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Stenger v. Genesys Regional Medical Center9/27/2005
mammogram. Plaintiff left Dr. Austria's office that day with a mammogram scheduled on April 17, 2000, and was given a referral sheet to take to the test. Plaintiff's own expert witnesses testified in deposition that Dr. Austria did, in fact, order a mammogram and, therefore, did not breach the standard of care in that regard. Accordingly, plaintiff's claim has no merit and the trial court properly dismissed it.
III. Failure to Follow Up on Mammogram
Plaintiff also contends that the trial court improperly granted defendant's motion for summary disposition pursuant to MCR 2.116(C)(7) and MCR 2.116(C)(10) of her claim raised in her amended complaint that Dr. Austria was negligent in failing to follow up with plaintiff to ensure that she actually attended her scheduled mammogram. Plaintiff alleges that she would have rescheduled her September of 2000 mammogram if her physician had informed her of its importance. As previously noted, we review de novo a trial court's determination regarding a motion for summary disposition. We also review de novo a trial court's determination that a claim was not brought within the applicable statute of limitations.
Arguably, the trial court erred in dismissing plaintiff's claim as untimely. "An amendment that adds a claim . . . relates back to the date of the original pleading if the claim . . . asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth . . . in the original pleading." As long as the amended claim "arises from the same transactional setting" as the original claims, the amended complaint can include new facts, theories, and causes of action. Plaintiff's claims in both the original and amended complaint pertain to Dr. Austria's standard of care in ordering a mammogram to diagnose breast cancer. However, we need not determine if plaintiff was precluded from asserting claims omitted from her original affidavits of merit and notice of intent as the trial court properly dismissed plaintiff's claim pursuant to MCR 2.116(C)(10).
Plaintiff's expert witnesses testified that a doctor should either call a patient or schedule a follow up appointment to ensure that ordered tests have been performed. Plaintiff admitted that she requested a mammogram knowing that it was an important test. She admitted that she failed to return to the office for her follow-up appointment and Pap smear. She also admitted that she made no attempt to reschedule her mammogram after canceling her second appointment. In fact, plaintiff admits that she did not visit any doctor for two years after her appointment with Dr. Austria. Dr. Austria ordered a mammogram and may have been able to diagnose plaintiff's breast cancer had this test been conducted. While this is a tragic result, plaintiff was unable to create an issue of fact that her injuries were caused by any negligence on the part of Dr. Austria. Accordingly, we need not address the other claims of error alleged in her complaint.
Affirmed.
E. Thomas Fitzgerald, Jessica R. Cooper, Kirsten Frank Kelly.
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