Kincaid v. Cardwell
300 Mich. App. 513
Mich. Ct. App.2013Background
- Kincaid injured her left foot on March 17, 2008; x-rays showed no fracture but she subsequently sought treatment for foot pain.
- April 25, 2008: Cardwell examined her; April 28, 2008 MRA showed arterial disease; May 7, 2008 findings discussed; June 6, 2008 Doppler showed reduced flow and occlusion.
- July 21, 2008: below-the-knee amputation; suit against Cardwell and St. Clair Cardiovascular filed November 30, 2010.
- January 3, 2012: defendants moved for summary disposition arguing accrual was April 25 or May 7, 2008; notice of intent tolled for 182 days.
- Kincaid died October 23, 2011; the court later affirmed dismissal of the case as untimely.
- Kincaid filed an amended complaint in March 2011 naming Cardwell and St. Clair Cardiovascular; earlier dismissals occurred for lack of service on others.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| accrual date under medical malpractice law | Kincaid argues discrete acts after June 1, 2008 created later accrual dates | Defendants contend accrual began April 25, 2008, with last-treatment step; no later accrual dates | No, accrual limited to April 25, 2008; timely only if later acts constitute discrete events not shown |
| continuing-wrong/last-treatment rule applicability | Plaintiff contends continuing-adherence to misdiagnosis could yield later accrual dates | Michigan has abolished last-treatment rule; no continuing-wrong doctrine to extend accrual | Held, continuing-adherence did not establish discrete later acts; last-treatment rule effectively abolished for this case |
| sufficiency of pleading to identify acts or omissions | Complaint insufficiently details acts/dates; notice aided discovery of accrual | Complaint vague; inability to identify post-April 25, 2008 acts; amended pleadings allowed but insufficient | Court held pleadings failed to put defendants on notice of post-April 25, 2008 acts; untimely |
Key Cases Cited
- Dacon v Transue, 441 Mich 315 (1992) (pleading must identify specific acts or omissions for malpractice claim)
- McKiney v Clayman, 237 Mich App 198 (1999) (continued adherence to initial diagnosis not enough for new accrual date; must be discrete act)
- Morgan v Taylor, 434 Mich 180 (1990) (last-treatment rule abrogated for post-1986 medical malpractice claims)
- Zwiers v Growney, 286 Mich App 38 (2009) (summary disposition when factual questions exist about statute of limitations)
- Barnard Mfg Co, Inc v Gates Performance Engineering, Inc., 285 Mich App 362 (2009) (burden shifting on summary disposition; notice and evidence considerations)
- Turney v Detroit, 316 Mich 400 (1947) (statutory interpretation of limitations defenses; burden on defendant)