Solowy v. Oakwood Hosp. Corp.
| Decision Date | 29 April 1997 |
| Docket Number | Docket No. 102964,No. 7,7 |
| Citation | 561 N.W.2d 843,454 Mich. 214 |
| Parties | Lucille SOLOWY, Plaintiff-Appellant, v. OAKWOOD HOSPITAL CORPORATION, a Michigan corporation, Thomas Chapel, M.D., and Johanna Chapel, M.D., Defendants-Appellees. Calendar |
| Court | Michigan Supreme Court |
Rifkin & Rifkin, P.C. by B. Andrew Rifkin, Southfield, for Plaintiff-Appellant.
Kitch, Drutchas, Wagner & Kenney, P.C. by Susan Healy Zitterman, Detroit, and
Kerr, Russell & Weber, P.L.C. by Stephen D. McGraw and Joanne Geha Swanson, Detroit, for Defendants-Appellees.
We granted leave to appeal to determine whether the plaintiff's claim is barred under the six-month discovery rule applicable to her medical malpractice suit. M.C.L. § 600.5838a(2); M.S.A. § 27A.5838(1)(2). Specifically, we must decide whether the six-month discovery rule period began to run when plaintiff learned of two possible causes for her lesion, one potentially actionable and one not, or whether it began to run only after her physician confirmed the potentially actionable diagnosis. Plaintiff filed her suit more than six months after learning that one of the two possible diagnoses was potentially actionable, but less than six months after her physician confirmed the potentially actionable diagnosis. While we caution that there may be circumstances where the six-month period will not begin to run until a more definitive diagnosis is obtained, we conclude in the present case that the period began to run when the plaintiff learned that one of two possible diagnoses for her lesion was potentially actionable because it was at this point that she should have discovered a possible cause of action. Moll v. Abbott Laboratories, 444 Mich. 1, 506 N.W.2d 816 (1993); Gebhardt v. O'Rourke, 444 Mich. 535, 510 N.W.2d 900 (1994). We further conclude that when the plaintiff should have discovered her claim is a question of law for resolution on summary disposition because the facts relevant to determining the issue were undisputed. Consequently, we affirm the Court of Appeals decision that plaintiff's suit is barred.
On September 14, 1986, plaintiff Solowy visited a clinic owned by defendant Oakwood Hospital for diagnosis and treatment of a lesion on her left outer ear. Defendant Thomas Chapel, M.D., examined and removed the lesion and, after obtaining biopsy results, confirmed the diagnosis as basal cell carcinoma. The plaintiff continued treatment with him or with codefendant Johanna Chapel, M.D., his wife and colleague, until her last visit on October 9, 1986. According to the plaintiff, Dr. Thomas Chapel assured her during the course of her treatment that the cancer was "gone" and that there was no chance of it recurring. She also claims that the defendant doctors failed to advise that she should return for further follow-up or treatment.
In January 1992, about five years after her last treatment with the defendant doctors, the plaintiff discovered a similar lesion on her left ear at approximately the same site. She described her symptoms as being nearly identical to those she experienced five years earlier, explaining in her deposition that she felt that "it started all over again." On March 27, 1992, approximately two months after first discovering the new lesion, the plaintiff consulted a dermatologist, Dr. Katherin Laing. At this initial visit, Dr. Laing advised her that there were two possible diagnoses for the lesion, either the basal cell carcinoma had recurred, or it was noncancerous seborrheic keratosis. 1 Dr. Laing took a tissue sample and ordered a biopsy. On April 9, 1992, Dr. Laing informed the plaintiff that the lesion was indeed a recurrence of cancer. On July 14, 1992, the plaintiff underwent surgery to remove the cancer. Because the cancer had invaded deeper tissues, the surgeon had to remove the entire top portion of the plaintiff's left outer ear in order to remove all the cancer.
On October 5, 1992, the plaintiff filed this medical malpractice lawsuit, alleging that the defendant doctors' representations to her that her cancer would not recur caused her to delay seeking treatment, resulting in a more radical and disfiguring surgery than would have been required if she had sought treatment earlier. Defendants moved for summary disposition on the ground that the claim was barred by the statute of limitations, having been filed more than two years after the date of last treatment and more than six months after the plaintiff discovered or should have discovered her claim. The trial court granted summary disposition for the defendants, concluding that pursuant to this Court's decision in Moll, the latest that the plaintiff should have discovered a possible cause of action was March 27, 1992, when Dr. Laing told her that the lesion could be a recurrence of cancer. Because plaintiff filed more than six months after that date, the suit was barred.
Plaintiff appealed, arguing that the six-month discovery period did not begin to run until April 9, 1992, when Dr. Laing confirmed and informed her of the diagnosis. She argued that, because she filed her suit within six months of the date that Dr. Laing confirmed her diagnosis, the suit was timely. The Court of Appeals affirmed the grant of summary disposition:
As more than two years had expired since the last day of treatment by defendants, plaintiff had six months from the time she discovered a "possible" cause of action in which to file this lawsuit. Gebhardt v. O'Rourke, 444 Mich. 535, 544 (1994). On the basis of objective facts, plaintiff should have known of an injury on the first day she visited her dermatologist; that the suspicions engendered at that time were later confirmed does not affect the commencement of the six-month discovery period which earlier occurred. Moll v. Abbott Laboratories, 444 Mich. 1, 18 (1993). Plaintiff therefore had until not later than September 27, 1992, to file her cause of action; [because] this cause of action commenced on October 5, 1992, [it] was untimely and summary disposition was properly granted. [Unpublished order of the Court of Appeals, entered April 20, 1995 (Docket No. 171123).]
Plaintiff now appeals in this Court. She argues that (1) the "possible cause of action" standard relied on by the Court of Appeals should not apply in medical malpractice cases, (2) the lower courts misapplied the standard to her case, holding her to a higher standard than that applicable to her own treating physician because not even her physician could have known of a possible cause of action until after the biopsy confirmed the diagnosis, and (3) because the parties disputed facts concerning when she should have discovered a cause of action, summary disposition was not proper.
Before examining plaintiff's arguments, we will review the limitation provisions controlling in this case.
In general, a plaintiff in a medical malpractice case must bring his claim within two years of when the claim accrued, or within six months of when he discovered or should have discovered his claim. M.C.L. § 600.5805(4); M.S.A. § 27A.5805(4) and M.C.L. § 600.5838; M.S.A. § 27A.5838.
The general limitation period for malpractice actions provides that a plaintiff must bring his action within two years of when the claim first accrues. M.C.L. § 600.5805(1), (4); M.S.A. § 27A.5805(1), (4). For acts of malpractice occurring before October 1, 1986, the claim accrues on the date that the defendant "discontinue[d] 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." M.C.L. § 600.5838(1); M.S.A. § 27A.5838(1).
On October 1, 1986, an accrual provision specific to medical malpractice claims became effective. This provision states that medical malpractice claims accrue "at the time of the act or omission that is the basis for the claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim." M.C.L. § 600.5838a(1); M.S.A. § 27A.5838(1)(1). Thus, for acts or omissions giving rise to a claim of malpractice occurring before October 1, 1986, the claim accrues for purposes of the two-year limitation period on the last date of professional services. For acts or omissions giving rise to a claim of malpractice occurring after October 1, 1986, the claim accrues on the date of the alleged act or omission giving rise to the claim.
In this case, Drs. Chapel treated the plaintiff both before and after October 1, 1986, with the last date of treatment having occurred on October 9, 1986. Regardless of whether the allegedly negligent acts or omissions occurred before or after October 1, 1986, plaintiff's suit would be barred under the relevant two-year provision. The latest possible accrual date is October 9, 1986, the last date that defendants rendered professional services. In order to have timely commenced this action within the two-year period, plaintiff would have had to file her suit on or before October 9, 1988. Because the complaint was not filed until nearly four years later, on October 5, 1992, the claim is barred unless plaintiff can prove that she filed her claim within six months of when she discovered or should have discovered her claim.
The six-month discovery rule applicable to this claim provides:
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. [M.C.L. § 600.5838a(2); M.S.A. § 27A.5838(1)(2).] [ 2]
Applying this subsection, the Court of Appeals determined that the...
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