The Michigan Supreme Court, in its decision dated July 30, 2021, held that under Solowy v Oakwood Hosp Corp, 454 Mich 214 (1997), discovering the existence of a medical malpractice claim requires knowing a possible cause of the underlying injury. In the case it was deciding, which was still at the pleading stage, the record did not indicate that Kelly Bowman should have known before June 2016 that her delayed diagnosis might have been caused by a misreading of the 2013 mammogram. The available facts did not allow her to infer that causal relationship, and the defendants had not shown that she lacked diligence. Accordingly, the present record did not allow a conclusion that, as a matter of law, that the Bowmans initiated proceedings more than six months after Kelly Bowman discovered or should have discovered the existence of her claim.
MCL 600.5838a(2) sets forth the “discovery rule” applicable to claims of medical malpractice. The provision states, in relevant part, that a medical malpractice claim may be commenced at any time within the statutory limitations periods or within six months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later, but generally may not be commenced later than six years after the date of the act or omission that is the basis for the claim. Under this provision, the plaintiff has the burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition, or otherwise, neither discovered nor should have discovered the existence of the claim at least six months before the expiration of the period otherwise applicable to the claim. A medical malpractice action is barred if it is not commenced within the time prescribed by MCL 600.5838a(2).
When the facts compel an inference of a possible cause, diligence has little role to play in evaluating whether a plaintiff should have discovered a possible cause of action. When the facts do not compel an inference of a possible cause but do arouse suspicion, diligence is required. Whether the facts should arouse a plaintiff’s suspicion and thus trigger the duty to investigate is evaluated by applying a flexible, fact-specific inquiry, fueled by common sense and reason. Under that approach, facts arouse suspicion when they would make a reasonable plaintiff wonder whether the defendant is responsible. The facts that arouse a plaintiff’s suspicions will vary from case to case, and the facts that might be salient to a doctor will not necessarily be salient to a patient. To trigger the duty to investigate, the plaintiff must possess at least some minimum level of information that, when viewed in its totality, suggests a nexus between the injury and the negligent act. A plaintiff “should have discovered” a possible cause of action when the plaintiff knows facts that should arouse suspicions and does not diligently investigate.
In the Michigan medical malpractice case that the Michigan Supreme Court was deciding, it was undisputed that the complaint was filed after the two-year limitations period set forth in MCL 600.5805(8), and so the complaint was timely only if it was filed within six months after the plaintiffs discovered or should have discovered the existence of the claim. The Michigan Supreme Court held: “Kelly Bowman discovered the mass in her breast in 2013, brought it to her doctor’s attention, continued to monitor the mass even after receiving the initial mammogram report that did not show cancer, noticed the persistence of the mass in 2014 and sought additional testing, continued to monitor the mass in 2015 and observed that it had increased in size, and brought her concerns to her physician’s attention to obtain further testing. Further, she continued to follow up and was diagnosed in July 2016 with cancer in her bone marrow. The next month, she sought a second opinion from a specialist, where she learned that the 2013 mammogram might have been misread. Although, as a procedural matter, these facts did not allow a conclusion that Bowman was diligent, they also did not allow a conclusion that she was not. Had there been evidence in the record to suggest that Kelly Bowman could have learned of defendants’ responsibility had she exercised due diligence, summary disposition may have been appropriate. However, given the evidence that she had engaged in behavior that could be characterized as diligent, the case could not be resolved summarily at the pleading stage. Accordingly, defendants were not entitled to summary disposition.”
Source Bowman v. St. John Hospital & Medical Center, Nos. 160291 and 160292.
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