Sills v. Oakland General Hosp.

• Decision Date: 26 November 1996
• Docket Number: Docket No. 185553
• Citation: 559 N.W.2d 348,220 Mich.App. 303
• Parties: Muriel SILLS and Thomas Sills, Plaintiffs-Appellant, v. OAKLAND GENERAL HOSPITAL, Howard S. Glazer, D.O., Dennis Kelly, D.O., Simon Simonian, D.O., and Harold P. Finkel, D.O., Defendants-Appellees.
• Court: Court of Appeal of Michigan — District of US

Page 348

559 N.W.2d 348

220 Mich.App. 303

Muriel SILLS and Thomas Sills, Plaintiffs-Appellant, v. OAKLAND GENERAL HOSPITAL, Howard S. Glazer, D.O., Dennis Kelly, D.O., Simon Simonian, D.O., and Harold P Finkel, D.O., Defendants-Appellees.

Docket No. 185553.

Court of Appeals of Michigan.

Submitted Sept. 18, 1996, at Detroit.

Decided Nov. 26, 1996, at 9:40 a.m.

Released for Publication Feb. 25, 1997.

Alspector, Sosin, Mittenthal & Barson, P.C. by Robert M. Sosin and Gabriel R. Locher, Bingham Farms, for plaintiffs-appellant.

Kitch, Drutchas, Wagner & Kenney, P.C. by Linda M. Garbarino and Robert A. Fehniger, Mt. Clemens, for Oakland General Hospital and Dennis Kelly, D.O.

Feikens, Vander Male, Stevens, Bellamy & Gilchrist, P.C. by L. Neal Kennedy and Michael P. Citrin, Detroit, for Howard S. Glazer, D.O.

Hill Lewis by David M. Lawson, Birmingham, for Simon Simonian, D.O.

Schwartz & Jalkanen, P.C. by Karl E. Hannum and Deborah Laura Rhodes, Southfield, for Howard P. Finkel, D.O.

Before SAAD, P.J., and CORRIGAN and R.A. BENSON, ^* JJ.

CORRIGAN, Judge.

In this medical malpractice action, plaintiffs appeal by right the order granting summary disposition to defendants under MCR 2.116(C)(7) because plaintiffs' complaint was untimely under M.C.L. § 600.5838a(2); M.S.A. § 27A.5838(1)(2). We affirm.

I. UNDERLYING FACTS

In 1987, forty-one-year-old plaintiff Muriel Sills, who had a twenty-year history of back trauma and back surgeries, complained of back pain and difficulty walking. Defendant Dr. Howard Glazer admitted plaintiff ¹ to defendant Oakland General Hospital on July 16, 1987. That same day, defendant Dr. Dennis Kelly evaluated plaintiff and ordered the administration of Solu-Medrol, a steroid. One potential side effect of the use of steroids is necrosis. ² From July 16 through July 28, plaintiff received varying doses of the steroid. ³ During this time, defendants Dr. Simon Simonian and Dr. Harold Finkel each provided a consultation. On July 30, 1987, plaintiff discharged herself from Oakland General Hospital because she was dissatisfied with her progress. She continued to see defendant Glazer.

In 1991, plaintiff complained to Glazer of pain and swelling in her legs and knees. In May, 1993, Glazer ordered an x-ray of plaintiff's right knee. Glazer told plaintiff that in his opinion she had arthritis. In October 1993, Kelly ordered a Magnetic Resonance Imaging (MRI) of plaintiff's right knee. The MRI revealed osteonecrosis (a change in bone and cartilage), which can be caused by steroid use. Doctors eventually replaced plaintiff's right knee.

In her March 1994 suit, plaintiff alleged in part that in 1987 defendants failed to provide the proper diagnosis, improperly ordered extremely high doses of steroids, and neglected to warn her of the risks of steroids. The circuit court granted summary disposition for defendants, ruling that plaintiff's action was untimely under the statute of limitation, M.C.L. § 600.5838a(2); M.S.A. § 27A.5838(1)(2). The court also ruled that defendants' conduct did not meet the fraudulent conduct standard under M.C.L. § 600.5838a(2)(a); M.S.A. § 27A.5838(1)(2)(a). Plaintiff appeals.

II. ANALYSIS

Plaintiff first argues that defendants did not assert as an affirmative defense the statute of repose upon which they rely on appeal. Plaintiff contends that, because the Legislature has recognized a distinction between a statute of limitation and a statute of repose, defendants should have referenced the statute as one of repose rather than limitation.

Defendants moved for summary disposition under MCR 2.116(C)(7); such a motion asserts that the cause of action is statutorily barred. Witherspoon v. Guilford, 203 Mich.App. 240, 243, 511 N.W.2d 720 (1994). When reviewing a motion under MCR 2.117(C)(7), this Court must accept the plaintiff's well-pleaded allegations as true and construe them in the plaintiff's favor. If the facts are not in dispute, whether the statute bars the claim is a question of law for the court. Witherspoon, supra at 243, 511 N.W.2d 720. We review questions of law under the de novo standard. Rapistan Corp. v. Michaels, 203 Mich.App. 301, 306, 511 N.W.2d 918 (1994).

M.C.L. § 600.5838a(2); M.S.A. § 27A.5838(1)(2) provides in part:

Except as otherwise provided in this subsection, an action involving a claim based on medical malpractice may be commenced at any time within the applicable period prescribed in section 5805 or sections 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. However, except as otherwise provided in section 5851(7) or (8), the claim shall not be commenced later than 6 years after the date of the act or omission that is the basis for the claim. The burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition, or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim is on the plaintiff. A medical malpractice action that is not commenced within the time prescribed by this subsection is barred.

Plaintiff contends that M.C.L. § 600.5838a(2); M.S.A. § 27A.5838(1)(2) is a statute of repose, not limitation. A statute of repose prevents a cause of action from ever accruing when the injury is sustained after the designated statutory period has elapsed. O'Brien v. Hazelet & Erdal, 410 Mich. 1, 15, 299 N.W.2d 336 (1980). A statute of limitation, however, prescribes the time limits in which a party may bring an action that has already accrued. Id.; Smith v. Quality Const. Co., 200 Mich.App. 297, 300-301, 503 N.W.2d 753 (1993). Here, M.C.L. § 600.5838a(2); M.S.A. § 27A.5838(1)(2) serves both functions: it prescribes the time limit in which a plaintiff who is injured within the statutory period must bring suit and also prevents a plaintiff from bringing suit if she sustained an injury outside the statutory period. Because the statute is both a statute of limitations and a statute of repose, defendants were not obliged to refer specifically to their defense as a statute of repose.

Moreover, plaintiff claims that her injury occurred in 1987, when defendants treated her with steroids during her hospitalization. M.C.L. § 600.5838a(2); M.S.A. § 27A.5838(1)(2) bars her cause of action because plaintiff brought suit outside the statutory period after sustaining injury. M.C.L. § 600.5838a(2); M.S.A. § 27A.5838(1)(2) thus acted as a statute of limitation in this case. Defendants raised the statute of limitation as an affirmative defense. Plaintiff's argument that defendants did not refer to M.C.L. § 600.5838a(2); M.S.A. § 27A.5838(1)(2) as a statute of repose is thus immaterial here. Likewise, plaintiff's claim that defendants did not give her sufficient notice of their statutory defense is without merit. Defendants properly asserted the statute as an affirmative defense. MCR 2.111(F)(3)(a).

Plaintiff next attacks the circuit court's finding that defendants did not engage in fraudulent conduct. Plaintiff asserts that defendants prevented her from discovering the existence of her claim by failing to inform her of the risk of steroids. Plaintiff adds that Glazer misrepresented her condition by diagnosing arthritis rather than necrosis.

M.C.L. § 600.5838a(2)(a); M.S.A. § 27A.5838(1)(2)(a) provides that the limitation period does not apply "[i]f discovery of the existence of the claim was prevented by the fraudulent conduct of the health care professional against whom the claim is made ... or of the health facility against whom the claim is made...." Thus, if plaintiff demonstrates that defendants displayed fraudulent conduct, her claim survives the statutory limitation period.

This Court has not yet interpreted "fraudulent conduct" as it is used in M.C.L. § 600.5838a(2)(a); M.S.A. § 27A.5838(1)(2). To define fraudulent conduct, we look to cases involving the limitation period and fraudulent concealment under M.C.L. § 600.5855; M.S.A. § 27A.5855. ⁴ Courts consider together statutes that have the same general purpose when ascertaining the intent of the Legislature. In re Miller Estate, 359 Mich. 167, 172, 101 N.W.2d 381 (1960). Additionally, statutes that affect similar policies should be interpreted in a like manner. Swantek v. Automobile Club of Michigan Ins. Group, 118 Mich.App. 807, 810, 325 N.W.2d 588 (1982).

Under M.C.L. § 600.5855; M.S.A. § 27A.5855, the statute of limitation is tolled when a party conceals the fact that the plaintiff has a cause of action. Smith v. Sinai Hosp. of Detroit, 152 Mich.App. 716, 727, 394 N.W.2d 82 (1986). The plaintiff must plead in the complaint the acts or misrepresentations that comprised the fraudulent concealment. In re Farris Estate, 160 Mich.App. 14, 18, 408 N.W.2d 92 (1987). The plaintiff must prove that the defendant committed affirmative acts or misrepresentations that were designed to prevent subsequent discovery. Mere silence is insufficient. Buszek v. Harper Hosp., 116 Mich.App. 650, 654, 323 N.W.2d 330 (1982).

In her complaint, plaintiff did not claim that defendants affirmatively acted or made misrepresentations to prevent her from discovering the alleged malpractice. Although plaintiff claimed that defendants failed to inform her of the risks of steroids, that allegation was part of her general claim of malpractice, not a claim of fraud. While Glazer may have misdiagnosed plaintiff's condition, plaintiff did not show that he acted fraudulently to conceal her potential cause of action. A misdiagnosis is not an affirmative act to conceal a claim. Plaintiff has not sufficiently asserted that defendants committed fraudulent conduct so as to toll the statute of limitation.

Plaintiff next asserts that she did not discover, nor should she have discovered, the existence of her claim at least six months before the limitation period expired. Plaintiff contends that the...