In this medical malpractice action, plaintiffs appeal by right the order granting summary disposition to defendants under MCR, 2.116(C)(7) because plaintiffs’ complaint was untimely under MCL 600.5838a(2); MSA 27A.5838(1)(2). We affirm.
1. underlying facts
In 1987, forty-one-year-old plaintiff Muriel Sills, who had a twenty-year history of back trauma and back surgeries, complained of back pain and. difficulty walking. Defendant Dr. Howard Glazer admitted plaintiff*
In 1991, plaintiff complained to Glazer of pain and swelling in her legs and knees. In May, 1993, Glazer ordered an x-ray of plaintiff’s right knee. Glazer told plaintiff that in his opinion she had arthritis. In October 1993, Kelly ordered a Magnetic Resonance Imaging (mri) of plaintiff’s right knee. The mri revealed osteonecrosis (a change in bone and cartilage), whiсh can be caused by steroid use. Doctors eventually replaced plaintiff’s right knee.
In her March 1994 suit, plaintiff alleged in part that in 1987 defendants failed to provide the proper diagnosis, improperly ordered extremely high doses of stеroids, and neglected to warn her of the risks of steroids. The circuit court granted summary disposition for defendants, ruling that plaintiff’s action was untimely under the statute of limitation, MCL 600.5838a(2); MSA 27A.5838(1)(2). The court also ruled that defendants’ conduct did not meet the fraudulent conduct standard under MCL 600.5838a(2) (a); MSA 27A.5838(1)(2)(a). Plaintiff appeals.
n. analysis
Plaintiff first argues that defendants did not assert as an affirmative defense the statute of repose upon which they rely on appeal. Plaintiff contends that, because the Legislature has recognized a distinction between a statute of limitation and a statute of repose, defendants should have referenced the statute as one of repose rather than limitation.
Defendants moved for summary disposition under MCR 2.116(C)(7); such а motion asserts that the cause of action is statutorily barred.
Witherspoon v Guilford,
MCL 600.5838a(2); MSA 27A.5838(1)(2) provides in part:
Except as otherwise provided in this subsection, an action involving a claim based on medical malpractice may be commenced at any time within the applicable period pre- ' scribed in section 5805 or sections 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. Howevеr, except as otherwise provided in section 5851(7) or (8), the claim shall not be commenced later than 6 years after the date of the act or omission that is the basis for the claim. The burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition, or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim is on the plaintiff. A medical malpractice action that is not commenced within the time prescribed by this subsection is barred.
Plaintiff contends that MCL 600.5838a(2); MSA 27A.5838(1)(2) is a statute of repose, not limitation. A statute of repóse рrevents a cause of action from ever accruing when the injury is sustained after the designated statutory period has elapsed.
O’Brien v Hazelet & Erdal,
Moreover, plaintiff claims that her injury occurred in 1987, when defendants treated her with steroids during her hоspitalization. MCL 600.5838a(2); MSA 27A.5838(1)(2) bars her cause of action because plaintiff brought suit outside the statutory period after sustaining injury. MCL 600.5838a(2); MSA 27A.5838(1) (2) thus acted as a statute of limitation in this case. Defendants raised the statute of limitation as an affirmative defense. Plaintiffs argument that defendants did not refer to MCL 600.5838a(2); MSA 27A.5838(1)(2) as a statute of repose is thus immaterial here. Likewise, plaintiffs claim that defendants did not give her sufficient notice of their statutory defense is without merit. Defendants properly asserted the stаtute as an affirmative defense. MCR 2.111(F)(3)(a).
Plaintiff next attacks the circuit court’s finding that defendants did not engage in fraudulent conduct. Plaintiff asserts that defendants prevented her from discovering the existence of her claim by failing to inform her of the risk оf steroids. Plaintiff adds that Glazer misrepresented her condition by diagnosing arthritis rather than necrosis.
MCL 600.5838a(2)(a); MSA 27A.5838(1)(2)(a) provides that the limitation period does not apply “[i]f discovery of the existence of the claim was prevented by the fraudulеnt conduct of the health care professional against whom the claim is made . . . or of the health facility against whom the claim is made . . . .” Thus, if plaintiff demonstrates that defendants displayed fraudulent conduct, her claim survives the statutory limitatiоn period.
This Court has not yet interpreted “fraudulent conduct” as it is used in MCL 600.5838a(2)(a); MSA 27A.5838(1)(2). To define fraudulent conduct, we look to cases involving the limitation period and fraudulent concealment under MCL 600.5855; MSA 27A.5855.
4
Courts consider together statutes that have the same
general purpose when ascertaining the intent of the Legislature.
In re Miller Estate,
Under MCL 600.5855; MSA 27A.5855, the statute of limitation is tolled when a party conceals the fact that the plaintiff has a cause of action.
Smith v Sinai Hosp of Detroit,
In her complaint, plaintiff did not claim that defendants affirmatively acted or made misrepresentations to prevent her frоm discovering the alleged malpractice. Although plaintiff claimed that defendants failed to inform her of the risks of steroids, that allegation was part of her general claim of malpractice, not a claim of fraud. While Glazer mаy have misdiagnosed plaintiffs condition, plaintiff did not show that he acted fraudulently to conceal her potential cause of action. A misdiagnosis is not an affirmative act to conceal a claim. Plaintiff has not sufficiently asserted that defendants committed fraudulent conduct so as to toll the statute of limitation.
Plaintiff next asserts that she did not discover, nor should she have discovered, the existence of her
claim at least six months before the limitation period expired. Plaintiff contends that the six-year limitation for discovery of her malpractice claim thus should not apply. MCL 600.5838a(2); MSA 27A.5838(1)(2) provides in part that the action must be commenced within six months after the plaintiff discovers or should have discovered the existence of the claim but no later than six years after the date of the act or omission that is the basis for the claim. Our Supreme Court has noted that the above statute sets a limit for discovery of a medical malpractice сlaim at six years from the date of the act or omission that is the basis of the claim.
Chase v Sabin,
Finally, plaintiff contends that the statute violates her due process and equal protеction rights. We review the constitutionality of a statute, which is a question of law, under the de novo standard.
In O’Brien, supra, our Supreme Court addressed whether a six-year period of limitation, MCL 600.5839; MSA 27A.5839, violated the plaintiffs due process and equal protection rights. Although the statute in that case applied to actions against architects, engineers, contractors, and land surveyors, the Court’s analysis equally is applicable. Under O’Brien, to determine whether a statute violates due process, we ask whether it bears a reasonable relation to a permissible legislative objective. O’Brien, supra at 13.
Statutes of limitation are designed to encourage the rapid recovery of damages, to penalize plaintiffs who have not been assiduous in pursuing their claims, to afford security against stale demands when the circumstances would be unfavorable to a just examination and decision, to relieve defendants of the prolonged threat of litigation, to prevent plaintiffs from asserting fraudulent claims, and to remedy the general inconvenience resulting from delay in asserting a legal right that is practicable to assert.
Lemmerman v Fealk,
The Legislature has the power to determine that a particular cause of action cannot arise unless it accrues within a specified period.
O’Brien, supra
at 15. Courts should uphold statutes of limitation unless the consequences are so harsh and unreasonable that they effectively divest a plaintiff of the court access intended by the grant of the substantive right.
Bissell v Kommareddi,
Likewise, to decide whether a statute violates equal protection, courts must determine whether the classification is rationally related to a legitimate governmental interest. O’Brien, supra at 13. In Bissell, supra, this Court addressed equal protection in the context of MCL 600.5851(7); MSA 27A.5851(7), which provides in part that a medical malpractice claim that accrues to a person older than thirteen is subject to the limitation period in MCL 600.5838a(2); MSA 27A.5838(1)(2). This Court held that the state unquestionably has a legitimate interest in securing adequate and affordable healthcare for its residents. Additionally, this Court stated that it could reasonably assume that a decrease in exposure to malpractice claims would encourage healthcare providers to remain in this state. Bissell, supra at 579-581. Likewise, in this case, Michigan has a legitimate interest in supporting affordable and adequate healthcare for its residents. Setting an upper limit for the period within which a plaintiff may bring medical malpractice decreases doctors’ exposure to malpractice claims. The classification is rationally related to those interests.
Affirmed.
Notes
Because plaintiff Thomas Sills’ сlaims are derivative, “plaintiff” will refer to Muriel Sills only for clarity in this opinion.
Necrosis is defined as “death of a circumscribed portion of animal or plant tissue.” Random House Webster’s College Dictionary (1995), p 904.
The initial dose of Solu-Medrol was one hundred milligrams every eight hours. On July 18, 1987, Glazer ordered that the dose be decreased in frequency to every twelve hours. On July 20, 1987, Glazer ordered that the dose be reduced to fifty milligrams. On July 23, Glazer increased plaintiff’s steroid dosage to one hundred milligrams every twelve hours. On July 27, Glazer reduced the dosе to seventy milligrams every twelve hours. On July 28, Glazer again decreased the dose to forty milligrams every twelve hours.
For cases considering acts that constitute fraudulent concealment in the context of medical malpractice, see, e.g.,
Eschenbacher v Hier,