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Estate of McNab v. Henry Ford Hospital3/6/2003
UNPUBLISHED
Plaintiff appeals as of right from the trial court's order granting defendant summary disposition based on the statute of limitations and denying plaintiff 's motion to amend her complaint. We affirm.
Plaintiff alleged in the complaint that defendant's doctor committed malpractice by failing to obtain plaintiff's decedent's medical history when he treated her for a sinus infection in August 1995 and by failing to inform the decedent that she should return for a complete physical examination approximately a year later, in August 1996. Because the doctor allegedly did not obtain a medical history from the decedent when treating her, he apparently was unaware that she had previously been treated for nasal cancer. According to plaintiff's complaint, the decedent was later diagnosed with cancer in other parts of her body that originated from a recurrence of the nasal cancer. The complaint alleged that if defendant's doctor had followed the standard of care, the " arlier diagnosis and treatment would have averted [the decedent's] death on May 5, 1998."
The trial court ruled that the two-year statute of limitations for medical malpractice claims barred plaintiff's lawsuit because she filed her complaint on September 26, 2000, more than two years after August 1995. Plaintiff contends that the statute of limitations did not bar her lawsuit because " he first act of malpractice in this case" occurred in August 1996, when defendant's doctor did not "send notice that [the decedent] needed to schedule a complete physical examination in the internal medicine clinic." Plaintiff contends that the period of limitation ran until August 1998 and that because the decedent died before the expiration of this period, plaintiff had two years after being appointed personal representative to file the complaint. See MCL 600.5852. Plaintiff contends that she therefore filed the complaint in a timely manner. We disagree.
This Court reviews de novo a trial court's decision to grant summary disposition. Spiek v Dep't of Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Defendant moved for summary disposition under MCR 2.116(C)(7).
In deciding a motion made under MCR 2.116(C)(7), a court should consider all affidavits, pleadings, and other documentary evidence submitted by the parties. Rheaume [v Vandenberg, 232 Mich App 417, 421; 591 NW2d 331 (1998)] . . . . If the pleadings or other documentary evidence reveal no genuine issues of material fact, the court must decide as a matter of law whether the claim is statutorily barred. Asher v Exxon Co, USA, 200 Mich App 635, 638; 504 NW2d 728 (1993). [Holmes v Michigan Capital Medical Center, 242 Mich App 703, 706; 620 NW2d 319 (2000).]
A cause of action involving medical malpractice accrues "'at the time of the act or omission that is the basis for the claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.'" Taylor v Kurapati, 236 Mich App 315, 358; 600 NW2d 670 (1999), quoting MCL 600.5838a(1).
Despite plaintiff's arguments to the contrary, the complaint simply does not allege a separate and actionable act of malpractice in August 1996 that served to extend the period of limitation. The actionable omission in failing to treat properly the decedent's condition occurred at the time of the original visit in August 1995, when the doctor allegedly failed to obtain a medical history from the decedent. Moreover, even assuming, arguendo, that the cause of action accrued in August 1996, dismissal would nonetheless have been appropriate because the affidavit of merit, required by statute to commence a medical malpractice lawsuit, see MCL 6
Page 1 2 Michigan Personal Injury Attorneys
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