Medical malpractice; The two-year statutory limitations period; MCL 600.5805(8); Accrual; De Haan v Winter; The discovery rule; MCL 600.5838a(2); Solowy v Oakwood Hosp Corp; Gebhardt v O’Rourke; Moll v Abbott Labs; Diligence; Dyke v Richard; Tolling; Haksluoto v Mt Clemens Reg’l Med Ctr; Notices of intent (NOIs)

Holding that the present evidentiary record did not show that plaintiff sent the NOIs to defendants-doctor and hospital more than six months after she discovered or should have discovered the existence of her claim, the court reversed the Court of Appeals’ judgment and remanded. Plaintiff sued defendants for medical malpractice after discovering that her mammogram may have been misdiagnosed and that she had breast cancer. The trial court rejected defendants’ argument that the complaint was untimely and denied their motion for summary disposition. The Court of Appeals reversed. But the court granted leave and reversed the Court of Appeals. It noted that the “objective discovery rule has two aspects. First, as in Gebhardt and in Solowy, a plaintiff ‘should have discovered’ a possible cause of action when the available facts would let her infer malpractice. Second, as anticipated by Justice BOYLE’s partial concurrence in Moll, a plaintiff ‘should have discovered’ a possible cause of action when the plaintiff knows facts that should arouse her suspicions and doesn’t diligently investigate.” The court rejected defendants’ argument that plaintiff should have discovered the existence of her claim when she was diagnosed with metastatic breast cancer. They claimed that “a person diagnosed with metastatic breast cancer ‘originating in a lump which had been palpable for two years[] would immediately have reason to question the prior imaging studies.’” The court declined to “impute to a plaintiff knowledge of cancer’s progression without a record basis to do so. Perhaps if the mammogram were misread on Tuesday and the cancer were diagnosed on Wednesday, we could impute to the plaintiff the knowledge that cancer doesn’t develop ‘overnight’; but that’s not the present case.” Further, it would be “procedurally inappropriate for us to conclude that [plaintiff] was diligent, but these facts aren’t enough to conclude that she wasn’t.” Given that this case “is in the pleading stage, and given the evidence that [plaintiff] engaged in behavior that could be characterized as diligent, we cannot resolve this case summarily.”

Justice Viviano concurred in the judgment, noting his agreement with the majority’s “conclusion and parts of its discussion, including that this case can be resolved on the ground that we will not impute evidence of cancer’s timetable to a plaintiff without a record basis to do so.” However, he would “not adopt the majority’s new standard applicable to the diligence analysis because it lacks grounding in our caselaw, creates a shifting time frame for the limitations period, potentially imposes additional burdens on plaintiffs inconsistent with the statute and our caselaw, and is unnecessary in light of the current framework applicable in these cases.”

Justice Zahra dissented, finding that the Court of Appeals majority “correctly applied Solowy and reversed” the denial of defendants’ summary disposition motion. Based on the evidence, “any reasonable person would seriously doubt and question whether [defendant-doctor] failed to properly diagnose her condition in 2013.” Further, the record lacked “any diligent investigation after” 5/28/15. Moreover, MCL 600.5838a(2) “provides that ‘[t]he 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.’ Because plaintiffs failed to meet this burden,” he would affirm the Court of Appeals’ judgment.