Weaver by Weaver v. University of Michigan Bd. of Regents, Docket No. 132952

• Decision Date: 16 August 1993
• Docket Number: Docket No. 132952
• Citation: 506 N.W.2d 264,201 Mich.App. 239
• Parties: , 86 Ed. Law Rep. 405 Bobbie WEAVER, a minor, by her Next Friend, Marguerite WEAVER, Plaintiff-Appellant, v. UNIVERSITY OF MICHIGAN BOARD OF REGENTS, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 264

506 N.W.2d 264

201 Mich.App. 239, 86 Ed. Law Rep. 405

Bobbie WEAVER, a minor, by her Next Friend, Marguerite WEAVER, Plaintiff-Appellant, v. UNIVERSITY OF MICHIGAN BOARD OF REGENTS, Defendant-Appellee.

Docket No. 132952.

Court of Appeals of Michigan.

Submitted April 6, 1993, at Detroit.

Decided Aug. 16, 1993, at 9:55 a.m.

Released for Publication Oct. 19, 1993.

Sommers, Schwartz, Silver & Schwartz, P.C. by David R. Getto, Norman D. Tucker, and Ann M. Schoepfle, Southfield, for plaintiff-appellant.

Boothman, Hebert, Eller & Yockey, P.C. by Dale L. Hebert, Detroit, for defendant-appellee.

Before HOOD, P.J., and BRENNAN and CORRIGAN, JJ.

CORRIGAN, Judge.

In this medical malpractice action, plaintiff appeals the grant of summary disposition to defendant pursuant to MCR 2.116(C)(10). We affirm.

Plaintiff was diagnosed as hydrocephalic when she was six months old. In hydrocephalus, the normal flow of cerebrospinal fluid around the brain is impaired. If the condition remains untreated, permanent brain damage usually results. Plaintiff's condition was treated by the insertion of a shunt that drained the excess fluid from the area around the brain. The shunt was implanted in October 1980 by Dr. Dauser, a pediatric neurosurgeon associated with the University of Michigan Medical Center (hereafter the medical center), which is operated by defendant.

Following the surgery, plaintiff was periodically examined as an outpatient at the pediatric neurosurgery clinic until October 1982. Sometime after October 1982, but no later than 1985, plaintiff's mother transferred her neurological supervision and all medical records from the medical center to a neurosurgeon, Dr. Jakubiak, who was located closer to the plaintiff's family home. Dr. Jakubiak saw plaintiff twice before the events that gave rise to the present action.

On February 27, 1987, plaintiff complained to her mother that she could not see. The episode passed. Plaintiff saw her pediatrician on March 2. The pediatrician scheduled a skull X-ray and a CAT scan on March 9 at a local hospital. Dr. Jakubiak saw plaintiff the same day. He concluded that the shunt had become disconnected, that the disconnection was unrelated to plaintiff's vision disturbance, and that no emergency existed. He recommended that plaintiff seek "a second opinion" from the medical center and that she see an ophthalmologist regarding her vision disturbance.

On the same day, plaintiff's father called Dr. Dauser's office at the medical center and spoke to a secretary, Geraldine O'Neill. Plaintiff's father knew that Ms. O'Neill was not a member of the medical staff. He told her that plaintiff's shunt had become disconnected and that she was experiencing intermittent vision problems. He then requested an appointment for a second opinion. He also told Ms. O'Neill that plaintiff had already seen Dr. Jakubiak, who did not consider the case an emergency. Ms. O'Neill initially offered plaintiff an appointment for about one month later, but Mr. Weaver asked for an earlier date. After a brief interruption in their conversation, Ms. O'Neill offered plaintiff an appointment for March 16, 1987. On March 16, Dr. Dauser saw plaintiff, diagnosed an elevation in intracranial pressure, and recommended emergency surgery. The surgery was performed, but plaintiff unfortunately suffered a permanent and nearly total loss of vision.

Plaintiff brought suit in the circuit court against her pediatrician, Dr. Jakubiak, and the local hospital where the x-ray and CAT scan were performed. She filed a separate action against the medical center in the Court of Claims. The two actions were later joined. All defendants in the circuit court action settled the claims and are no longer parties to the suit. The court granted the medical center's motion for summary disposition on the grounds that no physician-patient relationship existed between it and plaintiff on March 9, 1987.

A motion for summary disposition under MCR 2.116(C)(10) tests the factual support for a claim. The court must consider the pleadings, affidavits, depositions, admissions, and other documentary evidence available to it and grant summary disposition if there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. AFL-CIO v. Civil Service Comm., 191 Mich.App. 535, 546-547, 478 N.W.2d 722 (1991); Panich v. Iron Wood Products Corp., 179 Mich.App. 136, 139, 445 N.W.2d 795 (1989).

It is hornbook law that no cause of action for negligence exists unless the defendant owes a legal duty to the plaintiff. See, e.g., Lorencz v. Ford Motor Co., 439 Mich. 370, 375, 483 N.W.2d 844 (1992). The term "malpractice" denotes a breach of the duty owed by one rendering professional services to a person who has contracted for such services. Hill v. Kokosky, 186 Mich.App. 300, 303, 463 N.W.2d 265 (1990); Malik v. William Beaumont Hosp., 168 Mich.App. 159, 168, 423 N.W.2d 920 (1988). A professional physician-patient relationship is a legal prerequisite of a cause of action for medical malpractice. Hill, supra, 186 Mich.App. at 303, 463 N.W.2d 265. See, generally, anno: What constitutes physician-patient relationship for malpractice purposes, 17 ALR4th 132.

Plaintiff contends that a telephone call to schedule an appointment with a provider of medical services gives rise to a physician-patient relationship that can serve as the basis for a claim of medical malpractice. The question is one of first impression in Michigan. We hold that a telephone call merely to schedule an appointment with a provider of medical services does not by itself establish a physician-patient relationship where the caller has no ongoing physician-patient relationship with the provider and does not seek or obtain medical advice during the conversation.

Cases governed by M.C.L. § 600.5805(4); M.S.A. § 27A.5805(4) and M.C.L. § 600.5838a; M.S.A. § 27A.5838(1), relating to limitation of actions for medical malpractice, provide a starting point for analysis. In Thomas v. Golden (Amended Opinion), 51 Mich.App. 693, 214 N.W.2d 907 (1974), aff'd but reasoning not adopted 392 Mich. 779, 220 N.W.2d 677 (1974), the plaintiff had been fitted for contact lenses by the defendant, an optometrist, in February 1968. Id. 51 Mich.App. at 694, 214 N.W.2d 907. She experienced problems with the lenses and requested an appointment on March 7. The defendant's office scheduled a March 8 appointment. Plaintiff's condition worsened, so she instead sought treatment at a hospital emergency room on the night of March 7. Id. She filed suit on March 5, 1970. At the relevant time, the applicable statute, M.C.L. § 600.5838; M.S.A. § 27A.5838, provided that "[a] claim based on ... malpractice ... accrues at the time that person discontinues treating or otherwise serving the plaintiff." This Court held that the suit was timely because making an appointment constituted "otherwise serving" "within the meaning of the statute." Id. at 695, 214 N.W.2d 907. The Court did not decide, however, whether the defendant had been "treating" the plaintiff when he made the appointment for her.

The value of the Thomas decision is clouded because the Supreme Court expressly declined to affirm this Court's reasoning. See also Rice v. Zimmer Mfg. Co., 180 Mich.App. 681, 687, 447 N.W.2d 771 (1989) ("mere suggestion" that the plaintiff return for further care did not constitute treatment or professional service); Stapleton v. Wyandotte, 177 Mich.App. 339, 344, 441 N.W.2d 90 (1989) (advice to make an appointment for a checkup did not extend the physician-patient relationship).

This Court has also examined the effect of a telephone call on the physician-patient relationship in several other cases involving the statute of limitations. In Shane v. Mouw, 116 Mich.App. 737, 323 N.W.2d 537 (1982), the defendant had last examined the plaintiff on May 3, 1977, when the plaintiff's son called the defendant on August 7. Id. at 741, 323 N.W.2d 537 (MacKenzie, J., dissenting). The defendant offered the plaintiff a prescription, but declined to hospitalize her. She was then treated by another physician. In her suit filed on August 2, 1979, she argued that the phone call constituted "treatment or other services." Id. at 742, 323 N.W.2d 537. In a split decision, this Court concluded that the phone call "appear[ed] to have been an attempt by defendant to continue treating plaintiff's condition," and that the suit was timely. Id. at 741, 323 N.W.2d 537.

The Shane Court relied in part on DeGrazia v. Johnson, 105 Mich.App. 356, 306 N.W.2d 512 (1981). In that case, the plaintiff had knee surgery in February and March of 1976. In June 1976, he spoke by telephone to the defendant doctor about his knee. He filed suit in May of 1978. This Court held that the statutory period of limitation did not begin to run until the June phone call. "[I]t was not until that time that defendant discontinued 'treating or otherwise serving the plaintiff.' " Id. at 360, 306 N.W.2d 512.

Recently, however, this Court rejected a single telephone conversation as a basis for extending the accrual date for a medical malpractice claim. In Griffith v. Brant, 177 Mich.App. 583, 586-587, 442 N.W.2d 652 (1989), the plaintiff called her surgeon regarding her postsurgical progress in June 1984 and filed suit in August 1986. The Court concluded that the telephone conversation did not constitute "treatment or otherwise serving" within the meaning of M.C.L. § 600.5838(1); M.S.A. § 27A.5838(1).

All this Court's "telephone" cases are easily distinguishable from the situation in the present case. In all the other cases, the plaintiffs sought and received medical advice over the phone. The telephone calls could thus be considered another form of consultation with the professional involved, an extension of an existing physician-patient relationship. Compare Hill v. Kokosky, supra, where the Court found that a phone call from one physician to...