Medical malpractice; Statute of limitations; The “discovery rule”; Solowy v Oakwood Hosp Corp

Concluding that the evidence failed to establish a genuine issue of material fact that plaintiff-Baase had knowledge of her claim on 3/31/22, the court affirmed summary disposition for defendant-Dr. Stewart. The court found that similar “to the plaintiff in Solowy, Baase became aware of her claim against Dr. Stewart when she sought a second opinion from” another doctor (Dr. F). It noted that when “asked what occurred at her first appointment with Dr. [F] on [3/31/22], Baase testified that he took x-rays and told her that her ACL anchor button was in the wrong place and her partial knee replacement was in the wrong place. He showed her on the x-rays what he was talking about and told her that he would perform a revision surgery.” While Baase asserted “that she must have gotten her dates confused, Dr. [F’s] record dated [3/31/22], indicates that he took x-rays on that date, although the record does not indicate that the ACL anchor button or the partial knee replacement were in the wrong locations.” It was true that Dr. F’s 3/31/22 record did “not comport with what Baase claimed he told her on that date.” However, her “physical therapy records corroborate her testimony. Dr. [F’s] referral stated that he referred Baase to physical therapy because of a ‘failed left ACL reconstruction.’ At her initial physical therapy examination on [4/20/22], Baase stated that Dr. [F] informed her that her ACL reconstruction failed, and she required an ACL reconstruction as well as a revision of her partial-knee-replacement surgery. Taken together, Baase’s deposition testimony and physical therapy records indicate that she was aware on [3/31/22], of her possible claim against Dr. Stewart.” While she contended “she must have gotten her dates confused at her deposition, she fails to explain how she otherwise acquired the information she conveyed at her initial physical therapy examination on” 4/20/22. Baase asserted “that if she believed that Dr. Stewart committed malpractice on [3/31/22], it did not make sense for her to treat with him again on [4/21/22]. Baase testified, however, that Dr. Stewart ‘discharged’ her on that date and told her that she could discontinue the antibiotics.” Thus, there was “a plausible explanation for her visit with Dr. Stewart on [4/21/22], notwithstanding her knowledge of her claim against him.” In light of this record, “the trial court properly granted Dr. Stewart’s renewed motion for summary disposition on the basis that Baase’s claim was untimely filed.”