McKiney v. Clayman

602 N.W.2d 612, 237 Mich. App. 198
CourtMichigan Court of Appeals
DecidedDecember 1, 1999
DocketDocket 201336
StatusPublished
Cited by18 cases

This text of 602 N.W.2d 612 (McKiney v. Clayman) is published on Counsel Stack Legal Research, covering Michigan Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McKiney v. Clayman, 602 N.W.2d 612, 237 Mich. App. 198 (Mich. Ct. App. 1999).

Opinion

Gage, P.J.

Plaintiff appeals as of right the trial court’s order granting defendants summary disposition with respect to plaintiff’s medical malpractice claim. The trial court granted defendants summary disposition pursuant to MCR 2.116(C)(7) on the basis that plaintiff filed her claim beyond the time allowed by the applicable statute of limitations. We affirm.

Defendant Lewis Clayman, a dentist and medical doctor, was engaged in the practice of oral and maxillofacial surgery at defendant Sinai Hospital. In 1989, defendant Clayman (hereinafter defendant) began treating plaintiff, who had sores or lesions on her tongue. In June of 1989, defendant resectioned plaintiff’s tongue, partially removing a cancerous growth. Spots recurred on plaintiff’s tongue, however, several times over the next few years. Defendant opined that the spots represented recurring dysplasia, not cancer, and opted to perform laser treatments to remove the spots. Although plaintiff underwent laser surgeries in 1990, 1992, and 1993, these procedures did not successfully prevent the spots from reappearing.

On various occasions during this 1989-93 period, defendant apparently referred plaintiff to dentists and oral surgeons. Eventually, on December 2, 1993, plaintiff received a tentative diagnosis from doctors on Henry Ford Hospital’s Head and Neck Tumor Board *200 that the spot on her tongue might represent spreading cancer. On December 3, 1993, plaintiff visited defendant’s office for the last time. At this visit, plaintiff informed defendant of the. tentative cancer diagnosis she had received, and also discussed with defendant photodynamic therapy, an experimental treatment of which the Henry Ford Hospital doctors had made her aware. Defendant remained of the opinion that plaintiff did not have cancer, but only a precancerous growth. While plaintiff did not visit defendant’s office again, she and defendant had several telephone conversations from January until March 1994, during which they discussed the merits of photodynamic therapy and the existence of other alternative treatments.

After a biopsy in early March 1994, plaintiff learned that she did indeed have cancer. Plaintiff then consented to photodynamic therapy at Henry Ford Hospital, which therapy began in April 1994. Because the photodynamic therapy did not completely rid plaintiff’s mouth of cancerous cells, plaintiff subsequently underwent radiation therapy at a University of Michigan hospital. Since plaintiff and defendant’s early 1994 telephone conversations, plaintiff apparently has not spoken again with defendant.

On December 21, 1995, plaintiff filed the instant malpractice action. The trial court granted defendant summary disposition pursuant to MCR 2.116(C)(7) on the basis that plaintiff had-filed her complaint beyond the two-year period of limitation applicable to. medical malpractice actions.

Plaintiff now challenges the trial court’s grant of summary disposition. We review de novo a trial court’s grant of summary disposition under; , MCR *201 2.116(C)(7). Novak v Nationwide Mut Ins Co, 235 Mich App 675, 681; 599 NW2d 546 (1999). We consider all documentary evidence submitted by the parties and accept as true the plaintiffs well-pleaded allegations, except those contradicted by documentary evidence. We view the uncontradicted allegations in the plaintiffs favor and ascertain whether the claim is time-barred as a matter of law. Id. Whether a cause of action is barred by the statute of limitations is a question of law that we also review de novo. Ins Comm’r v Aageson Thibo Agency, 226 Mich App 336, 340-341; 573 NW2d 637 (1997).

Plaintiff contends that because she continued receiving treatment from defendant by telephone through March 3, 1994, this date constitutes the accrual date of her malpractice claim, and that the trial court therefore erred in relying on the date of plaintiffs last visit to defendant’s office as the appropriate accrual date. To determine the validity of plaintiff’s argument, we must examine the statute of limitations in effect when plaintiff’s cause of action arose. Chase v Sabin, 445 Mich 190, 192, n 2; 516 NW2d 60 (1994). Generally, a plaintiff must commence his medical malpractice action within two years of the claim’s accrual. MCL 600.5805(1), (4); MSA 27A.5805(1), (4). 1 The statutory definition of “accrue” in effect at the time plaintiff’s claim arose explained that

*202 a claim based on the medical malpractice of a person who is, or who holds himself or herself out to be, a licensed health care professional . . . accrues at the time of the act or omission which is the basis for the’claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim. [MCL 600.5838a(l); MSA 27A.5838(1)(1).]

Because the accrual date depends on the basis of plaintiff’s malpractice allegations, we must examine plaintiff’s complaint.

The essence of the malpractice allegations in plaintiff’s complaint is that defendant failed to properly evaluate her condition by not diagnosing her cancer, and failed to properly treat her by neglecting to conduct appropriate examinations and neglecting to refer her to other, more appropriate and competent healthcare providers. Plaintiff offers no specific date on which defendant’s failures allegedly occurred, but instead maintains that these failures represented ongoing deficiencies that continued until the termination date of the parties’ physician-patient relationship, March 3, 1994. As support for her argument that her claim did not accrue until March 3, 1994, plaintiff cites several Michigan cases indicating that doctor-patient telephone calls can extend the professional relationship. Plaintiff’s reliance on these cases, however, is misplaced. The cited casés interpret an obsolete statutory definition of accrual for purposes of medical malpractice actions arising after 1986. Morgan v Taylor, 434 Mich 180, 192, n 17; 451 NW2d 852 (1990). Before 1986, MCL' 600.5838(1); MSA 27A.5838(1) provided that malpractice claims accrued “at the time th[e state licensed professional] discontinues treating or otherwise serving the plaintiff in a *203 professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose.” Stapleton v City of Wyandotte, 177 Mich App 339, 343; 441 NW2d 90 (1989). Because plaintiffs claim definitely accrued after 1986 when the Legislature abrogated the “last treatment rule” with respect to medical malpractice claims, a determination of the termination date of the parties’ physician-patient relationship is irrelevant to a proper disposition of the instant case. 2

Plaintiff’s position that her claim did not accrue until the end of the parties’ professional relationship ignores the statutory language defining accrual as “the time of the act or omission which is the basis for the claim.” MCL 600.583.8a(l); , MSA 27A.5838(1)(1) (emphasis added). 3

Free access — add to your briefcase to read the full text and ask questions with AI

Related

20250115_C365154_66_365154.Opn.Pdf
Michigan Court of Appeals, 2025
Delaney Lonsway v. Yale University
Michigan Court of Appeals, 2021
Cloverdale Holdings LLC v. Patricia Whitlow
Michigan Court of Appeals, 2018
Richard a Krueger v. Spectrum Health Systems
Michigan Court of Appeals, 2016
Penny Gamble v. David M Kolakowski Dds
Michigan Court of Appeals, 2016
Kathleen Ann Hoard v. Mark J Stevenson Dds
Michigan Court of Appeals, 2015
Kincaid v. Cardwell
834 N.W.2d 122 (Michigan Court of Appeals, 2013)
Jimenez v. Allstate Indemnity Co.
765 F. Supp. 2d 986 (E.D. Michigan, 2011)
City of Ferndale v. Florence Cement Co.
712 N.W.2d 522 (Michigan Court of Appeals, 2006)
Farley v. Advanced Cardiovascular Health Specialists, PC
703 N.W.2d 115 (Michigan Court of Appeals, 2005)
Stevenson v. City of Detroit
689 N.W.2d 239 (Michigan Court of Appeals, 2004)
Blazer Foods, Inc v. Restaurant Properties, Inc
673 N.W.2d 805 (Michigan Court of Appeals, 2004)
Mouradian v. Goldberg
664 N.W.2d 805 (Michigan Court of Appeals, 2003)
Eggleston v. Bio-Medical Applications of Detroit, Inc
645 N.W.2d 279 (Michigan Court of Appeals, 2002)
Taggart v. Tiska
619 N.W.2d 731 (Michigan Court of Appeals, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
602 N.W.2d 612, 237 Mich. App. 198, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mckiney-v-clayman-michctapp-1999.