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Haskell v. Colfer9/20/2005
UNPUBLISHED
Before: Sawyer, P.J., and Talbot and Borrello, JJ.
Plaintiff appeals as of right the trial court's order granting summary disposition in favor of defendants under MCR 2.116(C)(7). We reverse and remand for further proceedings.
Plaintiff commenced this medical malpractice action on January 14, 2005, alleging that defendant Harry Colfer, M.D., breached the required standard of care in treating her father, Donald Loepp, for a cardiac condition by prescribing an excessive of amount of Digoxin. Plaintiff further alleges that this error substantially caused Loepp's July 28, 1998, cardiac arrest and his death on August 2, 1998. Defendants moved for summary disposition, asserting that plaintiff's claims were time-barred under Waltz v Wyse, 469 Mich 642, 650; 677 NW2d 813 (2004), because the action was not brought within five years of the alleged malpractice pursuant to the wrongful death savings provision, and because the action was not commenced within six years of the alleged malpractice pursuant to the period of repose contained in MCL 600.5838a(2). The trial court granted defendants' motion for summary disposition on the basis that plaintiff "should have discovered" her claim earlier pursuant to the discovery provision of MCL 600.5838a(2). We disagree.
This Court reviews de novo a trial court's decision to grant a motion for summary disposition. Ousley v McLaren, 264 Mich App 486, 490; 691 NW2d 817 (2004). "With regard to a motion for summary disposition pursuant to MCR 2.116(C)(7), this Court reviews the affidavits, pleadings, and other documentary evidence presented by the parties and 'accept the plaintiff's well-pleaded allegations, except those contradicted by documentary evidence, as true.'" Young v Sellers,254 Mich App 447, 450; 657 NW2d 555 (2002), quoting Novak v Nationwide Mut Ins Co, 235 Mich App 675, 681; 599 NW2d 546 (1999) (alteration by Young). This issue also presents a question of statutory interpretation that is reviewed de novo on appeal. Eggleston v. Bio-Medical Applications of Detroit, Inc, 468 Mich 29, 32; 658 NW2d 139 (2003).
Plaintiff's claim accrued on July 22, 1998, when Colfer prescribed the allegedly excessive amount of Digoxin to Loepp. MCL 600.5838a(1); Solowy v Oakwood Hosp Corp, 454 Mich 214, 220; 561 NW2d 843 (1997). Because plaintiff did not file her complaint until January 14, 2005, her complaint would be barred under the general two-year statute of limitations for malpractice actions. MCL 600.5805(6). Plaintiff, however, asserts that she did not discover the existence of her claim until June 21, 2004, when she and her sister reviewed their father's medical records for the first time and learned that he had been suffering from Digoxin toxicity at the time of his cardiac arrest. See MCL 600.5838a(2). Thus, plaintiff argues she had six months from June 21, 2004, to commence this action.
In Solowy,our Supreme Court held that the six-month discovery rule period begins to run in medical malpractice cases when the plaintiff, on the basis of objective facts, is aware of a possible cause of action. This occurs when the plaintiff is aware of an injury and a possible causal link between the injury and an act or omission of the physician. [Solowy, supra at 232.]
Here, while plaintiff knew of the injury to her father when he suffered a cardiac arrest, plaintiff had no reason to suspect that an act or omission by Colfer was related to that cardiac arrest, considering Loepp's history of cardiac problems. Both plaintiff and her sister aver that they were not told that Loepp had been prescribed Digoxin or that laboratory results showed that his Digoxin levels were elevated. Without this informatio
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