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Mitchell v. Policherla11/15/2005
UNPUBLISHED
Before: Murphy, P.J., and Sawyer and Meter, JJ.
Plaintiff appeals from an order of the circuit court granting defendants' motion for summary disposition. We affirm. This appeal is being decided without oral argument pursuant to MCR 7.214(E).
In a prior appeal, Mitchell v Policherla, unpublished opinion per curiam of the Court of Appeals, issued 5/22/03 (Docket Nos. 237578 & 238217), this Court held that any of plaintiff's claims which accrued before October 11, 1998, were time barred. Id., slip op at 5. On remand, the trial court determined that plaintiff could not establish any act of malpractice accruing after October 11, 1998, and, accordingly, once again granted summary disposition. Plaintiff now challenges that decision.
We review the trial court's ruling on a motion for summary disposition de novo. Kefgen v Davidson, 241 Mich App 611, 616; 617 NW2d 351 (2000). Whether a cause of action is barred by the statute of limitations is a question of law that we review de novo. Ins Comm'r v Aageson Thibo Agency, 226 Mich App 336, 340-341; 573 NW2d 637 (1997).
Plaintiff testified that she underwent a mammogram in March 1998. The mammogram showed an area of dense fibroglandular tissue and the radiologist recommended further evaluation by way of a spot compression test. At this point, the facts come somewhat in dispute. Defendants maintain that plaintiff was informed of this at an April 1998 appointment, but that she declined a follow-up mammogram. Plaintiff testified that she did not learn the results of the mammogram until a visit to Dr. Divi sometime in December 1998. Plaintiff further claims that Dr. Divi told her at that visit that the mammogram showed a spot on her left breast, but that the condition was nothing to worry about, and that she (Divi) would monitor it. Plaintiff's recollection of the events are not consistent with the medical records maintained by defendants, which show that the results of the mammogram were reviewed during a visit on April 20, 1998. The records further show that plaintiff was seen again in mid-September and then not until March 1999.
It is not in dispute that plaintiff's next mammogram was not conducted until April 1999. It is also agreed that that mammogram revealed that a mass "highly suggestive of malignancy" had developed. Plaintiff asserts that defendants were negligent for failing to diagnose and treat the spot before April 1999.
Given the procedural posture of the case, we accept plaintiff's version of the events as true. But even under plaintiff's version of the facts, we believe that the trial court correctly granted summary disposition. In determining when a medical malpractice claim accrues, Michigan does not recognize the concept of a "continuing wrong" or continuing-treatment rule. McKiney v Clayman, 237 Mich App 198, 208; 602 NW2d 612 (1999). In McKiney, the defendant misdiagnosed a growth on the plaintiff's tongue as being non-malignant during a December 3, 1993, visit. The parties had various consultations regarding the issue over the next few months, with the defendant pursuing a course of treatment for the plaintiff on the basis that they were dealing with a precancerous growth. In March 1994, a biopsy was performed and the plaintiff learned that the growth was, in fact, malignant. The plaintiff filed a medical malpractice action against the defendant on December 21, 1995, more than two years after the defendant's misdiagnosis of the growth, but less than two years after the last consultation between the plaintiff and the defendant regarding the growth. The plaintiff argued that the accrual date for the medical malpractice claim should be the date of the last
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