*1 Strоng Hospital v STRONG PONTIAC GENERAL HOSPITAL 20, August
Docket No. 54291. Submitted at Detroit. Decided 10, 1982. appeal applied June Leave to for. Tracy Strong, three-year-old girl, was admitted to Pontiac Hospital General for the removal of her tonsils and adenoids. Tracy’s signed malpractice agree- mother a medical arbitration behalf, Tracy’s ment on which was not revoked the 60- within day period provided by During surgery рerformed statute. Bullard, M.D., necessary Rockwood it became to insert a Strong’s bleeding. catheter in Miss nose to control excessive place by clamp The catheter was held in means of a attached to Tracy Strong’s Subsequent surgery, the end of nose. Miss Strong permanent disfigurement, breathing problems suffered problems. friend, Tracy Strong, by and emotional her next Strong, Jr., Clarence A. and Clarence A. individu- ally, brought malpractice Court, suit in Oakland Circuit against Bullard, Pontiac General and Rockwood M.D. [3-6] [4-6] [5] [1] [2] Statute of limitations When Applicability, Interest of 61 Am Jur Disqualification Constitutionality of arbitration statutes. 55 ALR2d 432. 46 Am Jur 61 Am Jur 5 Am Jur tative physicians, surgeons, or the like. 89 ALR2d 1180. physician, surgeon, dentist, limitations 320. tionship 80 ALR2d 368. 322. litigant. 21 ALR3d 1369. 61 Am Jur Am Jur statute of limitations commences to run capacity, against physician, surgeon, dentist, 2d, 2d, Physicians, Surgеons, judge 2d, Physicians, Surgeons, 2d, Judges judge applicable malpractice References 2d, Physicians, Surgeons, 2d, Hospitals to Arbitration and Award negligence in an official or judge to one who is a disqualification. §§ applicable 98-101,179, for Points action having or similar Asylums representative capacity, party against hospital, 10 ALR2d 1307. and Other Healers §§ decided different case in Headnotes and Other Healers 232. 180. §§ and Other Healers 320. and related actions 8, 9, 39.§ in an official or practitioner. or similar 97-99. against action of statute of practitioner. § 80 ALR2d represen- § 316, 321, or rela- against against against App J., court, Templin, granted accelerated Robert L. Strong the claim of Clarence because the defenda'nts governing ac- barred Tracy was barred becausе the claim of tions and *2 plaintiffs by agreement signed her mother. The arbitration malpractice act appeal, alleging arbitration is the medical requires the of the it one of members because unconstitutional physician trial court panel and the to be a arbitration judgment granting in favor of Dr. Bullard erred in accelerated plaintiff Strong, Jr. of Clarence Held: as to the claim granting accelerated 1. trial court’s order The Strong’s against plaintiff Tracy be should the defendants malpractice arbitration act should The entire medical reversed. composition of The the arbitration unconstitutional. declared panel prescribed by requires its three that one of statute physician hospital where a or administrator members be a defendаnt; constitutionally hospital a sole this creates is against patients high probability who of actual bias intolerable panel. the come before arbitration granting judgment in 2. trial court erred in The plaintiff Dr. Bullard as to the claim of Clarence favor of upon period malpractice for ac- the based agreed pay Dr. for treatment of Bullard the tions. Because during injuries Trаcy Strong surgery, by the "last received malpractice purposes was for the treatment” statute by physician which Dr. date of the last treatment the girl. Although personally did Dr. Bullard not Bullard sent treatment, acting Bullard’s be- another at continue hest did continue treatment. and remanded. Reversed Gillis, P.J., not J. H. dissented. He does believe malpractice unconstitutional because medical arbitrаtion act is panel provides must be a it that one member of the arbitration Furthermore, physician. he of whether believes that issue alleged fraudulently malpractice Dr. Bullard concealed the arranging Tracy Strong’s physician at treatment another charge thereby period no tolled of limitations for Strong, Jr.’s, malpractice preserved not appellate in the rеview because it was not raised trial court. He defen- believes that the court did err in trial not judgment. He dants accelerated would affirm. op the Court Malpractice. — 1. Arbitration Medical malpractice Michigan The medical act unconstitution- arbitration deprives ally patient process right hearing of his due to a impartial requires before a fair and tribunal because it panel one of the members of the arbitration abe or hospital hospital administrator where a is a sole defendant. Judges — Disqualification. 2. judge disqualified
A or decision-maker should be on the basis of process hearing showing due from a case without a of actual (1) judge pecuniary bias where the or decision-maker: has a (2) case, target interest in the outcome of thе has been the personal (3) him, party abuse or criticism from the before (4) involving parties, enmeshed in might other matters or prejudged prior participation have the case because of as an accuser, investigator, fact-finder or initial decision-maker. Malpractice. — 3. Limitation Actions Medical alleging professional limitations for an action years; is two an action for accrues at professional person the time treating that the discontinues or serving otherwise pseudopro- in a 'capacity fessional as to the matters out of which the claim for arose, regardless of the time the discovers *3 knowledge claim; or otherwise has of the a cause of action for malpractice may be commenced within six months аfter the plaintiff discovers or should have discovered the existence of claim; moreover, discovery the where of a claim’s existence is any person hindered the fraudulent concealment of liable claim, may for the the action years be commenced within two discovery after the date of discovery or the date when should (MCL 600.5805[4],600.5838[1],600.5855; have been made MSA 27A.5855). 27A.5805[4],27A.5838[1], — Malpraсtice — 4. Limitation of Actions Medical Last Treat- ment Rule. purpose The of the "last treatment” rule for the limitations period permit patient medical actions is to a to physician continue treatment with a after the commission and discovery hope resulting misfeasance with the the problem may legal proceed- be remedied without recourse to ings; such a physician-patient rule is believed to foster better relationships. Physicians Surgeons Malpractice — — 5. and Medical Last Treatment Rule. physician
Treatment is not merely continued when a a refers patient pur- a second for further treatment for Ápp 143 117 Mich the Court period in rule of the limitations poses of the "last treatment” malpractice actions. medical Gillis, P.J. J. H. Dissent Malpractice. — Medical 6. Limitation of Actions charging years an for two malpractice; that a at the time a for accrues claim serving plain- treating or otherwise discontinues pseudoprofessional capacity tiff in or regardless malpractice arose for matters out of which or otherwise had knowl- discovers of the time may claim; edge for cause of actiоn after the discovers within six months commenced (MCL of the claim the existence should have discovered 27A.5838[1]). 600.5838[1]; 27A.5805[4], 600.5805[4], MSA Greenberg, G. Alan plaintiffs. Portnoy, Leader, P.C., for defen-
Wilson, & Basso Hospital. dant Pontiac General Kerr, Weber, for defendant Rockwood Russell & Bullard, M.D. Gillis, P.J., T. M. and H. Burns
Before: J. Kaufman, N. J. JJ. appeal right as of
Per Curiam. Plaintiffs 20, 1980, September court orders lower defendants. de- Tracy Strong Plaintiff admitted 1978, hospital January fendant adenoids. three- removal оf her tonsils and When her hosptial, Tracy was admitted to year-old *4 mother, Strong, signed malprac- a medical Loretta This agreement on her behalf. tice arbitration 60-day agreement was not within revoked statute, 600.5042(3); MSA period provided MCL 27A.5042(3). Opinion op the Court 30, 1978, January operation
On was per- formed on Tracy by defendant Bullard and on 1, 1978, February discharged she was from the hospital. comрlaint
Plaintiffs’ alleges that the adenoid operation was negligently performed and resulted in the permanent disfigurement, breathing prob- lems and problems emotional Tracy Strong. in Specifically, plaintiffs alleged their com- plaint during that the adenoid it operation became to insert a catheter necessary nose to Tracy’s control bleeding. certain excessive This catheter was held in place by clamp means of a attached to the end of Tracy’s nose. Plaintiffs claim defen- dant Bullard failed to order negligently hospi- tal staff to remove the periodically clamp securing the catheter so as to insure an adequate blood flow to Tracy’s nose. Plaintiffs state that in addition to Tracy’s disfigurement, breathing problems problems, emotional she undergo will have to plas- tic as a surgery result of defendant Bullard’s negligence. trial,
Prior defendants Pontiac General Hospital and Bullard moved for accelerated judg- ment on ground the individual claim for expenses father, medical of Tracy’s was barred statute of limita- governing tions MCL actions. 600.5805(4), 600.5838; 27A.5805(4), MSA 27A.5838. Defendant argued also the malpractice Tracy Strong was barred because of the agreement arbitration signed by her mother. De- fendants’ granted motions were September 1980. Plaintiffs now appeal right. as of
Plaintiffs argue first the R. Hood-McNeely- Malpractice Geake Arbitration Act of 1975 is un- constitutional because it requires that one of the *5 App 143 117 Mich
148 Opinion of the Court physician. be a panel of the arbitration members We agree. impartial a fair and litigant a right
The of Due Pro- by the protected interest tribunal is an In Amendment. the Fourteenth cess Clause State, 395 Mich 347; 235 Dep’t of Crampton v (1975), Court Michigan Supreme 352 the NW2d in which a decision- situations identified four from challenged disqualified and may be maker no has been there a case even where hearing (1) where the decision- bias: showing actual in outcome of interest the has a pecuniary mаker (2) has been dispute, where decision-maker a criticisms from abuse or target personal a (3) him, the deci- where in the case before party involving in other matters is enmeshed sion-maker (4) the decision- and where parties, one of in the be- prejudiced case may maker have been as ac- an prior participation him because of fore cuser, or initial dеcision- investigator, fact-finder maker. panel arbitration composition that one of its three
prescribed requires statute physician hospital a administrator members be the sole defendant. As hospital where a Hospi Court held in Jackson v Detroit Memorial tal, (1981), 202; 110 312 212 and App Mich NW2d Hospital, Piskorski v Art Centre App (1981), 22; requirement that a 312 NW2d a of the tribunal be creates member a of ac high probability intolerable constitutionally against come plaintiff-patients tual bias who before Metriya Morris v See panel. arbitration also kool, 110, 121-140; App 107 Mich 309 NW2d v (1981) (Bronson, Williams dissenting), J., O’Connor, 613, 616-624; 310 App 108 Mich NW2d (1981) (T. Burns, P.J., dissenting). M. Because op the Court requirement statutory member of the panel be cannot be reasonably sepa- rated from malprac- the remainder medical act, tice arbitration the entire act must be de- Therefore, clared unconstitutional. we reverse the lower court order against Strong.
to defendants plaintiff Tracy *6 We also hold that trial in grant- the court erred ing favor of Dr. Bullard upon based the statute of limitations. of for an alleging professional mal- practice years. 600.5805(4); two MCL MSA 27A.5805(4). 600.5838(1); Under MCL MSA 27A.5838(1), malpractice action accrues person "at time treating the that discontinues or other- serving wise fessional claim for the in a pseudopro- or capacity as to the matters out of which the arose, regardless of the time the plaintiff claim.” knowledge discovers otherwise has of the Irrespective operation 600.5805(4); of MCL 27A.5805(4) MSA 600.5838(1); and MCL MSA 27A.5838(1), a cause of action for malpractice may within commenced six months after the plain- tiff discovers or should hаve discovered the exis- Moreover, tence of the claim. where discovery of claim’s by existence is hindered the fraudulent claim, concealment any person liable action may be commenced after years within two the date of discovery discovery or the date when 600.5855; should have been made. MCL MSA 27A.5855. case,
In the instant admitted Tracy Strong was 29, into Pontiac General оn January 1978, for treatment of chronic inflammation of the App 117 op the Court performed was operation An adenoids.
tonsils and discharged was and the child following day 1, 1978. Plaintiffs February facility from the Tracy operation, after immediately allege Giam- to Dr. Dr. Bullard Strong was referred during sustained injuries for treatment marco Dr. Bullard advised Plaintiffs were surgery. tendered follow-up care of the fоr all pay would would be expenses details and Tracy doctors. the two out between worked least until at Dr. Giammarco treated was com- litigation present 1980. The March of on June menced 1980.. timely under not litigation was
Clearly, this 600.5838(2); of MCL discovery provision six-month 27A.5838(2). referred Dr. Bullard When MSA agreed pay to Dr. Giammarco plaintiffs readily appar- have been expenses it should future existed. Fоr possible ent that a reason, alleged could the circumstances same plain- concealment a fraudulent not constitute Clar- Nonetheless, we conclude claims. tiffs’ *7 Jr.’s, Dr. against of action cause ence 1980, when March of until Bullard did not accrue by Dr. Giammarco. last rendered treatment was Giammarco, Dr. Dr. treatment By for providing * * * ain to continued "otherwise Bullard serv[e] аs to capacity pseudoprofessional or arose. out of which” this suit the matters to rule is treatment” The the "last purpose a with to treatment patient a continue permit discovery of after the commission physician prob- hope resulting misfeasance with legal recourse to lem remedied without may to better Such a rule is believed foster proceedings. relаtionships. physician-patient " it rule is that for the termination justification 'The op the Court strengthens physician-patient relationship. pa- The upon may rely tient ability the doctor’s until the rela- tionship is terminated and the oppor- has the treatment, give tunity correction of short, including to full the immediate
any in part. errors on his In thought it was the termination rule is to conducive that mutual confidence which is essential physician-patient relationship.’ "Thus, require patient a to file suit for during the particular course of treatment a injury or disease when he believes or reasonably should be- lieve that he mutual confidence Such a unacceptable ahas destroy would this
in physician-patient relationship. requirement place patient would in the deciding
situation of
whеther to continue
ongoing
the
forfeiting
treatment and thus risk the
chance
right
relationship,
bring
date,
his
suit at a later
and,
terminate
perhaps
the
opportunity
deny
phy-
correcting
sician the
his error.” Ishler v
Miller,
447, 449;
St
Ohio
2d
384 NE2d
(1978).
However,
mind,
with
policy
even
in
treat-
ment
is not continued when a physician merely
a patient
refers
to a
second
for further
Cook,
E.g.,
548;
treatment.
Florio v
65 App Div 2d
(1978),
Wilmington
NYS2d 949
Collins v
Medi-
Inc,
1973).
Center,
cal
(Del,
Here, Dr. Bullard did although Giammarco, Bul- acting at treatment, Dr. continue behest, lard’s did. best rule is "last treatment” policy It preferable is analysis.
advanced provi- health care be taken corrective actions legal the need possible when without ders reme- such undertakes When recourse. treat- continues obviously dial himself he should suit for subsequent ment. A farms differently no when treated own his remedial treatment at subsequent out the patients require would expense. To hold otherwise corrective foregoing possible to between choose reliеf right legal foregoing their measures offers encourage patients to view would and thus This eye. with a jaundiced measures of corrective strong hardly physician-pa- be conducive would reasons, hold that relationships. For these we tient Dr. Strong with provided Tracy Dr. Bullard when to "otherwise care he continued Giammarco’s result, Clar- and, patient, serve” action, Jr.’s, commenced Strоng, cause ence treatment, of Giammarco’s last within two years accel- remains viable. The trial court’s regarding of Dr. Bullard erated favor Jr.’s, inappro- Strong, cause action was Clarence reversed. priate and therefore proceedings. Reversed remanded further (dissenting). reasons J. H. P.J. For Gillis, Siang, in Brown v Judge stated by Bashara (1981), disagree I 91; App NW2d mal- finding with the the medical majority’s is unconstitutional. practice arbitration act respect the individual claims of With persuaded am not I *9 153 Pontiac v by J. H. P.J. Gillis, Dissent granting court in lower erred defendants’ motions judgment. provi- for accelerated Pursuant 27A.5805(4), 600.5805(4); sions MCL period MSA "the years charg- 2 limitations an action ing malpractice”. malpractice A claim for accrues treating at the time that a "discontinues serving plaintiff or otherwise in a pseudo-professional capacity as to the matters out regardless claim for arose, of which the plaintiff of the time the discovers or knowledge otherwise has of the claim”. MCL 27A.5838(1). 600.5838(1); MSA Subsection 2 of provides upon § 5838 further that a claim based malpractice may brought any at time within period § of limitations set forth in 5805 or "within 6 months after discovers or should have claim, discovered the existence of the whichever is later”. Strong, argues Jr.,
Plaintiff Clarence that defen- fraudulently alleged dant Bullard concealed the by arranging Tracy’s in this case charge, telling plaintiffs treatment at no that attorney by telling an was not needed and them permanent Tracy scarring. would have no Strong, Jr., contends, Plaintiff Clarence therefore, statute, the fraudulent concealment MCL running 600.5855; 27A.5855, MSA tolled the present malpractice for the ac- tion.
After a careful examination of the lower court record, I fail to find where Strong, argument Jr., Therefore, raised this below. preserved this issue has not been for review. Pen- Seaway Hospital, App ner v 697; 102 Mich 302 (1981). parenthetically note, 285 however, NW2d I persuaded by I am not the merits argument any clearly in event. The record estab- App Mich Gillis, P.J. J. H. Dissent oc- alleged defendants’
lishes Plain- operation. of the adenoid date curred been aware have should tiff Clarence should time or at that negligence of the purported than the no later at least of it aware have been treating Tracy began Bullard date that defendant Health Mercy v Sisters Sheldon charge. at no (1980). 91; NW2d 746 App Corp, not err did Therefore, court the lower with motions for defendants’ *10 plaintifff to the claims respect Jr.