Patterson v. Flick's Estate, Docket No. 22324

• Decision Date: 27 May 1976
• Docket Number: Docket No. 22324
• Citation: 244 N.W.2d 371,69 Mich.App. 101
• Parties: Margaret PATTERSON, Plaintiff-Appellant, v. ESTATE of John Rupert FLICK, M.D., Deceased, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 371

244 N.W.2d 371

69 Mich.App. 101

Margaret PATTERSON, Plaintiff-Appellant, v. ESTATE of John Rupert FLICK, M.D., Deceased, Defendant-Appellee.

Docket No. 22324.

Court of Appeals of Michigan.

May 27, 1976.

Released for Publication Aug. 11, 1976.

Marston, Sachs, O'Connell, Nunn & Freid, P.C., by Barry P. Waldman, Detroit, for plaintiff-appellant.

David Getto, Detroit, for defendant-appellee.

Before BASHARA, P.J., and WALSH and WHITE, ^* JJ.

BASHARA, Judge.

We adopt the statement of facts from the dissenting opinion of Judge White. However, we cannot agree with the result reached by Judge White.

In Michigan a cause of action based on malpractice against a state licensed physician must be brought within two years of the time when the physician discontinues treating or otherwise serving the plaintiff, or within two years of the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later. Dyke v. Richard, 390 Mich. 739, 747, 213 N.W.2d 185 (1973).

The complaint alleges negligence on the part of Dr. Flick in severing the appellant's femoral nerve during an appendectomy in April of 1969. As a matter of law the appellant discovered the asserted malpractice when she was informed by Dr. Flick immediately following the operation that he severed the nerve and she experienced paralysis and numbness in her right leg. Dr. Flick continued to treat the appellant for approximately one more year.

The litigation in the case at bar commenced in November of 1973, approximately 4 1/2 years after discovery of the asserted malpractice and 3 1/2 years after discontinuance of treatment by Dr. Flick. The trial judge correctly granted accelerated judgment, GCR 1963, 116.1(5), on the ground the action was barred by the statute of limitations. M.C.L.A. § 600.5805(3); M.S.A. § 27A.5805(3), and M.C.L.A. § 600.5838; M.S.A. § 27A.5838. Dyke v. Richard, supra.

We believe that if the discovery rule is expanded to the extent suggested in the dissenting opinion, it would virtually be impossible to obtain accelerated judgment grounded on the statute of limitations. Most people do not recognize the fact that they have suffered an 'invasion of a legal right' until they consult with an attorney. To forestall the running of the statute of limitations to that point would, for all practical purposes, abolish the statute of limitations in medical malpractice cases.

Nor do we agree with appellant's contention that Dr. Flick fraudulently concealed the malpractice tolling the statute of limitations. M.C.L.A. § 600.5855; M.S.A. § 27A.5855. Fraudulent concealment requires actions of an affirmative character to purposely conceal the right of action from the plaintiff. De Haan v. Winter, 258 Mich. 293, 241 N.W. 923 (1932). Appellant's complaint failed to allege that Dr. Flick intentionally concealed the cause of action.

Affirmed. Costs to appellees.

WHITE, Judge (dissenting).

In April of 1969, the plaintiff, Margaret Patterson, underwent an appendectomy. During the course of this operation, her right femoral nerve was first severed and then resutured by the surgeon, Dr. John R. Flick, now deceased.

Upon her arousal from the anesthetic, the plaintiff was informed of this unexpected complication by Dr. Flick himself. The immediate effects of the injury were readily apparent to the plaintiff; she could neither move nor had any feeling in her right leg. The doctor, however, told the plaintiff's mother that she would be all right. During post-operative period, the doctor assured the plaintiff that she was not permanently crippled but that recovery would be slow. He explained to her the importance of the femoral nerve and the functions it performs as part of the leg's nervous system. The plaintiff recalls that the excuse tendered for the mishap was that the nerve was wrapped around the appendix in an extremely freakish fashion and that the doctor was unaware of its presence until the damage had already been done.

The plaintiff's condition improved over the next year. By May of 1970 she was able to walk quite well but still suffered a loss of sensation. Although the plaintiff saw numerous other doctors subsequent to her operation, she never requested an examination of her leg. In fact, it was not until June of 1973 that the plaintiff sought additional consultation with specific reference to the injured appendage and then only when it became swollen and painful to walk upon. During this latter examination, the plaintiff was told that she would never recover the total use of her leg and was advised to consult an attorney.

This suit was filed in November of 1973 alleging malpractice on the part of Dr. Flick. The defendant replied with a motion for accelerated judgment alleging that since two years had passed since the cause of action accrued, the statute of limitations had expired and plaintiff's suit was barred. ¹

Following extensive oral argument and the submission of briefs, the trial court granted the defendant's motion and dismissed the case with prejudice. The learned trial judge noted in passing that it was 'a very close case * * * a borderline affair'. Nevertheless, the plaintiff 'did know the nerve had been cut, and she knew what the results were, and they were substantial'.

From this dismissal the plaintiff now appeals raising, in essence, two questions for consideration. They will be discussed Seriatim.

I

The plaintiff contends that the so-called 'Discovery Rule' prevents the judicial imposition of accelerated judgment and that a jury must settle certain fundamental factual issues before such a motion may be decided. GCR 1963, 116.3. Since my analysis of the relevant authorities reveals the need for some clarification of this rule, I will delve briefly into its origins and rationale.

The 'Discovery Rule' evolved out of judicial efforts to grapple with the litigationally famous 'Lost Sponge' cases and related problems. Byers v. Bacon, 250 Pa. 564, 95 A. 711 (1915), and Huysman v. Kirsch, 6 Cal.2d 302, 57 P.2d 908 (1936). Courts came to recognize that, in certain situations, traditional concepts of limitations of actions led "to harsh injustices and (afforded) a cloak for the careless and ignorant". Huysman, supra, 6 Cal.2d [69 Mich.App. 107] at 306, 57 P.2d at 910, citing Huysman v. Kirsch, 47 P.2d 332 334 (Cal.App.1935). A patient could be operated upon and stoically suffer mysterious and debilitating consequences for years afterward. Alas, by the time the cause of the malady was found to be an errant surgical implement rather than disease or external injury, the patient's cause of action had become a victim of the statute of limitations.

In response to this sad state of affairs, the Supreme Court of California announced the rule that the statute of limitations in malpractice cases would not run so long as the patient was 'in ignorance of the cause of his disability and could not with reasonable care and diligence ascertain such cause'. Huysman, supra, 6 Cal.2d at 312, 57 P.2d at 913.

While at first limited to cases in which a foreign body was negligently left in the body, the 'Discovery Rule' has since been expanded to include negligent introduction of drugs or medication, Agnew v. Larson, 82 Cal.App.2d 176, 185 P.2d 851 (1947); negligent diagnosis, Calvin v. Thayer, 150 Cal.App.2d 610, 310 P.2d 59 (1957); and injury to noninvolved organs during surgery, Dobbins v. Clifford, 39 A.D.2d 1, 330 N.Y.S.2d 743 (1972). See 80 A.L.R.2d 368, § 7 (supps. 1969 and 1975).

Michigan adopted the discovery rule in its mature form in 1963 and applied it to a case of negligent diagnosis. Johnson v. Caldwell, 371 Mich. 368, 123 N.W.2d 785 (1963). Justice O'Hara said:

'Simply and clearly stated the discovery rule is: 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, the plaintiff should have discovered the wrongful act.' 371 Mich. at 379, 123 N.W.2d at 791.

The rule has since become firmly established as a judicially carved exception to the statutory provisions which govern limitation of actions in malpractice cases. Dyke v. Richard, 390 Mich. 739, 213 N.W.2d 185 (1973). Yet, despite its apparent simplicity, the parties to the instant case have pointed out the need for additional clarification.

In Johnson, supra, it was held that the statute of limitations did not commence to run until the patient knew or was charged with knowing that a 'wrongful act' had been committed. In Dyke, supra, the court chose to describe the necessary quantum of knowledge as knowledge of the 'asserted malpractice'. The Dyke opinion also contains the following:

'As to a person who does not know, or in the exercise of reasonable diligence could not ascertain within the two year period that he has a Cause of action, this statute has the effect of abolishing his right to bring suit.' (Emphasis supplied.) 390 Mich. at 746--747, 213 N.W.2d at 188.

Other jurisdictions have added to the confusion. Under Federal law, the statute begins to run when the plaintiff discovers, or should have discovered, the 'acts' which constitute the alleged malpractice. Ashley v. United States, 413 F.2d 490 (CA 9, 1969), Qyinton v. United States, 304 F.2d 234 (CA 5, 1962). In Delaware, the crucial moment is 'when the harmful effect first manifests itself and becomes physically ascertainable'. Layton v. Allen, 246 A.2d 794, 798 (Del.1968). The Hawaiian courts have held that a cause of action accrues when the plaintiff knows or should know of defendant's 'negligence'. Yoshizaki v. Hilo Hospital, 50 Haw. 150, 433 P.2d 220, 223 (Hawaii, 1967).

While it might be argued that the various formulae set forth above are meant to be synonymous, so long as the phrases are bandied about like shuttlecocks, the courts, counsel and their clients will continue to be ill-served. To remedy this situation, it...