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A Better Partnership
August 09, 2016

COA holds that a medical malpractice claim runs from when plaintiff “should have” discovered the claim, not when it “could have” discovered it

Under MCL 600.5838a, which governs claims based on medical malpractice, a medical malpractice claim must be commenced within 6 months after the plaintiff discovers or should have discovered the existence of a claim, not “could have” discovered a claim, held the Michigan Court of Appeals in Jendrusina v. Mishra, No. 325133.
This case stems from a hospital visit by plaintiff on January 3, 2011, where he presented with flu-like symptoms.  After many tests and treatments, plaintiff was diagnosed with irreversible kidney failure.  As a result, plaintiff was placed on lifetime dialysis.  Then, on September 20, 2012, plaintiff saw a nephrologist who informed plaintiff that the defendant should have sent him to a nephrologist years before and that his kidney failure could have been prevented.  The next day, plaintiff contacted an attorney and initiated the present medical malpractice claim.  Defendant moved for summary disposition arguing that the Notice of Intent and complaint was not timely filed.  Plaintiff argued that the claim was timely filed under the six-month discovery period provided by MCL 600.5838a.  The trial court granted defendant’s motion holding that the complaint was not timely filed.  Plaintiff appealed.
The Court of Appeals reviewed MCL 600.5838a and noted that the legislature specifically used the language “should have” rather than “could have” in the statute.  According to a dictionary definition, “could” indicates “possibility” whereas “should” means what is “probable.”  In addition, the statute has a standard of what is probable for a reasonable person and not a trained physician.  Here, the Court noted that defendant never provided plaintiff with copies of his previous lab reports, nor did he inform him that he had kidney disease, even after writing “chronic renal failure” in an office note in 2008. 
The Court analyzed the Michigan Supreme Court case of Solowy v. Oakwood Hosp., 454 Mich. 214; 561 N.W.2d 843 (1997), where the Supreme Court held that what the claimant should have discovered was “a possible cause of action” not a “certain cause of action.”  In Solowy, the statute of limitations had run because the plaintiff should have discovered the possible cause of action.  Here, the record did not support the conclusion that when the plaintiff was diagnosed with irreversible kidney failure in 2011, that he “should have known of a possible cause of action.”   This was because defendant never informed plaintiff of his kidney disease or of his previous lab reports.  The Court of Appeals held that the trial court erred in granting defendant’s motion for summary disposition and reversed and remanded the case for further proceedings.
J. Jansen dissented.  She stated that the plaintiff merely needed to know of a possible cause of action and that clearly was the case in January 2011.

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