Medical malpractice; The two-year limitations period; MCL 600.5805(8); The “discovery rule”; MCL 600.5838a(2); Solowy v Oakwood Hosp Corp; Bowman v St John Hosp & Med Ctr; Distinguishing Jendrusina v Mishra; Notice of intent (NOI)

The court held that because the facts available to plaintiff following her appointment with an eye specialist were sufficient to allow her to infer malpractice by defendant-eye doctor, she should have discovered her claim at that time. Because she filed her complaint more than six months after the appointment, and more than two years after her final visit with defendant, it was time-barred, and the trial court should have granted summary disposition for defendant. Roughly 18 months after being informed by a specialist that she suffered permanent vision damage as a result of defendant’s delay in diagnosing her glaucoma, plaintiff served defendant with a NOI asserting this information. Several months later she filed her complaint against defendant. The trial court denied defendant’s motion for summary disposition. On appeal, the court agreed with defendant that she was entitled to for summary disposition. “Applying the standard announced in Solowy and reiterated in Bowman to the facts of this case, we have little difficulty concluding that plaintiff ‘should have discovered’ a possible cause of action” when the specialist informed her that she had suffered permanent vision damage due to the delay in diagnosing her glaucoma. Based on the information known to plaintiff after that appointment, “plaintiff ‘could have inferred, without speculation or conjecture, that [defendant] might have committed malpractice,’ and she therefore '“should have discovered” a possible cause of action’ at that time.” Further, contrary to plaintiff’s argument, defendant provided support for her claim that the specialist “told plaintiff that her permanent vision loss was the result of a delayed diagnosis” by pointing to plaintiff’s NOI, wherein she stated that at this appointment, she was told by the specialist that “‘her optic nerves have been damaged and cannot be repaired, a direct result of the delayed diagnosis.’” Finally, the court distinguished Jendrusina, noting it “simply does not support plaintiff’s argument that ‘[o]nly when [plaintiff] possessed sufficient knowledge of . . . the standard of care for optometrists diagnosing and treating glaucoma did the statutory obligation to institute the instant claim within 6 months begin.’ Yet, even if Jendrusina did support plaintiff’s argument (which it does not), it would unquestionably conflict with both Solowy and Bowman, and we therefore could not follow it.” Reversed.