Stephen J. Markman, Chief Justice, Brian K. Zahra Bridget M.
McCormack David F. Viviano Richard H. Bernstein Kurtis T.
Wilder Elizabeth T. Clement, Justices.
December 6, 2017, the Court heard oral argument on the
application for leave to appeal the August 4, 2016 judgment
of the Court of Appeals. On order of the Court, the
application is again considered, and it is DENIED, because we
are not persuaded that the questions presented should be
reviewed by this Court.
Markman, C.J. (dissenting).
respectfully dissent from this Court's order denying
leave to appeal. Largely for the reasons stated in the Court
of Appeals dissent, I would reverse the Court of Appeals
judgment and reinstate the trial court's order granting
summary disposition in favor of defendants. As the dissent
concluded, the limitations period here began to run on
January 3, 2011, when plaintiff was diagnosed with kidney
failure, and he thereafter failed to timely commence an
alleges that defendant Shyam Mishra, M.D., failed to properly
manage and treat his kidney disease. According to plaintiff,
defendant regularly monitored his kidney function, yet
despite progressively worsening kidney functions, defendant
never referred him to a nephrologist or otherwise treated his
condition. The statutory period of limitations for a claim
based on medical malpractice is generally two years, MCL
600.5805(6), and it is undisputed that plaintiff failed to
commence his action within this period. However, plaintiff
asserts that his action was nevertheless timely under the
"discovery rule" set forth in MCL 600.5838a(2),
which provides in part as follows: "[A]n action
involving a claim based on medical malpractice may be
commenced at any time within the applicable period prescribed
in section 5805 . . . or within 6 months after the plaintiff
discovers or should have discovered the existence of the
claim, whichever is later." In Solowy v Oakwood Hosp
Corp, 454 Mich. 214, 232 (1997), we explained 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,
" which "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."
plaintiff's deposition testimony indicated that defendant
had been monitoring his "kidney numbers" for years.
During this monitoring, plaintiff's numbers were slightly
elevated, and defendant ordered an ultrasound of his kidneys
in 2009. However, plaintiff testified that he was apprised
afterwards by defendant that his kidneys were
"fine." Plaintiff continued to be tested twice a
year and, according to plaintiff, defendant never indicated
that he suffered from kidney disease or that his kidneys were
otherwise failing. Plaintiff testified further that defendant
"kept on mentioning" his kidney number and stated,
"don't worry about it, it was fine, it was within
safe limits, is what he always told me." On January 3,
2011, plaintiff went to the hospital with flu-like symptoms,
at which point, according to plaintiff, emergency room
personnel told him that his "kidneys failed" and
that his numbers were "way out of whack."
these facts together, as of January 3, 2011, plaintiff was
aware that defendant had been monitoring his numbers for
years, that his numbers were "way out of whack"
upon admission to the hospital, and that his kidneys had
apparently failed, despite the fact that defendant had
regularly assured him that his kidneys were "fine."
These facts should have aroused at least some modicum of
suspicion in a reasonable person that defendant had provided
deficient care, and they also suggest that plaintiff should
have been aware of a kidney problem and a possible causal
linkage between that problem and some negligent act or
omission on defendant's part. See id. at 222
(stating that a "plaintiff need not know for certain
that he had a claim, or even know of a likely claim before
the six-month period would begin"). Thus, as the Court
of Appeals dissent concluded, plaintiff should reasonably
have discovered the existence of his claim on January 3,
2011, and his action was barred by the limitations period in
MCL 600.5838a(2) because he failed to commence the action
within six months after this date. I am aware that the
immediate reaction of any person to what plaintiff learned on
that date would not have been to assess what was required to
preserve a medical malpractice action but rather to seek out
treatment, but legal claims are not of indefinite duration;
in this instance they must be brought within two years of the
malpractice or within six months of when a person discovers
or should have discovered the existence of the claim,
whichever date is later.
even if one were to disregard the January 2011 date,
plaintiff should at least have discovered the existence of
his claim by October 2011, at which time plaintiff's
nephrologist recommended that he obtain a kidney transplant.
By this time, not only had plaintiff been diagnosed
with kidney failure, but he had also been counseled as to how
to address this condition. That his kidneys failed
and that a transplant was recommended, combined with his
knowledge that defendant had been monitoring his kidneys for
years yet never once indicated they were failing, supplied
plaintiff with more than sufficient information concerning
the basis for a legal claim.
plaintiff should have discovered his claim by January 3,
2011, or, at the very latest, by October 2011. However,
plaintiff failed to commence his action within six months of
either of these dates. Therefore, the action was time-barred
under MCL 600.5838a(2), and the trial ...