Rice v. Zimmer Mfg. Co.

• Decision Date: 21 November 1989
• Docket Number: Docket No. 99729
• Citation: 180 Mich.App. 681,447 N.W.2d 771
• Parties: Cynthia RICE, Plaintiff-Appellee, v. ZIMMER MANUFACTURING COMPANY, a foreign corporation, and St. Joseph Hospital West, Defendants, and John V. Corbett, M.D., Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

Page 771

447 N.W.2d 771

180 Mich.App. 681

Cynthia RICE, Plaintiff-Appellee, v. ZIMMER MANUFACTURING COMPANY, a foreign corporation, and St Joseph Hospital West, Defendants and John V. Corbett, M.D., Defendant-Appellant.

Docket No. 99729.

Court of Appeals of Michigan.

Submitted March 14, 1989.

Decided June 21, 1989.

Released for Publication Nov. 21, 1989.

John R. Urso & Associates, P.C. by Mary Roy Kelly and John R. Urso, Detroit, for plaintiff-appellee.

Siemion, Huckabay, Bodary, Padilla & Morganti, P.C. by Raymond W. Morganti, Detroit, for defendant-appellant Corbett.

Before WAHLS, P.J., and REILLY and ALLEN, ^* JJ.

PER CURIAM.

Defendant John V. Corbett, M.D., appeals by leave granted from a March 12, 1987, order of the Macomb Circuit Court denying his motion for summary disposition filed under MCR 2.116(C)(7) on the ground that this lawsuit is barred by the two-year period of limitation applicable in medical malpractice cases. We reverse.

The record reveals that plaintiff, Cynthia Rice, was involved in a collision between an automobile and a motorcycle on August 1, 1982, from which she sustained a fractured right femur and other injuries. She was taken to defendant St. Joseph Hospital, West, for treatment, where Dr. Corbett performed an open reduction of the right femur and inserted an "intermedullary Schneider rod" which had been manufactured and sold by defendant Zimmer Manufacturing Company. Thereafter, plaintiff remained under the post-surgical care of Dr. Corbett, receiving treatment as necessary until August 8, 1983, on which date she made her last office visit. In Dr. Corbett's records for plaintiff's August 8, 1983, office visit, he wrote: "In view of the patient's decrease in symptoms I am going to recommend six months of additional treatment with the EBI unit and I'd like to see the patient three months from now for a clinical exam."

On September 2, 1983, plaintiff consulted with Edward Nebel, M.D., an orthopedic surgeon on the staff of Mercy Hospital in Port Huron. Plaintiff testified at her deposition that she consulted with Dr. Nebel for the purpose of obtaining a second opinion and that as of that date she had not yet decided to stop seeing Dr. Corbett and start seeing Dr. Nebel with regard to future treatment of her leg. On September 26, 1983, while plaintiff was shopping at Lakeside Mall, the rod which Dr. Corbett had inserted broke. Plaintiff telephoned Dr. Nebel's office from the mall and was advised to go to Mercy Hospital in Port Huron. At the hospital, Dr. Nebel removed the broken rod and inserted a new one. Thereafter, plaintiff treated with Dr. Nebel. She testified at her deposition that it was not until the rod broke on September 23, 1983, that she decided to stop treating with Dr. Corbett and start treating with Dr. Nebel.

Plaintiff filed the present malpractice lawsuit on September 13, 1985, alleging negligence on the part of Dr. Corbett, negligence and breach of warranty on the part of Zimmer Manufacturing Company, and liability on the part of St. Joseph Hospital, West, based on its negligence in providing a defective rod and based on Dr. Corbett's negligence as a staff physician. Dr. Corbett moved for summary disposition under MCR 2.116(C)(7), asserting that the suit was filed outside the applicable two-year period of limitation. The trial court denied Dr. Corbett's motion, finding that a question of fact existed regarding plaintiff's last day of treatment with Dr. Corbett, and this Court granted Dr. Corbett's application for leave to appeal. On appeal, Dr. Corbett argues that the trial court erred in failing to find that plaintiff's action is barred by the two-year period of limitation. We agree.

In Stapleton v. City of Wyandotte, 177 Mich.App. 339, 342-344, 441 N.W.2d 90

(1989), a case not dissimilar from the instant action, this Court stated:

The period of limitation for a malpractice action is set forth in M.C.L. § 600.5805; M.S.A. § 27A.5805:

"(1) A person shall not bring or maintain an action to recover damages for injuries to persons or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within the period of time prescribed by this section.

* * * * * *

"(4) Except as otherwise provided in this chapter, the period of limitations is 2 years for an action charging malpractice."

The accrual of plaintiff's claim in this case is determined under M.C.L. § 600.5838(1); M.S.A. § 27A.5838(1), as it appeared prior to its amendment in 1986:³

3. M.C.L. § 600.5838(1); M.S.A. § 27A.5838(1), as amended by 1986 P.A. 178, provides, in pertinent part:

"[A] claim based on the malpractice of a person who is, or holds himself or herself out to be, a member of a state licensed profession accrues at the time that person discontinues 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."

"A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession ... 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. [Emphasis added.]"

What constitutes "treating or otherwise serving" under § 38(1) is a matter of statutory construction and is a question of law for the courts. Coddington v. Robertson, 160 Mich App 406, 410; 407 NW2d 666 (1987). The essence of that phrase implies that the cessation of an ongoing physician-patient relationship marks the point at which the period of limitation begins to run. Pendell v. Jarka, 156 Mich 405, 409-410; 402 NW2d 23 (1986), lv den 428 Mich 880 (1987).

Regarding the purpose of periods of limitations and decisions whether to grant motions for summary disposition on the basis of the expiration of an applicable period of limitation, this Court has stated:

"The underlying purposes behind statutes of limitation are to require that complaints be filed within a reasonable time so that the opposing parties have a fair opportunity to defend, to relieve the court system from dealing with stale claims, and to protect potential defendants from protracted fear of litigation. Bigelow v. Walraven, 392 Mich 566, 576; 221 NW2d 328 (1974). In considering a motion for accelerated judgment based on a statute of limitations, the trial court is to consider the pleadings, affidavits, depositions, admissions and documentary evidence submitted by the parties. MCR 2.116(G)(5). The motion may not be granted if there exist material fact issues in dispute regarding discovery of the asserted malpractice. Kelleher v. Mills, 70 Mich App 360, 365; 245 NW2d 749 (1976). But if the facts are not in dispute, the issue whether the claim is statutorily barred becomes one of law for the court. Smith v. Sinai Hosp, 152 Mich App 716, 724-725; 394 NW2d 82 (1986). See also Schalm v. Mt Clemens Gen Hospital, 82 Mich App 669, 672; 267 NW2d 479 (1978). [Coddington, supra, 160 Mich.App. at p.p. 409-410, 407 N.W.2d 666.]"

Plaintiff in this case asserts that the two-year period of limitation does not bar her action, filed on September 13, 1985, against Dr. Corbett because "there was no cessation of the [physician-patient] relationship before September 26, 1983," the...