Shane v. Mouw

323 N.W.2d 537, 116 Mich. App. 737

• Court: Michigan Court of Appeals
• Decided: June 8, 1982
• Docket: Docket 52651
• Status: Published

Opinions

J. R. Ernst, J.

The essential facts of this case are accurately set forth in Judge Mackenzie’s dissenting opinion.

Accepting plaintiffs version of the facts as correct for purposes of this appeal, it appears the parties commenced a physician-patient relationship in 1961 which continued into 1977. GCR 1963, 116.3. Between 1965 and May, 1977, plaintiff visited defendant’s office 63 times, and defendant regularly prescribed medication for plaintiffs condition.

Plaintiff further claims that she last visited defendant’s office in July, 1977. At that time, she asserts, it was necessary for her to use a walker because her "arthritis” had crippled her.

After hospitalizing plaintiff on August 7, 1977, another physician diagnosed plaintiff’s condition as gout.

In DeGrazia v Johnson, 105 Mich App 356; 306 (1981), it was held that under some circumstances a telephone conversation between a physician and patient which takes place after the last examination of the patient may constitute "treating or otherwise serving the plaintiff’ pursuant to MCL 600.5838(1); MSA 27A.5838(1).

We agree with the applicability of the rule as stated by the dissent to the present case, but differ in the conclusion to be drawn from the given facts.

Plaintiff and defendant enjoyed a patient-physician relationship for 16 years. Over this period, defendant diagnosed and treated plaintiff for an arthritic condition.

Plaintiff continued to seek treatment from defendant for this medical problem through her son’s telephone call on her behalf on August 7, 1977, when her condition had further deteriorated. Defendant refused to hospitalize plaintiff as requested and instead offered to prescribe medication. It was only after this telephone conversation that plaintiff sought the services of another physician.

There is nothing to indicate that the telephone call of August 7, 1977, was intended as a device for prolonging the statute of limitations. On the contrary, it bears all the indicia of a call on behalf of a patient in distress to her long-time personal physician. Similarly, it may be reasonably inferred from defendant’s alleged response that an evaluation of plaintiffs condition was made based on past observation and treatment plus information as to the current condition and that defendant then determined a course of treatment including prescribing medication and rejecting hospitalization.

As observed in the dissenting opinion, the physician-patient relationship is consensual; it may be established by a request for treatment and treatment being furnished in response to such request. Moreover, the relationship may be of a continuing nature, as it was between the present parties.

There is no evidence of any occurrence between the parties prior to August 7, 1977, which would indicate that defendant intended to discontinue treating or otherwise serving plaintiff before that date. More significantly, prior to August 7, 1977, there is evidence of nothing which would have alerted plaintiff that her long-standing physician-patient relationship with defendant had ended and that the statutory period of limitations had started to run. In fact, the phone.call of August 7, 1977, certainly appears to have been an attempt by defendant to continue treating plaintiff’s condition.

Reversed and remanded for trial. Costs to plaintiff.

D. F. Walsh, P.J., concurred.