Schalm v. Mount Clemens General Hospital
| Decision Date | 18 April 1978 |
| Docket Number | Docket No. 77-1114 |
| Citation | 82 Mich.App. 669,267 N.W.2d 479 |
| Parties | Carl SCHALM and Ethel Jean Schalm, Individually and as Administratrix of the Estate of Carl A. Schalm, Deceased, Plaintiffs-Appellants, v. MOUNT CLEMENS GENERAL HOSPITAL, a Michigan Corporation, Robert C. Ward, D.O., John W. Phardel, D.O., Moufid Ragheb, M.D., Robert O. Fagen, D.O., Peter Rudnikoff, D.O., Christian F. Matthews, Jr., M.D., Robert F. Schmunk, J.D., and Daniel L. Rousseau, M.D., Defendants-Appellees. 82 Mich.App. 669, 267 N.W.2d 479 |
| Court | Court of Appeal of Michigan — District of US |
[82 MICHAPP 670] Dietrich, Cassavaugh, Fogelson & Perkins by Gary B. Perkins, Mt. Clemens, for plaintiffs-appellants.
J. P. O'Leary by Robert P. Siemion, Detroit, for Hospital.
[82 MICHAPP 671] Robert E. Dice, Detroit, for Ward, Phardel and Rudnikoff.
Charles F. Glass and Robert A. Obringer, Detroit, for Ragheb, Matthews, Rousseau and Fagen.
Edward M. Ranger, Detroit, for Schmunk.
Before T. M. BURNS, P. J., and CAVANAUGH and RILEY, JJ.
This is a medical malpractice action against Mt. Clemens General Hospital and eight individual doctors. Plaintiff 1 filed his complaint and four subsequent amended complaints seeking to recover for the alleged malpractice of the various defendants in the discovery and treatment of a cancer. On motions brought by defendants the trial court granted accelerated judgment, GCR 1963, 116.1(5), holding that all claims against the defendants were time barred under 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. 2
Our review of the trial court's determination is guided by two principles: first, under the above cited statutes, "an action based on malpractice by a state licensed person must be brought within two years of the time when such person 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, [82 MICHAPP 672] whichever is later", Dyke v. Richard, 390 Mich. 739, 747, 213 N.W.2d 185, 188 (1973); second, if disputed fact issues exist on either point of the statute of limitations analysis, summary dismissal by accelerated judgment is improper, Kelleher v. Mills, 70 Mich.App. 360, 245 N.W.2d 749 (1976).
The facts which apply to the statute of limitations question allow us to consider the defendants in two groups; those who treated plaintiff before February 1, 1971, 3 and those treating him after that date. 4 The asserted malpractice of the defendants in the first group is a failure to run appropriate tests and diagnose plaintiff's malady as cancer, rather than an ulcer, before plaintiff was told he had cancer on February 1, 1971. None of the doctors in this group treated plaintiff after January 14, 1971. They were made defendants in the original complaint filed on April 19, 1974, 5 the first 6 and second 7 amended complaints filed May 10, 1974, and September 15, 1975, respectively.
The alleged malpractice of the second group is failure to note a possible second cancer or to perform 8 an endoscopic exam in February of 1971. The exam was performed after seven months, in September of 1971, and a further cancer discovered which led to more surgery at that time. These defendants were brought into the case by the [82 MICHAPP 673] third 9 and fourth 10 amended complaints filed January 29, 1976, and June 15, 1976.
We turn our attention to the first group of doctors. None of these doctors treated plaintiff after January 14, 1971. The first complaint in this case was filed April 19, 1974. Obviously, unless there are fact questions under the "discovery" branch of the accrual rule, accelerated judgment as to these defendants was proper.
Defendants argue there are no fact questions. They argue that as a matter of law, plaintiff was put to inquiry about their possible malpractice in misdiagnosing his ailment when he was told he had cancer in February of 1971. Under this argument, plaintiff knew or should have known, of the asserted malpractice in the incorrect diagnosis as soon as the correct diagnosis was made. Primary reliance is placed on Johnson v. Caldwell, 371 Mich. 368, 123 N.W.2d 785 (1963) and Patterson v. Estate of Flick, 69 Mich.App. 101, 244 N.W.2d 371 (1976), lv. granted, 399 Mich. 838 (1977) and we admit that language in these cases supports this proposition, even though neither is a true misdiagnosis case. 11
[82 MICHAPP 674] Under Dyke, the question is when was the "asserted malpractice " discovered or, when should it have been discovered in the exercise of reasonable diligence. Does the fact that plaintiff is given a correct diagnosis always require that he be charged with notice that the earlier, and now known to be incorrect, diagnosis was malpractice? We think not.
There will be cases where no reasonable minds could differ on the discovery question and accelerated judgment would be proper in such a case. However, in this case there is some room to question whether plaintiff knew or should have known that this first group of doctors had committed malpractice when he was told of his true condition in February of 1971.
Plaintiff's knowledge of his true condition is but one factor in evaluating the question of reasonableness of his efforts to discover the asserted malpractice. See, e. g., Cates v. Frederick W. Bald Estate, 54 Mich.App. 717, 221 N.W.2d 474 (1974), lv. den., 394 Mich. 758 (1975), Patterson v. Estate of Flick, supra, (W. S. White, J., dissenting). Also relevant might be the plaintiff's mental state, assurances by medical personnel falling short of fraudulent concealment, and information received from others which show plaintiff was aware of the cause of action. 12
On the record before us, reasonable minds could differ as to the date plaintiff must be charged with knowledge of the asserted malpractice. Accelerated judgment as to this group of defendants was improper.
The same principles guide our analysis of the [82 MICHAPP 675] claims against the second group of doctors. Drs. Matthews and Schmunk continued to treat plaintiff, even after they were joined in this suit, until his death. However, it is unclear whether this treatment was "as to the matters out of which the claim for malpractice arose." 13 Given the circumstances of this case, we do not believe it is necessary to determine how broadly or narrowly those terms should be applied and again turn to the discovery portion of the accrual rule.
The three doctors involved in this part of the case were responsible for the diagnosis of plaintiff's cancer and the first surgery in February of 1971. Drs. Schmunk and Matthews were also responsible for performance of the endoscopic examination in September of 1971. This led to discovery of a second 14 cancerous area and its surgical removal. The alleged malpractice by Drs. Matthews and Schmunk is failure to read and act on a radiologist report prepared by Dr. Curatolo in February of 1971, which indicated the possibility of this second cancer and do the tests recommended in the report at that time rather than waiting until September of 1971. The alleged malpractice of Dr. Rousseau is failure to note the second cancer when he read the x-rays in February of 1971.
Although defendants argue that Dr. Curatolo's report was in the hospital file and, therefore, with reasonable diligence, plaintiff could have discovered their alleged malpractice long before they were actually brought into the suit in 1976, it [82 MICHAPP 676] appears that plaintiff (and plaintiff's counsel) first learned of the possibility that the second cancer was diagnosable in February of 1971 (as opposed to its actual discovery date in September of that year) when Dr. Curatolo was deposed on January 15, 1976. Defendants also argue that when the recommended exam was performed and the second cancer discovered in September of 1971, the failure to act in February of 1971 was readily apparent and, therefore, the statute of limitations should run from that date.
We reject the contention that because Dr. Curatolo's report was in the hospital file, a fact not...
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