patient in September 1972 and left a piece of broken needle in his back. For six years the defendant and patient had no contact, but during that period the patient, on his own initiative, consulted two neurosurgeons and sought treatment for his back from specialists at the Mayo Clinic. Thereafter, in 1978, the patient returned to the defendant for treatment, and then filed suit against him in 1979. Pointing to the plaintiff's interim reliance on other physicians over a six-year period, the Court concluded that the limitation period had expired, and explained:

"[T]he ongoing doctor-patient relationship and its accompanying air of trustfulness in one's own doctor ended in September of 1972. It is that date which should be used in calculating the statute of limitations.... To allow a single visit after six years to extend or revive the statute of limitations would invite abuse and stale claims." Id. at 634, 318 N.W.2d 503.

B

Since De Haan, this Court has not explored the contours of the last...