Michigan Court of Appeals Holds Lower Court Erroneously Dismissed Plaintiffs’ Medical Malpractice Claim as Time-Barred

The Michigan Court of Appeals recently reversed a lower court’s grant of summary judgment to defendants, holding the lower court erroneously found the plaintiffs’ medical malpractice claim to be time-barred.

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In March 2007, plaintiff Richard Krueger visited his primary care doctor, Mr. Giovannucci, after experiencing abdominal pain and diarrhea. Krueger was referred to Dr. Meisner, a gastroenterologist. Tests showed that Krueger had an abdominal aneurysm. In a March 2007 letter, Dr. Meisner advised Dr. Giovannucci of the results of his evaluation, including his discovery of the abdominal aortic aneurysm. At an April 2007 office visit, Dr. Giovannucci discussed the abdominal aortic aneurysm with Krueger. Krueger continued to see Dr. Giovannucci annually for the next seven years, and neither Dr. Giovannucci nor his physician’s assistant ordered any diagnostic testing to check on the status of Krueger’s abdominal aortic aneurysm. Krueger’s aneurysm burst in April 2014.

In May 2015, the plaintiffs filed a medical malpractice complaint, alleging that the applicable standard of care required Dr. Giovannucci to arrange for annual diagnostic testing of Krueger’s aneurysm or to refer him to a specialist for such testing, and Dr. Giovannucci breached the standard of care by failing to do either.

On June 29, 2015, the defendants filed a motion for summary disposition pursuant to MCR 2.116(C)(7). Noting that medical malpractice claims must be brought within six years of the act or omission forming the basis of the claim, the defendants asserted that the plaintiffs’ claim was barred because Dr. Giovannucci’s alleged omission occurred in March 2007, over eight years before the plaintiffs filed their complaint. The plaintiffs responded that Dr. Giovannucci violated the standard of care on numerous occasions after 2007, most recently in February 2014, when he failed to assess the size of Krueger’s aneurysm despite knowing that it existed and that he was supposed to monitor its growth. The plaintiffs contended that such a failure constituted a separate and independent act of malpractice and that they had filed their complaint within two years of this incident.

At the July 2015 hearing on the defendants’ summary disposition motion, the defendants argued that the plaintiffs were attempting to assert a theory of continuing wrong that reached back to March 2007, essentially giving rise to a new accrual date each year during Krueger’s annual physical examination. The plaintiffs responded that they were not alleging a continuing wrong but instead that a new tort occurred in February 2014 when Krueger was treated for his annual physical, and no diagnostic testing was arranged. To the extent that they had not clearly articulated this allegation in their complaint, the plaintiffs requested leave to amend. The defendants opposed, arguing that any amendment would be futile because any duty Dr. Giovannucci owed to Krueger arose in 2007.

The trial court granted the defendants’ summary disposition motion in a July 2015 opinion, reasoning that the plaintiffs’ claim was time-barred because Dr. Giovannucci’s duty arose in March 2007. The trial court also agreed with the defendants that granting leave to amend the complaint would be futile.

On appeal, the plaintiffs contended that the trial court erred by misconstruing their pleadings to allege a claim for medical malpractice based on an omission committed in March 2007, rather than on Dr. Giovannucci’s failure to monitor Krueger’s aneurysm by ordering the appropriate diagnostic tests each year.

The appeals court first explained Michigan’s “last-treatment rule,” which dictates that the cessation of the ongoing patient-physician relationship marks the point at which the statute of limitations begins to run. However, in 1986, the legislature abolished the last-treatment rule and established that the accrual date for medical malpractice claims would be determined based on the act or omission that occasioned the harm. Under the new rule, a plaintiff may begin a medical malpractice claim within two years of the act or omission upon which the claim is based, or within six months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later.

The appeals court held that when viewed in the light most favorable to the plaintiffs, the pleadings presented facts sufficient to put the defendants on notice of the plaintiffs’ allegations that Dr. Giovannucci had a duty to monitor Krueger’s aneurysm by ordering the appropriate test each year and that the doctor breached the duty each year he failed to do so. The defendants’ argument that any alleged failure to test in the years subsequent to 2007 constituted a continuing wrong failed because the plaintiffs did not base their allegations on an initial misdiagnosis and erroneous treatment plan. The breaches upon which the plaintiffs based their claim did not occur in 2007, but every year thereafter when Dr. Giovannucci failed to assess the growth of Krueger’s accurately diagnosed and charted aneurysm at Krueger’s annual check-ups. The most recent alleged breach occurred in February 2014, less than two years prior to the plaintiffs filing their malpractice complaint. For these reasons, the appeals court concluded that the the trial court erred in granting summary disposition to the defendants on the ground that the plaintiffs’ complaint was time-barred.

The medical malpractice attorneys at the Neumann Law Group represent victims of accidents throughout Michigan from offices in Traverse City and Grand Rapids. Call us at (231) 463-0122 or at (616) 717-5666 for a free consultation.

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