Reversed.
Background
“On June 12, 2013, plaintiff’s
decedent Kelly Bowman (Kelly) underwent a mammogram and an ultrasound because
of a lump in her right breast. Defendant Dr. Tushar S. Parikh, M.D.,
interpreted the mammogram and opined that the lump was benign. Specifically,
Dr. Parikh’s diagnostic report stated: ‘The breasts are heterogeneously dense. In
the areas of dense fibroglandular tissue, non[-]calcified lesions might be
obscured. No areas of architectural distortion or abnormal calcifications are
seen. Subtle nodularity in the upper outer right breast is noted. Ultrasound
was performed showing benign[-] appearing cysts. SUMMARY: Benign.’ Dr. Parikh
recommended that Kelly undergo further mammograms on an annual basis. Her
treating physician ordered another mammogram and ultrasound in 2014, noting
that the mass was still present. Plaintiff raises no issues with regard to the
2014 mammogram, which did not result in a cancer diagnosis or order for further
testing.
“On April 21, 2015, Kelly
underwent another mammogram and ultrasound, and reported that the lump had
increased in size. A biopsy was performed on April 29, 2015. The biopsy report,
based on a review of the April 21, 2015 mammogram and ultrasound, described
Kelly’s history as ‘[a]bnormal mammogram/ultrasound.’ The biopsy revealed that
the lump was cancerous. On May 18, 2015, Kelly underwent a bilateral
mastectomy. Two cancerous tumors were removed, and a lymph node tested positive
for cancer. A biopsy performed on July 28, 2016 revealed that the breast cancer
had further metastasized to Kelly’s bone marrow.
“On December 10, 2016, Kelly’s
attorney served a notice of intent under MCL 600.2912b, giving notice of a
claim of medical malpractice. On June 12, 2017, Kelly and her husband filed
this medical malpractice action against defendants. Defendants moved for
summary disposition under MCR 2.116(C)(7), arguing that Kelly had failed to
file the complaint (or serve the notice of intent) before the statute of
limitations expired. Defendants argued that there was no question that Kelly
had failed to do so within the two-year period set forth in MCL 600.5805(6). Thus,
the only issue was whether Kelly timely initiated the action under MCL
600.5838a(2), which reads: ‘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 ... or within 6 months after the plaintiff
discovers or should have discovered the existence of the claim, whichever
is later. [MCL 600.5838a(2) (emphasis added).]’ Defendants argued that Kelly
should have discovered her claim no later than April 2015, when her cancer was
diagnosed, and that she failed to file her complaint (or serve her notice of
intent) within six months of that date.
“In response, Kelly argued that
she was unaware that Dr. Parikh had misinterpreted the 2013 mammogram until
August 2016, when she treated with Dr. Dennis Citrin in Illinois. She asserted
that Dr. Citrin reviewed her medical records and told her at that time that the
2013 mammogram had been misread and should have been interpreted as positive or
suspicious for cancer. Kelly argued that this case is directly on point with Jendrusina
v Mishra, 316 Mich App 621; 892 NW2d 423 (2016).
“The trial court denied the motions, opining that although a reasonable person could have concluded that a diagnosis of breast cancer in 2015 meant that Dr. Parikh had misread the 2013 mammogram, it could not say that a reasonable person should have reached that conclusion. The trial court further stated: ‘There is no evidence before the Court that any of Kelly’s treating physicians told her that her 2013 mammogram was suspicious for cancer until August of 2016, or that a 2015 cancer diagnosis should put a reasonable person on notice that a benign mammogram from 2013 was necessarily the result of a negligent misinterpretation.’”
‘Could’
vs. ‘should’
“Defendants argue that the trial court erred by concluding that the statute of limitations did not bar Kelly’s claim. We agree.
“The parties do not dispute that Kelly’s claim was filed (and the notice of intent was served) beyond the two-year period of limitations for malpractice actions found in MCL 600.5805(8). However, this limitations period is subject to a six-month ‘discovery rule’ exception, under which a claim may be commenced after the expiration of the two-year limitations period if it is commenced within six months after the plaintiff discovered or should have discovered the claim. MCL 600.5838a(2).
“Here, plaintiff argues that the injury caused to Kelly by Dr. Parikh’s alleged malpractice was a delay in her breast cancer diagnosis.
“Plaintiff argues that Jendrusina compels us to affirm the trial court’s decision. We disagree. Indeed, we conclude that the circumstances of this case are closer to those presented in Solowy [v Oakwood Hosp Corp, 454 Mich 214; 561 NW2d 843 (1997)] than to those presented in Jendrusina.
“For all the reasons that this Court held that the plaintiff in Jendrusina should not have been aware of his possible claim, the opposite is true in this case. Kelly at all times knew exactly what her medical history was. She knew of her breast lump, knew that it was in the same location as it was at the time of the 2013 mammogram, and knew that it had grown larger. She did not lack any relevant data about her condition. Although (unlike in Solowy), she had not previously been diagnosed with cancer, she was fully aware of her cancer diagnosis, was fully aware her breast cancer had metastasized, and had undergone a mastectomy, all more than six months before she served her notice of intent or filed her complaint. While the claim in Solowy was deemed untimely because the plaintiff had waited for confirmation of her suspicions (of cancer) before filing suit, Kelly in this case waited even longer. Indeed, she waited an additional 17+ months (after her cancer diagnosis) before serving her notice of intent.
“Kelly was diagnosed with cancer on April 29, 2015. A bilateral mastectomy was performed on May 18, 2015. Two cancerous tumors were removed. A lymph node tested positive for cancer. Under Hutchinson [v Ingham Co Health Dept, ___ Mich App ___, ___; ___ NW2d ___ (2019)], any of these events was sufficient to commence the running of the six-month discovery period. But Kelly did not serve her notice of intent until December 10, 2016 (and did not file suit until June 12, 2017).
“When Kelly’s lump was biopsied
and she ‘received a definitive diagnosis of cancer,’ she, like the plaintiff in
Hutchinson, ‘could have surmised that defendants were negligent in the
treatment of the lump on her breast’ at the time she had consulted with them.
... At that point, she had sufficient information to trigger the running of the
discovery rule period. … Because Kelly’s notice of intent was served more than
6 months after April 29, 2015, the trial court erred by denying defendants’
motions for summary disposition under MCR 2.116(C)(7). MCL 600.5805(8); MCL
600.5838a(2).
“Reversed
and remanded for entry of orders granting summary disposition in favor of
defendants.”
Dissenting
judge’s comments
“I respectfully dissent. The trial court
correctly apprehended the standard for applying the ‘discovery rule,’ MCL
600.5838a(2), as whether a reasonable person should have discovered the
existence of a possible claim rather than whether a reasonable person could
have discovered the existence of a possible claim. The majority misconstrues
the case law that was in effect when the trial court entered its order, and the
majority misreads this Court’s recent case of Hutchinson v Ingham Co Health
Dep’t, ___ Mich App ___; ___ NW2d ___ (2019) (Docket No. 341249), which
reaffirms the correct standard. I would affirm.
“I conclude that the trial
court’s analysis was entirely correct. Kelly could have become aware of
a possible cause of action against defendants when she received her cancer
diagnosis. However, no facts have been presented warranting an immediate
assumption that, instead of receiving a new diagnosis, she had previously been
misdiagnosed. In contrast, the plaintiff in Hutchinson was explicitly
advised of possible earlier malpractice contemporaneously with her diagnosis.
“The majority’s analysis creates
a sad consequence apart from the tragedy of Kelly Bowman’s death. Patients
frequently seek consultation with physicians because they fear that a condition
(a breast lump, a swollen gland, a mole) might harbor cancer. Most breast lumps
are not cancerous, and nor are most swollen glands, or most moles. The majority
nevertheless places on every patient who receives a cancer diagnosis an
obligation to immediately go back in time by launching an investigation into
the accuracy of all previous diagnostic testing. Those who fail to undertake
this mission within six months of diagnosis have no legal recourse if they
later learn that a physician’s negligence condemned them to death.
“I reject as unacceptable and
legally groundless the notion that every cancer patient must assume prior negligence
or lose their right to sue, even when no reason exists to suspect an error. The
Legislature did not intend such a rule when it used the term ‘should have
discovered.’ Solowy, Jendrusina and Hutchinson understood that
the term ‘should have discovered’ is not to be applied in a vacuum, but only
when a plaintiff has notice of some sort that her condition should have been
discovered earlier. There was no such notice or awareness here.
“The
trial court correctly determined that the limitations period provided by the
discovery rule began running in August of 2016 when Kelly was specifically
advised that Dr. Parikh’s interpretation of the 2013 mammogram was a
misdiagnosis rather than an accurate diagnosis of Kelly’s condition at the
time. The trial court therefore correctly denied defendants’ motions for
summary disposition pursuant to MCR 2.116(C)(7).”
Bowman
v. St. John Hospital and Medical Center; MiLW 08-100910,
17 pages; Michigan Court of Appeals unpublished per curiam; Letica, J., Boonstra, J.; Ronayne Krause, J., dissenting; on appeal from Macomb
Circuit Court; Mark R. Bendure for appellee; Renee J. Pries for appellant.
