Boyer v. Vandenbrink , 98 Mich. App. 772 ( 1980 )

98 Mich. App. 772 (1980) 293 N.W.2d 687

BOYER
v.
VANDENBRINK

Docket No. 78-2245.

Michigan Court of Appeals.

Decided April 21, 1980.

Randolph McCarthy, Jr., P.C., for plaintiff.

Bennett, Palmer, Lewis, LaParl, Hollander & Stevens, P.C. (by Richard A. Milligan), for defendant.

Before: MacKENZIE, P.J., and D.E. HOLBROOK, JR., and CYNAR, JJ.

MacKENZIE, P.J.

On May 17, 1978, the Kalamazoo County Circuit Court entered an order granting defendant leave to amend his answer to raise the statute of limitations as an affirmative defense in this medical malpractice action. The trial court then granted accelerated judgment in favor of defendant on the ground that plaintiffs' claim was barred by the two-year statute of limitations applicable to such actions. Plaintiffs appeal.

Plaintiffs, a married couple with five children, consulted defendant about possible vasectomy surgery in February, 1972. Defendant performed a bilateral partial vasectomy upon plaintiff John E. Boyer on March 17, 1972. Plaintiff submitted semen samples on April 3, 1972, and April 28, 1972; testing results showed no sperm present. According to plaintiff, he was then told that he and his wife could proceed with normal sexual relations without fear of pregnancy; he was not advised to submit further samples. Defendant claims that plaintiff was requested to provide another semen sample in three months, but failed to do so.

On August 3, 1975, plaintiffs became aware that Mrs. Boyer was pregnant. Plaintiffs' complaint identifies August 3, 1975, as the date the plaintiffs discovered defendant's malpractice. Plaintiff John E. Boyer immediately contacted defendant's office. A test performed August 5, 1975, showed sperm present in plaintiff's semen.

Plaintiffs filed a complaint for medical malpractice against defendant on February 13, 1976. Defendant answered on March 3, 1976, denying the complaint's allegations. On March 28, 1977, defendant moved to amend his answer to raise the affirmative defense of the statute of limitations and asked accelerated judgment based upon this defense. The circuit judge, Patrick H. McCauley, issued an opinion on May 3, 1978, granting defendant's motions for leave to amend and for accelerated judgment.

The period of limitations for claims alleging malpractice is two years. MCL 600.5805; MSA 27A.5805. The accrual of a malpractice claim against a state-licensed professional is dealt with in MCL 600.5838; MSA 27A.5838. Prior to July, 1975, the statute stated:

"A claim based on the malpractice of a person who is, or holds himself out to be, a member of a state licensed profession accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudo-professional capacity as to the matters out of which the claim for malpractice arose."

In Dyke v Richard, 390 Mich. 739; 213 NW2d 185 (1973), the Michigan Supreme Court interpreted § 5838 to mean that an action based on malpractice by a state-licensed professional must be brought within two years of last treatment or within two years of the time the asserted malpractice is discovered, or in the exercise of reasonable diligence, should have been discovered.

Effective July 9, 1975, § 5838 was amended to allow a plaintiff only six months to bring a malpractice action after the plaintiff discovers or should have discovered the existence of the claim. This Court has held that this truncation of the period of limitations was intended to be applied prospectively, i.e., only to causes of action which accrue after its effective date. Farris v Beecher, 85 Mich. App. 208; 270 NW2d 658 (1978). Also, in Weiss v Bigman, 84 Mich. App. 487; 270 NW2d 5 (1978), this Court held that the statute of limitations in effect at the time the cause of action arose governs. The question exists whether the cause of action is considered to have arisen at the time the malpractice is discovered, which is the time the running of the statutory period commences, or at the time the act alleged to constitute malpractice occurred. It was the trial court's opinion that the cause of action arose, for purposes of determining which law is applicable, when the malpractice was discovered. We disagree.

In Quinlan v Gudes, 2 Mich. App. 506; 140 NW2d 782 (1966), cited by the Weiss Court, the plaintiffs alleged malpractice in the giving of x-ray treatments by the defendant in the early 1950's. In January, 1963, the plaintiff underwent a cancer operation and was informed at that time the cause of the cancer was the x-ray treatments. As of January 1, 1963, the Revised Judicature Act became effective which adopted the "last treatment" rule, declaring that malpractice actions accrue as soon as the plaintiff discontinues treatments or service from the accused professional. Under this provision, the plaintiff's claim would have been barred by the statute of limitations, as the last treatment by the defendant occurred in 1954. The Court, however, ruled that § 5838 was inapplicable to the Quinlan case because the cause of action arose years earlier when the x-ray treatments were given.^[1] The Court thus applied the discovery rule, the applicable rule at the time of the treatments,^[2] and held that since the plaintiffs instituted their action within two years of discovery, their suit was not barred by the statute of limitations.

The Quinlan decision was cited by the Michigan Supreme Court in Winfrey v Farhat, 382 Mich. 380; 170 NW2d 34 (1969). The Court concluded that since the plaintiff's claim arose out of an act done prior to January 1, 1963, the effective date of § 5838, this provision was inapplicable. The discovery rule, applicable prior to January 1, 1963, was instead considered controlling. Since the plaintiff instituted her action within two years of the discovery date of June 17, 1965, her action was not barred.

In the instant case, the date of the alleged malpractice was March 17, 1972, when the vasectomy was performed. The two-year discovery rule was in effect at this time. The date the plaintiffs discovered the alleged malpractice was early August, 1975, when they learned that Mrs. Boyer was pregnant and that Mr. Boyer was not sterile. Suit was commenced six and one-half months after discovery. Since the plaintiffs had two years after discovery in which to file suit, their claim is not barred.

Because we have concluded that their action was not barred by the statute of limitations, we need not reach the plaintiffs' contention that the lower court erroneously permitted the defendant to amend his answer.

Reversed and remanded. Costs to plaintiffs-appellants.

NOTES

[1] The Court based its ruling upon § 9905 of the Revised Judicature Act, which provides:

"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.)

[2] The discovery rule was set forth in Johnson v Caldwell, 371 Mich. 368; 123 NW2d 785 (1963), as the rule governing malpractice cases prior to the enactment of § 5838.