Case of the Day: Negligence - Statute of limitations — Discovery rule

Where the defendants in a medical malpractice action filed a motion for summary disposition, it was error to deny that motion, as the complaint was filed beyond the applicable two-year limitations period.

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.