Quinlan v. Gudes , 2 Mich. App. 506 ( 1966 )

2 Mich. App. 506 (1966) 140 N.W.2d 782

QUINLAN
v.
GUDES.

Docket No. 776.

Michigan Court of Appeals.

Decided March 22, 1966. Leave to appeal denied May 25, 1966.

E.R. Whinham, Jr., for plaintiffs.

Moll, Desenberg, Purdy, Glover & Bayer (Harold B. Desenberg, of counsel), for defendant.

Leave to appeal denied by Supreme Court May 25, 1966. See 377 Mich 712.

LESINSKI, C.J.

The plaintiffs, Villana P. Quinlan and her husband James F. Quinlan, commenced this action in the circuit court for the county of Wayne on December 15, 1964, to recover for injuries suffered "because of excessive exposures to X rays" given by the defendant medical doctor to Villana P. Quinlan for the treatment of facial skin eruptions. The defendant filed a motion for summary judgment^[1] and for accelerated judgment^[2] invoking the statute of limitations, CLS 1961, § 600.5805 (Stat Ann 1962 Rev § 27A.5805), as an affirmative defense. On the basis of the affirmative defense, the trial court granted defendant's motion and dismissed the case. From this ruling, appeal was taken.

In August of 1952 the plaintiff, Mrs. Villana Quinlan, sought out the defendant for treatments for her facial skin eruptions. X-ray treatments were given to Mrs. Quinlan from August of 1952 through June of 1954. In January of 1963 when she was operated on for cancer of the soft palate, the plaintiffs were informed by the surgeon who operated on Mrs. Quinlan "that the cause of the cancer was the receiving of X-ray treatments." Suit for malpractice was begun 23 months after the discovery of the cancer.

The question facing this Court revolves around the effective date of the section limiting actions for malpractice found in the revised judicature act, hereinafter called RJA.^[3] Plaintiffs contend that this cause of action, having arisen prior to January 1, 1963, the date the revised judicature act (RJA) went into effect (see CLS 1961, § 600.9911 [Stat Ann 1962 Rev § 27A.9911]), the action is controlled by the statute of limitations in effect at the time the cause of action arose, namely CLS 1956, § 609.13 (Stat Ann 1959 Cum Supp § 27.605). It is the defendant's contention, on the other hand, that since this action was begun in December of 1964, it should be controlled by the new statute of limitations created by the RJA, namely CLS 1961, § 600.5805 (Stat Ann 1962 Rev § 27A.5805) and by CLS 1961, § 600.5838 (Stat Ann 1962 Rev § 27A.5838).

This question must be considered the crux of the case as by its determination the remaining issue of when does the statute of limitations begin to run is readily resolved.

The effectuating clause of the RJA, CLS 1961, § 600.9911 (Stat Ann 1962 Rev § 27A.9911) states that "This act shall become effective on January 1, 1963." As of that date the various sections of the RJA were to be considered the law of this State, but as to a right accruing, accrued, or acquired prior to this date, the statute CLS 1961, § 600.9905 (Stat Ann 1962 Rev § 27A.9905[1]) states:

"Except as specifically stated or reasonably inferred from the provisions of this act, this act shall not impair or affect any act done, offense committed or right accruing, accrued or acquired, or liability, penalty, forfeiture or punishment incurred prior to the time this act takes effect, but the same may be enjoyed, asserted, enforced, prosecuted, or inflicted as if the act had not been passed." (Emphasis supplied.)

The treatments in this case were done and completed nine years prior to the effective date of the RJA. Though the plaintiffs did not discover their rights to a cause of action in this case until the RJA was in effect, it is the Court's view they had acquired these rights prior to January 1, 1963.

This Court deems this case to be of the exact type contemplated by the legislature when it enacted CLS 1961, § 600.9905 (Stat Ann 1962 Rev § 27A.9905). It is, therefore, this Court's construction that this case is controlled by CLS 1956, § 609.13 (Stat Ann 1959 Cum Supp § 27.605) as to when the statute of limitations began to run against the plaintiffs.

There are two basic theories of the running of statutes of limitations in malpractice cases. The first theory is the "last treatment"^[4] rule. This theory contemplates that the statute of limitations in malpractice actions begins to run as soon as the plaintiff discontinues receiving treatments or service from the accused professional.

The other theory commonly known as the "discovery rule" was laid down in Johnson v. Caldwell (1963), 371 Mich 368 as the rule in Michigan in malpractice cases prior to the institution of the RJA. As Justice O'HARA stated in the Johnson Case at page 379:

"Simply and clearly stated the discovery rule is: The limitation statute or statutes in malpractice cases does not start to run until the date of discovery, or the date when, by the exercise of reasonable care, plaintiff should have discovered the wrongful act."

The Court continued at page 379:

"We are persuaded we should adopt the rationale of the discovery rule."

Thus, using the rule enunciated in the Johnson Case, the plaintiffs timely instituted this action within the limitation under CLS 1956, § 609.13 (Stat Ann 1959 Cum Supp § 27.605) which is two years from the time of discovery of the malpractice.

This cause is remanded to the trial court for entry of an order setting aside the accelerated judgment and for this cause to be set for trial. Costs to the appellant.

QUINN and WATTS, JJ., concurred.

NOTES

[1] GCR 1963, 117. — REPORTER.

[2] GCR 1963, 116.1(5). — REPORTER.

[3] CLS 1961, § 600.101 et seq. (Stat Ann 1962 Rev § 27A.101 et seq.)

[4] The RJA, CLS 1961, § 600.5838 (Stat Ann 1962 Rev § 27A.5838) has instituted the above-named rule for determining the running of the statute of limitations in malpractice cases. It has been the determination of this Court that this statute only affects those causes of actions accruing after January 1, 1963.