September 2, 2019

The State of Michigan Court of Appeals (“Michigan Appellate Court”) held in its unpublished opinion dated August 13, 2019: “When [the decedent’s] lump was biopsied and she “received a definitive diagnosis of cancer,” she … “could have surmised that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 [the plaintiff’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).”

The Underlying Facts

On June 12, 2013, the plaintiff’s decedent underwent a mammogram and an ultrasound because of a lump in her right breast. The defendant interpreted the mammogram and opined that the lump was benign and recommended that the decedent undergo further mammograms on an annual basis.

The decedent’s treating physician ordered another mammogram and ultrasound in 2014, noting that the mass was still present. The 2014 mammogram did not result in a cancer diagnosis or order for further testing.

On April 21, 2015, the decedent 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 the decedent’s history as “[a]bnormal mammogram/ultrasound.” The biopsy revealed that the lump was cancerous.

On May 18, 2015, the decedent 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 the decedent’s bone marrow.

The plaintiff’s Michigan medical malpractice lawyer served a notice of intent on December 10, 2016 under MCL 600.2912b, giving notice of a claim of medical malpractice, and on June 12, 2017, the Michigan medical malpractice case was filed.

The defendants moved for summary disposition under MCR 2.116(C)(7), arguing that the plaintiff had failed to file the Michigan medical malpractice complaint (or serve the notice of intent) before the statute of limitations expired. The defendants argued that there was no question that the plaintiff had failed to do so within the two-year period set forth in MCL 600.5805(6).5 Thus, the only issue was whether the plaintiff timely initiated the Michigan medical malpractice action under MCL 600.5838a(2).

MCL 600.5838a(2)

MCL 600.5838a(2) states: “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.”

The defendants argued that the decedent 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. The plaintiff argued that the decedent was unaware that the defendant had misinterpreted the 2013 mammogram until August 2016, when she was treated by another doctor who 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.

Michigan Appellate Court Opinion

The Michigan Appellate Court stated: “[The decedent] 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, [the decedent] in this case waited even longer. Indeed, she waited an additional 17+ months (after her cancer diagnosis) before serving her notice of intent … [the plaintiff] did not serve her notice of intent until December 10, 2016 (and did not file suit until June 12, 2017).”

The Michigan Appellate Court “Reversed and remanded for entry of orders granting summary disposition in favor of defendants.”

Estate of Kelly M. Bowman v. St. John Hospital and Medical Center, COA 341640

If you or a family member may have been harmed due to a misread mammogram in Michigan or in another U.S. state, you should promptly seek the advice of a Michigan medical malpractice lawyer, or a medical malpractice lawyer in your state, who may investigate your medical malpractice claim for you and represent you in a medical malpractice case, if appropriate.

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