Joan Milostan v. Troy Internal Medicine

STATE OF MICHIGAN
COURT OF APPEALS
JOAN MILOSTAN, UNPUBLISHED
January 15, 2015
Plaintiff-Appellant,
v No. 317704
Oakland Circuit Court
TROY INTERNAL MEDICINE, MARK ALLEN LC No. 2012-126758-NH
SINKOFF, M.D., MICHAEL JOHN SIMPSON,
M.D., NEIL FRASER, M.D.,
Defendants-Appellees.
Before: FORT HOOD, P.J., AND HOEKSTRA AND O’CONNELL, JJ.
PER CURIAM.
In this medical malpractice case, plaintiff challenges the trial court’s grant of summary
disposition to defendant Dr. Neil Fraser, M.D., under MCR 2.116(C)(7) based on the expiration
of the statute of limitations provided by MCL 600.5805(6). Because the applicable statute of
limitations had expired, and the discovery rule contained in MCL 600.5828a(2) does not apply to
plaintiff’s discovery of Dr. Fraser’s identity, we affirm the trial court’s grant of summary
disposition.
The basic facts in this case are largely undisputed. Defendants Dr. Mark Sinkoff, Dr.
Michael Simpson, and Dr. Fraser are partners in Troy Internal Medicine. In 2009, plaintiff was
77 years old and a long time patient of Troy Internal Medicine, in particular, a patient of Dr.
Sinkoff. At that time, among other medications, plaintiff took Coumadin, an anticoagulant.
Toward the end of 2009, plaintiff successfully underwent microsurgical clipping of a brain
aneurysm, following which she was discharged from the hospital on December 22, 2009 and she
resumed taking Coumadin. According to the affidavit of merit supporting plaintiff’s complaint,
given plaintiff’s medical history, following her surgery, the standard of care required checking of
plaintiff’s Coumadin levels every two to three days to ensure the proper therapeutic dosage.
After discharge from the hospital, plaintiff returned home where she received continuing
care from home nurses. Her nurses reported to Troy Internal Medicine in regard to plaintiff’s
Coumadin levels. Specifically, on December 26, 2009, plaintiff’s Coumadin levels were
checked and reported to Dr. Simpson. Dr. Simpson ordered continuation of Coumadin and a re-
check of plaintiff’s Coumadin levels on December 30, 2009. Per these instructions, plaintiff’s
Coumadin levels were again checked on December 30, 2009, at which time those levels had
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risen significantly from December 26, 2009. Home care nurses, who were concerned by the
levels, communicated those results to Troy Internal Medicine via telephone. Despite plaintiff’s
significant rise in Coumadin levels, Dr. Fraser ordered continuation of the same dosage of
Coumadin and a re-check of plaintiff’s Coumadin levels more than two weeks later.
Before this re-check occurred, in early January of 2010, plaintiff began experiencing new
medical problems, including unsteady gait and balance, lethargy, headaches, facial pain, and
double vision. Plaintiff’s daughter took her to the hospital on January 12, 2010, where testing
revealed that plaintiff had a subdural hematoma due to excessively high Coumadin levels.
Plaintiff’s condition necessitated a left frontal craniotomy “for evacuation of the brain bleeds.”
As a result of bleeding on the brain, plaintiff suffered neurological damages, including speech,
motor skill, and cognitive difficulties. It is plaintiff’s basic contention that those involved with
her treatment breached the standard of care by failing to address whether the dosage was
appropriate given the high levels of Coumadin in her blood and by ordering a recheck in two
weeks, rather than more frequent checks.
On November 9, 2011, plaintiff sent a notice of intent to Dr. Sinkoff, Dr. Simpson, and
Troy Internal Medicine. Her notice of intent also included reference to a “JohnDoe/Jane Doe,
M.D,” an internist whose name was then unknown to plaintiff. In her notice of intent she
detailed her injuries and she alleged among the negligent acts causing those injuries the decision
made on December 30, 2009 to continue the same dosage of Coumadin and not to recheck her
Coumadin levels for at least two weeks. She attributed this wrongful conduct to “Dr. Sinkoff,
Dr. Simpson, Troy Internal Medicine, and others employed by Troy Internal Medicine.” On
May 8, 2012, plaintiff filed her original complaint in the present suit. In her complaint, she
named Dr. Simpson, Dr. Sinkoff, and Troy Internal Medicine.
However, neither plaintiff’s notice of intent nor her original complaint included Dr.
Fraser because, according to plaintiff, she did not learn of his specific involvement in her
treatment until September of 2012. In particular, on September 19, 2012, in response to
interrogatories, Dr. Fraser’s name was given to plaintiff as a physician who was involved with
her treatment. Proof of his involvement was evidenced by a “phone slip,” purportedly written by
Dr. Fraser on December 31, 2009, although it does not appear to contain his signature or any
other identifying information. After learning of Dr. Fraser’s involvement, plaintiff sent a second
notice of intent on November 1, 2012, naming both Dr. Fraser and Troy Internal Medicine.
Then, on January 8, 2013, plaintiff moved to amend her complaint to add Dr. Fraser as a
defendant. Over objection from defendants, the trial court granted plaintiff’s motion and she
amended her complaint to include Dr. Fraser as a defendant on February 4, 2013.
Dr. Fraser then moved for summary disposition pursuant to MCR 2.116(C)(7). He
contended that plaintiff’s complaint was time barred by MCL 600.5805(6). In response, plaintiff
argued that the discovery rule contained in MCL 600.5828a(2) applied, such that she had six
months from the time she learned of Dr. Fraser’s involvement in which to file her suit. The trial
court granted Dr. Fraser’s motion for summary disposition. Thereafter, an order entered
dismissing plaintiff’s claims against the remaining defendants. Plaintiff now appeals as of right,
challenging solely the trial court’s grant of summary disposition to Dr. Fraser.
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On appeal, this Court reviews de novo a trial court’s decision on a motion for summary
disposition. DiPonio Const Co, Inc v Rosati Masonry Co, Inc, 246 Mich. App. 43, 46; 631 NW2d
59 (2001). Summary disposition is properly granted under MCR 2.116(C)(7) when a plaintiff’s
complaint is barred by the applicable statute of limitations. Burton v Macha, 303 Mich. App. 750,
754; 846 NW2d 419 (2014). “When reviewing a motion for summary disposition under MCR
2.116(C)(7), the trial court must accept the nonmoving party’s well-pleaded allegations as true
and construe the allegations in the nonmovant’s favor to determine whether any factual
development could provide a basis for recovery.” Hoffman v Boonsiri, 290 Mich. App. 34, 39;
801 NW2d 385 (2010). When the facts are not in dispute, whether a cause of action is time
barred by the applicable statute of limitations poses a question of law which this Court reviews
de novo.1 Trentadue v Buckler Lawn Sprinkler, 479 Mich. 378, 386; 738 NW2d 664 (2007).
As noted, the trial court granted summary disposition to Dr. Fraser because it determined
plaintiff’s claims against him were time-barred by the applicable statute of limitations. Plaintiff
contests this determination on appeal. She argues specifically that the discovery rule provided
for in MCL 600.5838a(2) applies in this case and that, pursuant to this rule, she had six months
from the discovery of Dr. Fraser’s identity to file suit, meaning that, according to plaintiff, her
notice of intent to Dr. Fraser and the amendment of her complaint to include Dr. Fraser were
timely.
Relevant to resolution of this dispute, pursuant to MCL 600.5838a(1), a claim based on
medical malpractice “accrues at the time of the act or omission that is the basis for the claim of
medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of
the claim.” Under MCL 600.5805(6), the typical period of limitations for an action charging
medical malpractice is two years.2
In this case, as evidenced by the phone slip detailing Dr. Fraser’s instructions to
plaintiff’s home nurse, Dr. Fraser’s allegedly wrongful act occurred, at the latest, on December
31, 2009, when he ordered the continuation of Coumadin at the same dosage and he delayed
additional testing for two weeks. Consequently, plaintiff’s claim accrued on December 31, 2009,
and the applicable statute of limitations expired on December 31, 2011. See MCL 600.5838a(1);
MCL 600.5805(6).
1
Plaintiff suggests on appeal that summary disposition should not have been granted in this case
because there may be a factual dispute regarding when she discovered, or should have
discovered, her claim. Plaintiff is mistaken in this regard because the facts in this case are
uncontroverted. The only issue to be resolved is what legal conclusion should be drawn from the
facts. Consequently, the issue in this case may be decided as a matter of law, without the need to
submit the matter to a jury. See Moll v Abbott Labs., 444 Mich. 1, 27-28; 506 NW2d 816 (1993).
2
There are exceptions to this general two year rule including, for instance, cases involving
infancy, insanity, or death, none of which apply in the present case. See MCL 600.5838a(2);
MCL 600.5851 to 600.5856.
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Plaintiff does not contest that the general two-year statute applicable to her malpractice
claims had expired. She asserts instead that her claims against Dr. Fraser are not barred by this
two year period of limitations because she did not know of Dr. Fraser’s identity as the
perpetrator of the malpractice until September 19, 2012. It is her position that, under the
discovery rule prescribed in MCL 600.5838a(2), she then had six months from her discovery of
his identity to provide a notice of intent and amend her suit.
The discovery rule on which plaintiff’s claim rests is found at MCL 600.5838(2). It
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 prescribed in section 5805 or sections 5851 to 5856, or within 6 months
after the plaintiff discovers or should have discovered the existence of the claim,
whichever is later. However, except as otherwise provided in section 5851(7) or
(8), the claim shall not be commenced later than 6 years after the date of the act or
omission that is the basis for the claim. 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 6
months before the expiration of the period otherwise applicable to the claim is on
the plaintiff. A medical malpractice action that is not commenced within the time
prescribed by this subsection is barred. . . . [MCL 600.5838a(2) (emphasis
added).]
Whether a plaintiff has discovered, or should have discovered, the existence of a claim is
judged on the basis of objective facts. Solowy v Oakwood Hosp Corp, 454 Mich. 214, 232; 561
NW2d 843 (1997). A plaintiff is said to have discovered, or should have discovered, a cause of
action “[o]nce a claimant is aware of an injury and its possible cause . . . .” Id. at 222 (citation
omitted). The plaintiff need not “know the details of the evidence” supporting her claim, nor is it
necessary that she be able to prove each element of the cause of action. Moll, 444 Mich. at 24
(citation omitted); Solowy, 454 Mich. at 224. Rather, it is enough that she knows of a “possible
cause of action.” See Solowy, 454 Mich. at 224-225. The reasoning for this “possible cause of
action” approach is that “[o]nce a plaintiff is aware of an injury and its possible cause, the
plaintiff is equipped with the necessary knowledge to preserve and diligently pursue his claim.”
Id. at 222-223. See also Moll, 444 Mich. at 24-25.
The specific issue in the present case is whether it may be said a plaintiff knew, or should
have known, of a cause of action where she was fully aware of her injuries and the acts causing
those injuries but was unaware of the precise identity of the wrongdoer. This question is not a
novel one in Michigan, and there is ample support for the proposition that the discovery rule
described in MCL 600.5838a(2) is not triggered by discovery of a wrongdoer’s identity.
For example, in Poffenbarger, wherein the plaintiff sought to add additional parties to her
medical malpractice complaint after the expiration of the period of limitations, this Court
determined that the plaintiff had not discovered the existence of the claim for purposes of MCL
600.5838a(2) when she learned of the doctor’s identity. Poffenbarger v Kaplan, 224 Mich App
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1; 568 NW2d 131 (1997), overruled in part on other grounds by Miller v Mercy Mem Hosp Corp,
466 Mich. 196; 644 NW2d 730 (2002). This Court explained:
Although [the plaintiff] was aware of a potential wrongful death action at least by
July 22, 1993, when she filed her original complaint, she did not move to amend
her complaint and add these defendants until May 19, 1994, almost ten months
later. That plaintiff initially may not have been aware of [the doctor’s] identity
does not alter her duty of diligence in discovering a potential cause of action. The
discovery period applies to discovery of a possible claim, not the discovery of the
defendant’s identity. [Id. at 12 (emphasis added).]
Likewise, in Weisburg v Lee, 161 Mich. App. 443, 448; 411 NW2d 728 (1987), this Court rejected
the plaintiff’s claim that the discovery rule should apply because he was unaware of the
malpractice committed by certain doctors. As in Poffenbarger, this Court determined that “[t]he
discovery rule applies to discovery of a possible claim, not the discovery of the defendant’s
identity.” Id. Indeed, the rule discussed in Poffenbarger was not a novel holding; rather, it has
long been a “well-established principle that the six-month ‘discovery rule’ does not apply to
situations where the negligent act is known, but the identity of the defendant is unknown.” Smith
v Sinai Hosp of Detroit, 152 Mich. App. 716, 726; 394 NW2d 82 (1986). See also Lefever v
American Red Cross, 108 Mich. App. 69, 74; 310 NW2d 278 (1981) (“[T]he ‘time of discovery’
rule relates to the discovery of the asserted malpractice and not the discovery of defendant’s
identity or involvement.”); Hall v Fortino, 158 Mich. App. 663, 668; 405 NW2d 106 (1986)
(same).
Given the principle that the discovery rule applies to discovery of a claim, and not the
discovery of a wrongdoer’s identity, it follows that the discovery rule found in MCL
600.5838a(2) does not apply to plaintiff’s claims against Dr. Fraser, meaning that her claims
against Dr. Fraser are instead time barred by the general period of limitation applicable to
medical malpractice claims. That is, as discussed, plaintiff’s claim accrued on December 31,
2009, and the applicable statute of limitations expired on December 31, 2011. See MCL
600.5838a(1); MCL 600.5805(6). Because plaintiff had not included Dr. Fraser in her notice of
intent or her complaint before the expiration of the statute of limitations, her claim was time
barred, despite any diligence by plaintiff in pursuing her claims and endeavoring to learn Dr.
Fraser’s identity. Cf. Rheaume v Vandenberg, 232 Mich. App. 417, 419-424; 591 NW2d 331
(1998). Although plaintiff argues for the application of the six month discovery rule as of
September 2012, she does so based on her discovery of Dr. Fraser’s identity. However, as made
plain in Poffenbarger and numerous other cases, the discovery rule is not triggered by the
discovery of a wrongdoer’s identity.3
3
Poffenbarger, as a published decision of this Court decided after November 1, 1990 constitutes
precedent which we are bound to follow. MCR 7.215(J)(1). Plaintiff nonetheless contests the
applicability of Poffenbarger, arguing it has been overruled, its operative holding was dicta, and
it is factually distinguishable. These arguments are without merit. First, while Miller, 466 Mich.
at 198, 200 n 3, overruled Poffenbarger, it plainly did so on other grounds that are irrelevant to
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Instead, the relevant inquiry in regard to the discovery rule is when plaintiff discovered
her claim, and it is clear that plaintiff knew of her claim, i.e., her injury and the possible cause of
those injuries, long before she discovered Dr. Fraser’s identity. Specifically, it is undisputed that
plaintiff has long known that, on December 30 or 31, 2009, despite elevated levels of Coumadin,
a physician at Troy Internal Medicine ordered that plaintiff continue on the same dosage of
Coumadin and that she wait two weeks before re-checking her Coumadin levels. Indeed,
plaintiff evidenced her knowledge of these facts by including these factual details in her original
notice of intent and her original complaint.4 Given plaintiff’s awareness of her injuries and their
possible cause, plaintiff had learned of the possible existence of her claim and she was equipped
with the necessary knowledge to diligently pursue that claim. See Solowy, 454 Mich. at 222-232;
Moll, 444 Mich. at 24-25. In short, contrary to plaintiff’s arguments, her subsequent discovery of
Dr. Fraser’s specific involvement did not amount to the discovery of her claim and it did not
trigger the application of the discovery rule. See Poffenbarger, 224 Mich. App. at 12; Weisburg,
161 Mich. App. at 448.
We are not unaware that the result in this case appears rather harsh given that it is
uncontested that plaintiff remained ignorant of Dr. Fraser’s involvement in her treatment until
September of 2012. Plaintiff’s point is well taken that, without knowledge of Dr. Fraser’s
identity as a wrongdoer, she could not include him in her complaint or notice of intent by name
and even including “John Doe” as a defendant would not be sufficient to toll the statute of
limitations. See Rheaume, 232 Mich. App. at 420-424. Be that as it may, plaintiff ignores the fact
that she had two years from the time of Dr. Fraser’s wrongdoing, or six months from the
the present dispute. Second, Poffenbarger’s holding was not dicta because whether the
discovery rule applied was necessary to a determination of whether the plaintiff’s claims were
timely. See Poffenbarger, 224 Mich. App. at 11. See also Dessart v Burak, 252 Mich. App. 490,
497 n 5; 652 NW2d 669 (2002). Third, Poffenbarger is not factually distinguishable. Contrary
to plaintiff’s recitation of Poffenbarger’s facts, the plaintiff in that case was a personal
representative, not the decedent patient who had been seen by the doctor in question. See
Poffenbarger, 224 Mich. App. at 4 n 2. In other words, as in the present case, the plaintiff in
Poffenbarger was apparently unaware of the doctor’s involvement. Id. at 11. In short,
Poffenbarger remains good law and, as binding precedent of this Court, it controls resolution of
the current dispute. See MCR 7.215(J)(1). Moreover, apart from Poffenbarger, there is ample
persuasive authority of this Court to support the conclusion that the discovery rule does not apply
to a wrongdoer’s identity. See, e.g., Weisburg, 161 Mich. App. at 448. See also In re Stillwell
Trust, 299 Mich. App. 289, 299 n 1; 829 NW2d 353 (2012) (“Although cases decided before
November 1, 1990, are not binding precedent, MCR 7.215(J)(1), they nevertheless can be
considered persuasive authority.”). Plaintiff, in contrast, offers not a single case holding that
discovery of a wrongdoer’s identity triggers application of the discovery rule.
4
Cf. Smith, 152 Mich. App. at 725 (“As the complaint clearly illustrates, plaintiff at that point
knew of all the specific acts of negligence that occurred; at the most, all she did not know was
the identity of the exact parties involved. Indeed, [the date on which plaintiff filed her
complaint] is the latest plaintiff could possibly be held to have discovered the existence of her
claim, as it is ludicrous to believe that a plaintiff is not aware of the existence of a claim when
such claim has been filed in court by that plaintiff.”).
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discovery of her injury and its possible cause, whichever was later, in which to ascertain Dr.
Fraser’s identity and his role in her misfortune. It is any would-be plaintiff’s responsibility not
only to diligently investigate and pursue claims, but to do so “within the time frames established
by the Legislature.” Fazzalare v Desa Indus, Inc, 135 Mich. App. 1, 6; 351 NW2d 886 (1984).
Thus, while plaintiff maintains that she acted diligently to investigate and pursue her claim, it is
nonetheless true that—despite knowing of her injuries and the specific negligent acts giving rise
to those injuries—she failed to learn in a timely fashion that Dr. Fraser had been responsible for
the allegedly wrongful conduct.5 Cf. Peltier v Eldredge, 131 Mich. App. 533, 537-538; 345
NW2d 605 (1983). In such circumstances, where plaintiff’s claim, i.e., her injuries and the cause
of the injuries, is known to plaintiff, she is not entitled to make use of the discovery rule. See id.;
Poffenbarger, 224 Mich. App. at 12. If the result is unfortunately a harsh one in this case, it is
because the statutes of limitations are somewhat harsh in and of themselves. Hall, 158 Mich
App at 669. See also Solowy, 454 Mich. at 225-226.6
In an effort to circumvent the application of the statute of limitations, plaintiff briefly
argues on appeal that the doctrine of reasonableness described in Solowy, 454 Mich. at 227,
should apply. Under this rule, in cases where there is a delay in diagnosis, the Michigan
Supreme Court has recognized that there must be a flexible approach to applying the discovery
rule. Id. In arguing for the application of this doctrine, plaintiff ignores, however, the basic fact
that this doctrine applies in cases of delayed diagnosis, meaning those cases in which there is a
late discovery of the injury itself and the injury’s link to the negligent act. But in this case,
plaintiff did not have a delayed diagnosis and there was never any question of the causal nexus
between her injuries and the alleged malpractice occurring in December of 2009. See id.
Plaintiff offers no authority to suggest that the doctrine of reasonableness has ever been applied
to cases where the identity of the wrongdoer is unknown, and the rationale supporting this rule—
namely, the difficulty inherent in obtaining a diagnosis in some cases—is not present where it is
the question of the wrongdoer’s identity which is at issue. See generally Walerych v Isaac, 63
Mich. App. 478, 481; 234 NW2d 573 (1975) (“Discovery of the identity of an alleged tort-feasor
is no more difficult when the wrong alleged is malpractice.”). In short, plaintiff knew of her
injury and the cause, and the doctrine of reasonableness does not apply to her delayed discovery
of Dr. Fraser’s identity.
In sum, because plaintiff’s discovery of Dr. Fraser’s identity did not trigger application of
the discovery rule, plaintiff’s complaint against Dr. Fraser, filed more than two years after her
5
Plaintiff does not allege that defendants in any way concealed the existence of her claim during
this time. Had there been evidence of fraudulent conduct to conceal a claim or a wrongdoer’s
identity, plaintiff would not be without recourse. See MCL 600.5838a(2)(a); MCL 600.5855. In
this case, it simply appears that plaintiff failed to learn Dr. Fraser’s identity in a timely manner
despite knowing the specific negligent acts giving rise to her injuries.
6
Insofar as plaintiff raises policy arguments in opposition to the application of the statute of
limitations in this case, these policy concerns pose a question for the Legislature, not this Court.
See generally Rheaume, 232 Mich. App. at 423.
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claim accrued, was untimely. See MCL 600.5838a(1); MCL 600.5805(6). Consequently, the
trial court properly granted summary disposition under MCR 2.116(C)(7).
Affirmed.
/s/ Karen M. Fort Hood
/s/ Joel P. Hoekstra
/s/ Peter D. O’Connell
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