*1 1976] of Flick v Estate v ESTATE PATTERSON OF FLICK Opinion of Court Malpractice—Physicians Surgeons. 1. Limitation of Actions — and malpractice against A cause of action on based state licensed physician brought years must be of within two the time when physician treating serving the plaintiff, discontinues or otherwise years plaintiff of within two the time when discov- ers, diligence or in the exercise of reasonable should have discovered, malpractice, the asserted whichever is later. Malpractice—Discovery Malprac- 2. Limitation of Actions — Statutes—Physicians tice —Discontinuance Treatment — Surgeons. and action, malpractice arising plaintiffs right ain after during appendectomy, femoral nerve was an severed discovered malpractice immediately following operation the asserted experienced paralysis right leg when she and numbness by nerve; she and was informed her doctor that he severed the therefore, plaintiffs by action was barred the statute of limita- litigation approximately tions where the was commenced 4-1/2 years discovery malpractice after of the asserted and 3-1/2 (MCLA after discontinuance of treatment the doctor 27A.5838). 600.5805[3],600.5838; 27A.5805[3]; MSA 3. Limitation of Actions —Fraudulent Concealment —Affirmative Acts. requires Fraudulent concealment actions of an affirmative charac- purposely plaintiff. ter to conceal the of action from a S. W. Malpractice—Discovery 4. Limitation of Actions — Rule. The limitation cases does not start to run [1, [7] [6] [8] [9] [3] 47 Am Jur 2, 4, 51 Am Jur 37 Am Jur 61 Am Jur 51 Am Jur 61 Am Jur 2d, Jury 2d, Physicians 2d, 2d, 2d, References Limitation Actions 450. Fraud Limitation Actions 2d, Physicians § and Deceit 14. Points Surgeons §§ 331, 423-425, § §§ in Headnotes Surgeons 146-152. §§ 212-214. §§ 432-436. 181-185. App [May when, by the exercise of until or the date the date of care, the inva- should have discovered reasonable plaintiff. legal right belonging to the sion of a *2 Malprac- Malpractice—Discovery of 5. Limitation of Actions — Surgeons. Physicians Jury—Reasonable and Person — tice — action, arising plaintiff’s right plaintiff malpractice after in a appendectomy, during an did not femoral severed nerve was specialist she visited a over until discover her cause of action operation years her she would never who told four after the although leg, the had been use recover total of operation immediately her nerve had informed after temporarily leg was at least been cut and that however, jury a paralyzed; should remanded for the case disposition have a would discov- of whether reasonable malpractice at an earlier date. ered the Jury—Plead- Malpractice—Determination of Facts — 6. Trial — ings Minds. —Reasonable should, judgment for accelerated in a A trial court after a motion case, empaneling jury a a for determination avoid not differ as to the facts of facts minds could where reasonable pleadings. from the and conclusions be drawn Jury Reasonability. 7. — reasonability generally within the sole The determination of is province jury. of the Estoppel. 8. of Limitation Actions —Fraudulent Concealment — deliberately potential party A who has misled a a that a concealment or otherwise order to induce belief estopped relying upon not from cause of action does exist limitations. Pleadings—Court 9. Fraud — Rules. (GCR 112.2). specially pleaded Fraud must be Thorburn, Oakland, S. Appeal from James (Docket 14, 1975, Detroit. Submitted November at 22324.) appeal No. 1976. Leave to May Decided applied for. Margaret against
Complaint by Patterson Flick, deceased, Dr. R. damages estate of John for for for defend- malpractice. judgment Accelerated appeals. ant. Plaintiff Affirmed. Estate Opinion Court Freíd, P. O’Connell, & C. Sachs, Nunn
Marston, Waldman), plaintiff. (by Barry for P. Hines), (by Paul W. Suhrheinrich, P. C.
Kitch & defendant. J., D. F. P. Walsh, Before: Bashara, JJ. White,* adopt of facts the statement Bashara, P. J. We Judge dissenting opinion of White. How- from agree reached the result ever, we cannot Judge White. malprac- Michigan on action based cause of physician against must be a state licensed
tice brought years the time when within two treating physician ing serv- or otherwise discontinues plaintiff, of the time two or within *3 plaintiff discovers, the exercise of or in when the diligence discovered, the have should reasonable Dyke malpractice, later. v whichever asserted (1973). 739, Richard, 747; 213 NW2d 390 Mich part alleges negligence complaint on the severing appellant’s nerve femoral in Dr. Flick April during appendectomy of 1969. As in an appellant the as- discovered of law the matter serted by malpractice Dr. informed when she was following operation immediately he that the experienced paralysis Flick the nerve and she severed and numbness to treat the year. leg. right Dr. Flick continued
in her approximately appellant more one litigation in the case at bar commenced years approximately 1973, after 4-1/2 November malpractice discovery 3-1/2 the asserted by Dr. of treatment after discontinuance correctly granted judge accelerated Flick. The trial * Appeals by assignment. sitting judge, on the Court of Circuit App 101 [May White, J. W. S. 116.1(5), the ground on judgment, statute of action was barred limitations. 27A.5805(3), 600.5805(3); MCLA MSA MCLA Richard, 600.5838; Dyke supra. MSA 27A.5838. expanded We believe if the rule is that dissenting opinion, to the extent in the suggested it would impossible obtain acceler- virtually ated judgment grounded on statute of limita- recognize the tions. Most do not fact people that they legal have an "invasion of a right” suffered until attorney. consult with an To forestall they running of the statute of limitations to that would, point purposes, for all practical abolish the statute of limitations medical cases. Nor do we agree appellant’s contention Dr. concealed the fraudulently malprac- tice tolling the limitations. MCLA 600.5855; MSA 27A.5855. Fraudulent concealment requires actions of an affirmative character purposely right conceal of action from the Winter, plaintiff. De Haan v NW 923 Appellant’s complaint failed to allege that Dr. Flick intentionally concealed the cause of action.
Affirmed. Costs to appellees. Walsh, J.,
D. F. concurred. (dissenting). April of plaintiff, Patterson, Margaret ap- underwent an pendectomy. During the course of this operation, femoral nerve was first severed and then resutured by surgeon, Flick, Dr. John R. now *4 deceased.
Upon anesthetic, her arousal from the the plain- tiff unexpected was informed of this complication Dr. Flick himself. The immediate effects of the were injury readily apparent to the plaintiff; she v Estate feeling in any had could neither move nor however, plaintiffs the doctor, told leg. The During right. be all the mother that she would plain- the doctor assured post-operative period, crippled but that permanently tiff that she not was He to her the recovery explained slow. would be nerve and functions importance of the femoral nervous performs leg’s system. it of the part as the excuse tendered for plaintiff The recalls that wrapped nerve was mishap that extremely freakish appendix around the in an unaware fashion and that the doctor was its already been done. presence damage until the had improved over the next plaintiff’s condition to quite of 1970 she was able walk year. By May Although well but still suffered a loss of sensation. other doctors subse- saw numerous quent operation, requested to her she never an fact, it was not until leg. examination of her sought June of 1973 that additional injured reference to the specific consultation with appendage only and then when became swollen painful upon. During and ination, to walk this latter exam- plaintiff was told that she would never leg and recover the total use of her was advised attorney. consult an alleging filed in of 1973
This suit was November Dr. part on the Flick. The defend- replied judgment ant with a motion for accelerated two had since the alleging years passed since accrued, of action the statute of limitations cause plaintiff’s had suit was barred.1 expired 600.5805; provides MSA 27A.5805 of limita MCLA a basic statute injuries persons property Michigan: tions for bring damages person may any or maintain to recover "No action * * * * * * unless, persons injuries after the claim first accrued periods prescribed by the action within the of time this he commences section * * * (3) period of limitations is two for actions malpractice.” charging 600.5838; MSA 27A.5838 further defines MCLA *5 App 101 106 69 [May White, J. S.W. Dissent argument Following and the sub- oral extensive granted the de- briefs, court the trial mission prej- the case motion and dismissed fendant’s passing judge noted trial udice. The learned * * * very a borderline case close that was "a "did know Nevertheless, affair”. the results cut, knew what and she nerve had been they were, and substantial”. were appeals plaintiff now From this dismissal questions raising, for consideration. essence, two They seriatim. be discussed will
I
the so-called "Discov-
contends
imposition
judicial
ery
prevents
of accel-
Rule”
jury
judgment
a
must settle cer-
and that
erated
before such mo-
factual issues
tain fundamental
my
may
1963, 116.3. Since
tion
be decided.
analysis
authorities
reveals the
the relevant
rule, I
delve
of this
will
for some clarification
need
origins
briefly
and rationale.
into its
judicial
"Discovery
out of
Rule” evolved
litigationally
grapple
famous
with the
efforts to
problems. Byers
Sponge”
v
related
cases and
"Lost
Bacon,
(1915),
Huysman
564;
711
and
250 Pa
95 A
Kirsch,
302;
In affairs, to this sad state of Supreme Court of California announced the rule malpractice that the statute of limitations in would not run so cases long patient as the was "in ignorance disability of the cause of his and could diligence not with reasonable care and ascertain Huysman, supra, such cause”. 312; 6 Cal 2d at 57 P2d at 913. foreign
While at first limited to cases in which a
body
negligently
body,
left in the
the "Discov-
ery
expanded
Rule” has since been
to include
negligent
drugs
Ag-
medication,
introduction of
or
App
Larson,
new v
82
176;
Cal
2d
The rule has since statutory pro- exception judicially to the carved govern in mal- of actions which limitation visions practice Dyke Richard, 739; 213 cases. despite apparent Yet, sim- its NW2d pointed parties plicity, instant case have to the clarification. out the need for additional supra, Johnson, held that the statute In it was to run until the not commence of limitations did charged knowing patient that a knew or was Dyke, "wrongful committed. act” had been necessary supra, the court chose describe knowledge quantum knowledge of the "as- as Dyke opinion malpractice”. also con- serted following: tains the know, not in the exercise "As to a does who diligence not ascertain within the of reasonable could action, year period he has a cause of this
two abolishing bring has effect of his statute suit.” (Emphasis supplied.) 390 at 746-747. *7 jurisdictions added confusion. Other have to the begins law, to run when Under Federal plaintiff discovers, discovered, or should have the the "acts” which constitute malprac- alleged (CA Ashley States, 9, v 413 490 tice. United F2d (CA 1969), States, 5, v 234 Quinton United 304 F2d 1962). Delaware, In the crucial moment is "when first and be- the harmful effect manifests itself physically Layton Allen, v comes 246 A2d ascertainable”. 1968). (Del, 794, 798 Hawaiian courts held that a of action when the have cause accrues plaintiff knows know of defendant’s should "negligence”. Hospital, v Hilo 433 P2d Yoshizaki 1967). (Hawaii, 220, 223 might argued it for-
While be that various synony- mulae set forth above are meant to be of Flick v Estate Dissent W. S. mous, so are bandied long phrases as the about courts, shuttlecocks, like counsel and their clients will continue to be ill-served. To remedy situation, this phrase me to elevate the behooves Johnson, "wrongful in supra, acts” as used to the status of a term of art.
In "wrongful” ordinary speech, connotes both law, however, "harm” "injury”. the two latter words are distinct. functionally The Restate- Torts, 2d, ment of defines "harm” as "the § existence of loss or detriment in fact any kind contract, to a any from cause”. In "injury” is "the invasion any legally protected interest of another”. context,
In the medical the infliction of harm is not necessarily operation actionable. An might be performed perfection upon with technical patient who has been informed of every conceivable risk. The mere fact subsequent results do not up measure with previous expectations does not give disappointed patient any right to recover in tort. hand,
On the other the infliction injury is actionable, almost always improvement in the con dition patient of the notwithstanding. See Frank lyn Peabody, NW mind, With this distinction I conclude that the term "wrongful acts” as used in the Johnson discovery rule should equated with the term "injury” as that word is defined in the Restate- Torts, ment of supra. Musgrave, Hall v 517 F2d 1975) (CA 1163, 1168, n 2 (Celebrezze, J, dissent- ing). made, When this reconstruction the John- son rule reads as follows: "The limitation statute or statutes *8 cases do not start to run until discovery, the date of App 69 [May care, reasonable the when, exercise of by the
the date legal of invasion a have discovered plaintiff should [the right belonging plaintiff].” to immediately
Here, informed right leg that her cut and that her nerve had been temporarily paralyzed. She thus had was at least resulting knowledge Viewing and "harm”. "act” of both an light deposition pleadings in a and equally her, clear it is that she to most favorable fact, her cause action not, in "discover” did until she visited a specialist in June of 1973. have discov- a reasonable would Whether injury an at an acts constituted ered these I would demonstrated. earlier date remains be disposition ques- jury this factual remand for a Winfrey Farhat, 380; 170 382 Mich NW2d tion. v (1969). 1963, 116.3. interpreted man- as This decision should not dating jury of facts whenever the a determination ques- pleadings a rule or evidence raise minds could not differ as to tion. Where reasonable therefrom, and conclusions be drawn the facts may, should, court and avoid needless the trial delay empaneling expense in the of a involved App jury. E.g., Walerych Isaac, NW2d 573 reasonability
However, the determination province jury. generally within the sole of the training experience, Through mem- both comfortably accus- the bench have become bers of dealing legal of the tomed to intricacies doing oppor- process. frequently so, we have inlay presumably tunity no- our own sensitive upon rationality tions of and reasonableness litigants circumstances in which find mundane themselves. temptation It is a to be resisted. Our panel legal system entrusts such matters to *9 Ill Estate of White, by W. S. J. daily experi- whose varied disinterested citizens mixture ences with a curious of inno- endow them unique quality It is this cence and common sense. upon worldly which their decisions the confers patina purely absent from which is sometimes Reasonability judicial is an determinations. elusive concept incapable except by of definition contrast expectations community. rep- the with the of The community, jury, i.e., resentatives of that the should have the final vote.
II my application In view of decision as to the of provident go rule, the it seems to on to plaintiffs allay any discuss second issue in order to upon may confusion which arise remand.
Simply plaintiff requests stated, this Court alleged malpractice to decide whether "fraudulently running concealed” so as to toll the 600.5855; of the statute of limitations. MCLA MSA 27A.5855. doing plaintiff inferentially so,
In asks this pleadings. opportunity Court to rewrite her must be respectfully declined. essentials,
Reduced its to fraudulent conceal- nothing riposte ment is more than an affirmative concept to a limitation of action is defense. The premised upon proposition of statutes designed protect limitations are shields unwary prosecution musty from the claims plaintiffs. dredged up by tardy However, a where deliberately potential has defendant misled a plaintiff by otherwise, concealment or in order not, in induce the belief that a cause of action does fact, exist, that defendant seeks to use as a It limitations sword. is this latter use which App 69 [May- by S. Dissent W. concealing party estop- is forbidden ped law. upon relying the statute because his from timely knowledge prior both actions indicate possible liability intent to avoid deliberate subterfuge. same any
An essential element in claim of fraudulent is, course, concealment fraud itself. Fraud must specially pleaded. any 1963, 112.2.2 event, is in since fraudulent concealment the na- party seeking defense, ture of an affirmative raise it must give at least some indication thereof *10 pleadings. in its 111.7. plaintiff require neither of these has met despite ample opportunity
ments
to do so. The first
inkling
any
claim of fraudulent concealment is
during
hearing
found to
have occurred
motion
plaintiff’s
There,
at which
case was dismissed.
response
leading question
issue was
to a
raised
by
only
the court. The
other indication of such a
hindsight
claim—and here we have the benefit of
paragraph
complaint
—is discovered in
10 of the
plaintiff alleges "negligent
wherein the
conceal
enlightened
ment”. This Court has not been
as to
taxonomy
strange
the
to
of this
animal. It will suffice
say,
may
distinguished
however,
that
from
fraudulent concealment
its inherent
lack of
specific intent, i.e., the deliberate intent to deceive
Winter,
293;
and mislead. De Haan v
NW 923
258 Mich
(1932),
Hier,
Eschenbacher v
676;
fraud
and that
has no actual or
knowledge
put
inquiry. Original Mining
of facts
to
sufficient
him on
Casad,
Milling
71;
(1930),
quoted
Co v
210 Cal
If the feels may, concealment, prove she dence fraudulent permit it, amend choose should the trial court pleadings claim. At this such a indicate juncture, be said. more need no proceed- for further and remand
I would reverse opinion. ings with this consistent