Simpson v. Hubert

193 N.W.2d 68, 35 Mich. App. 523, 70 A.L.R. 3d 108, 1971 Mich. App. LEXIS 1513

• Court: Michigan Court of Appeals
• Decided: August 24, 1971
• Docket: Docket 10075
• Status: Published

Opinion

Levin, J.

The complaint of plaintiff, James Simpson, alleges that on March 29,1967, the defendant, Raymond Hubert, contracted to make a set of dentures and to perform other dental services for the plaintiff. It is further alleged that the defendant was not a licensed dentist, that he falsely represented that he was licensed, and that the services were performed inadequately causing injury and expense to the plaintiff. The complaint states a count sounding in tort for misrepresentation and negligence and a count sounding in contract for breach of contract and warranty.

Plaintiff’s action was commenced on March 16, 1970, within the three-year limitation period generally applicable to actions to recover damages for injuries to persons and property. See RJA § 5805 (7). 1 The defendant moved to dismiss on the ground that the action was for malpractice and it was not commenced within the two-year limitation period for “actions charging malpractice”. See RJA § 5805 (3). 2 The trial judge granted the motion and the plaintiff appeals.

In Kambas v. St. Joseph’s Mercy Hospital (1971), 33 Mich App 127, leave to appeal granted 385 Mich 786, we recently had occasion to consider this statutory provision (RJA § 5805 [3] ) 3 providing a shorter limitation period for actions charging malpractice than for personal injury and property damage actions generally. A divided Court held that an action against a hospital for the negligence of a nurse was an action for malpractice because “malpractice” means an action for the professional misconduct of a person who is “a member of a state-licensed profession”. I dissented saying that the term “malpractice”, as used in RJA § 5805(3), refers only to actions against physicians, surgeons, or dentists.

The issue which divided the panel of our Court that decided the Kambas case need not he reconsidered in order to decide this case. We are persuaded that, for the purposes of RJA § 5805(3), whether an “action charging malpractice” means an action against any member of a state-licensed profession or is limited to actions against physicians, surgeons, or dentists, the Legislature did not intend that the short two-year statute of limitation applicable to actions against licensed professionals would limit the time for bringing an action against an unlicensed practitioner who poses as a licensed professional.

The defendant points out that under the provisions of RJA § 2912, 4 a person claiming to have been injured by the failure of an impostor to conform to the standard of care of the profession of which he professes to be a member may maintain an action for malpractice against the impostor and hold him to the standard of care of a member of the profession. In establishing in BJA § 2912 a rule which may have obtained at common law, 5 the Legislature did not thereby address itself to the separate question whether an unlicensed practitioner, an impostor, could avail himself of the short two-year statute of limitation.

EJA § 2912 concerns the standard of care to which an impostor may be held. It does not, although the term “malpractice” is used, purport to extend to impostors the benefit of the short statute of limitations set forth in EJA § 5805(3). As the committee note states, § 2912 “does not create a new cause of action. Members of state licensed professions are liable for malpractice at common law, as are unli censed persons. What this section does is to hold the unlicensed person to the standard of care to which a member of the state licensed profession would be held * * 6 (Emphasis supplied.)

The question of the standard of care to which an impostor should be held and the question of the appropriate statute of limitations in an action against an impostor are separate questions. Different legislative policies are involved. We decline to infer from the codification of a rule concerning the standard of care a legislative purpose to shorten the statute of limitations in actions against impostors from what it was before the Revised Judicature Act was enacted. 7 Relevant is the committee note that “existing time periods have been used”. 8

“In the codification of statutes the general presumption obtains that the codifiers did not intend to change the law; and mere changes of phraseology or punctuation, or the addition or omission of words, or the rearrangement of sections or parts of a statute, or the placing of portions of what formerly was a single section in separate sections, does not operate to change the operation, effect or meaning of the statute unless the changes are of such nature as to manifest clearly and unmistakably a legislative intent to change the former law.” State, ex rel. Johnson, v. Broderick (1947), 75 ND 340, 343 (27 NW2d 849, 852). 9

Construing the two sections (BJA § 2912 and BJA § 5805 [3]) together, we hold that the short two-year statute of limitation applies only to action against licensed professionals. 10 The standard of care, whether the action is against an impostor or a true member of the profession, is the same; both are required to conform to the standard of care of a member of the profession.

Our decision makes it unnecessary to decide whether a person who claims he was injured by an impostor may waive the professional standard of care and sue the impostor for negligence or on some other theory and, if so, what would be the standard of care in such a case. It is also unnecessary to consider whether an action for deceit, separate and apart from a malpractice action, may be maintained against a professional person or an impostor 11 and, if so, whether a different statute of limitations might govern. 12

Reversed and remanded for trial. Costs to plaintiff.

All concurred.

1 MCLA § 600.5805(7) (Stat Ann 1962 Rev § 27A.5805[7]).

2 MCIA § 600.5805(3) (Stat Ann 1962 Rev § 27A.5805[3]).

3 “No person may bring or maintain any action to recover damages for injuries to persons or property unless, after the claim first accrued to himself or to someone through whom he claims, he commences the action within the periods of time prescribed by this section. * * *

“(3) The period of limitations is 2 years for actions charging malpractice.” MCLA § 600.5805(3) (Stat Ann 1962 Rev § 27 A-.5805 [3]).

4 “ (1) A civil action for malpractice may be maintained against any person professing or holding himself out to be a member of a state licensed profession. The rules of the common law applicable to actions against members of a state licensed profession, for mal praetiee, are applicable against any person who holds himself out to be a member of a state licensed profession.

“(2) Malpractice may be given in evidence in defense to any action for services rendered by the member of a state licensed profession, or person holding himself out to be a member of a state licensed profession.” MCLA § 600.2912 (Stat Ann 1962 Rev § 27A.2912).

5 See Hawkins, Practice Commentary, MCLA § 600.2912, pp 657, 658, where the following appears:

“Legislative history of the predecessors of RJA § 2912 is carefully analyzed in Leslie v. Mollica (1926), 236 Mich 610 (211 NW 267). As observed in that opinion, ‘Whether this declared more than the common-law rule is questionable.’ 236 Mich at 614. That is, notwithstanding the contrary suggestion in the Committee Comment, it is probably the common-law rule, without regard to the statute) that an unlicensed practitioner who holds himself out as belonging to a particular profession or specialty will be judged by the standards he professes, rather than the lower standards of a layman.”

The committee note states that “unlicensed persons are held at present” to the standard of care of a layman.

Whether the committee or Professor Hawkins is right about the state of preexisting law, the only question under consideration when § 2912 was drafted was the standard of care. As the committee note itself states, “what this section does” is to hold impostors to the professional standard of care. That is the purpose of § 2912, and no more.

6 See committee note reprinted as annotation to MCLA § 600.2912 (Stat Ann 1962 Rev §27A.2912). See discussion of the committee note in fn 5.

7 Under prior law, the two-year statute applied only to an action for malpractice brought against “physicians, surgeons or dentists”. See CL 1948, § 609.13 (Stat Ann § 27.605).

8 See committee note reprinted as annotation to MCLA § 600.5805 (Stat Ann 1962 Rev § 27A.5805).

9 Similarly, see United States v. Thompson (CA2, 1963), 319 R2d 665, 669; City of Redfield v. Wharton (1962), 79 SD 557, 564 (115 NW2d 329, 332); Wilson v. Miller (1957), 144 Conn 212 (128 A2d 894); Austro-Hungarian Consul v. Westphal (1912), 120 Minn 122 (139 NW 300).

10 We express no opinion as to the issue decided in Kambas v. St. Joseph’s Mercy Hospital (1971), 33 Mich App 127.

11 Here, it is alleged that the whole relationship was founded on deceit and tainted by it. But for the defendant’s deceit, the plaintiff might never have subjected himself to treatment by the defendant. It would be anomalous to say that in such a ease the injured person is limited to the form of action which evolved in eases where the defendants were true members of the profession.

12 Our Supreme Court has indicated that an action for malpractice may not be the exclusive remedy. See Johnson v. Caldwell (1963), 371 Mich 368, 380, et seq.

In other jurisdictions, courts have held, in eases where a statute of limitations defense was raised, that malpractice is not the exclusive theory. In McAlpin v. Browne (1958), 15 Misc 2d 255, 257 (181 NYS2d 525, 527), the Court ruled that where “the deceit [of the professional person] is not with respect to the manner of performance of the contract or of any incident thereof, but rather with respect to the stated fact” an action for breach of contract or misrepresentation may be maintained; in so holding the court said that if the breach alleged was for negligent performance, then despite the nomenclature of plaintiff’s theory it would constitute an action for malpractice. Similarly, see Volk v. McCormick (1969), 41 Wis 2d 654 (165 NW2d 185) (physician alleged to have falsely told patient she was not injured by operation he performed for pur pose of inducing her to refrain from seeking medical or legal assistance); Krestich v. Stefanez (1943), 243 Wis 1 (9 NW2d 130) (surgeon knowingly and faisely represented to patient that needles left in her abdomen during surgery had been found and removed). Contra, Stacey v. Pantano (1964), 177 Neb 694 (131 NW2d 163) (alleged misrepresentation by physician as to nature and eause of postoperative condition). See, also, Calabrese v. Bickley (1956), 1 App Div 2d 874 (150 NYS2d 542) modifying 208 Misc 407 (143 NYS2d 846).