Whitmore v. Fabi

399 N.W.2d 520, 155 Mich. App. 333
CourtMichigan Court of Appeals
DecidedSeptember 15, 1986
DocketDocket 82470
StatusPublished
Cited by13 cases

This text of 399 N.W.2d 520 (Whitmore v. Fabi) 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
Whitmore v. Fabi, 399 N.W.2d 520, 155 Mich. App. 333 (Mich. Ct. App. 1986).

Opinions

R. M. Maher, J.

Plaintiffs appeal as of right from a trial court order granting defendant’s motion for accelerated judgment pursuant to GCR 1963, 116.1(5).

This medical malpractice action arises out of surgery performed on Helen Whitmore by Robert Fabi, M.D., a neurosurgeon, and Ernesto L. Suarez, M.D., a cardiologist, on February 2, 1976. Each doctor performed a separate surgical procedure on Mrs. Whitmore, out of the presence of each other. During Dr. Suarez’s surgical procedure, Mrs. Whit-more’s brachial plexus was severed. Dr. Fabi returned to the operating room and attempted to repair the damage to the nerve, but was unsuccessful. Dr. Suarez last treated Mrs. Whitmore on July 21, 1976. Dr. Fabi last treated Mrs. Whitmore on July 8, 1977.

Plaintiffs commenced the instant action on May 2, 1979, against Dr. Fabi, Dr. Suarez, their respective professional corporations, and the hospital. In addition to allegations that both Dr. Fabi and Dr. Suarez were individually liable for their own negligent acts, plaintiffs alleged that there existed reciprocal principal-agent relationships between the doctors and that each doctor was vicariously liable [337]*337for the negligent acts of the other. On May 3, 1983, the trial court entered an order granting partial accelerated judgment in favor of defendants, stating that the following claims were barred by the statute of limitations:

1. Plaintiffs’ claim against Ernesto L. Suarez, M.D. and Kalamazoo Cardio Thoracic Surgery, P.C., his employer, based upon the alleged personal negligence of Ernesto L. Suarez, M.D.
2. Plaintiffs’ claims against Robert Fabi, M.D., Neurosurgery of Kalamazoo, P.C. and Borgess Hospital as the alleged principals of Ernesto L. Suarez, M.D. and Kalamazoo Cardio Thoracic Surgery, P.C. and based upon the alleged personal negligence of Ernesto L. Suarez, M.D.[1]

A trial court should grant a motion for accelerated judgment based on a statute of limitations where a jury has been requested only where the court can conclude as a matter of law that the plaintiffs claim is barred by the running of the period of limitations. When deciding a motion for accelerated judgment, the court must accept all well-pled allegations of the nonmoving party as true. In addition, the trial court may consider affidavits submitted by either party. Smith v Consengco, 146 Mich App 401, 405-406; 380 NW2d 478 (1985); Wallisch v Fosnaugh, 126 Mich App 418, 424; 336 NW2d 923 (1983), lv den 418 Mich 871 (1983).

The period of limitations for claims of medical malpractice is two years. MCL 600.5805(4); MSA 27A.5805(4). A claim based upon the medical malpractice of a doctor accrues:_

[338]*338[A]t the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim. [MCL 600.5838(1); MSA 27A.5838(1).]

An action for malpractice may be commenced within two years after the claim accrues or six months after the plaintiff discovers or should have discovered the existence of his or her malpractice claim, whichever is longer. MCL 600.5838(2); MSA 27A.5838(2). A malpractice action not commended within the statutory period is barred. Id.

Since plaintiffs failed to commence a malpractice action against Dr. Suarez within the statutory period, it would appear that the claim is barred. Plaintiffs argue, however, that the period of limitations is tolled due to the reciprocal agency relationship between the two doctors. Defendants argue that the legal relationship alleged by plaintiffs is not regarded as one of agency. It is well settled, however, that the existence and scope of an agency relationship are questions of fact for the jury. Michigan National Bank of Detroit v Kellam, 107 Mich App 669, 678; 309 NW2d 700 (1981), lv den 413 Mich 870 (1982); Caldwell v Cleveland-Cliffs Iron Co, 111 Mich App 721; 315 NW2d 186 (1981), lv den 417 Mich 914; 330 NW2d 854 (1983).

Physicians and surgeons, like other persons, are subject to the law of agency. Barnes v Mitchell, 341 Mich 7, 19; 67 NW2d 208 (1954). A physician or surgeon may be liable for the negligence or malpractice of another physician or surgeon acting as his agent. Barnes, supra, pp 18-19; see, also, Anno: Liability of one physician or surgeon for malpractice of another, 85 ALR2d 889. A physician who calls in or recommends another is not liable [339]*339for the other’s malpractice where there is no agency, concert of action or negligence selection. Rodgers v Canfield, 272 Mich 562, 564; 262 NW 409 (1935); Hitchcock v Burgett, 38 Mich 501 (1878). Likewise, physicians who are independently employed or acting independently in a case cannot be held vicariously liable. Brown v Bennett, 157 Mich 654, 658; 122 NW 305 (1909). Vicarious liability has been recognized, however, where the physicians are jointly employed or acting jointly on a case. See 85 ALR2d 889, 904 and the cases cited therein.

The facts of this case, with respect to the agency relationship of the doctors, have yet to be developed. As the case now stands, it cannot be said as a matter of law that an agency relationship did not exist between Dr. Suarez and Dr. Fabi. Furthermore, the issue on appeal in this case is not whether a reciprocal agency relationship existed, but whether the principal-agency relationship, if proven, tolled the period of limitations with respect to Dr. Suarez.

Plaintiffs allege alternative agency relationships. Plaintiffs first claim that (1) Dr. Suarez was the principal, (2) Dr. Fabi was the agent, (3) Dr. Suarez committed the alleged negligent act, and (4) Dr. Fabi was the last to treat. The issue under this factual background is: When did the period of limitations begin to run against Dr. Suarez, the principal, as a result of his own allegedly negligent act? Plaintiffs argue that the two-year period began to run against Dr. Suarez on the date that Dr. Fabi, the agent, last treated Mrs. Whitmore.

Plaintiffs’ alternative factual scenario is that (1) Dr. Fabi was the principal, (2) Dr. Suarez was the agent, (3) Dr. Suarez committed the alleged negligent act, and (4) Dr. Fabi was the last to treat. The question under this factual background is: When [340]*340did the period of limitations begin to run against Dr. Fabi, the principal, as a result of the alleged negligent act of Dr. Suarez, the agent. Plaintiffs argue that the two-year period began to run against Dr. Fabi on the date that Dr. Fabi last treated Mrs. Whitmore.

We agree with plaintiffs and hold that the period of limitations begins to run against a doctor on the last date of treatment by the doctor or his agent, whichever comes later. Our holding is the same whether plaintiffs seek individual or vicarious liability against the principal doctor. We believe that where an agency relationship exists, a doctor does not "discontinue treating or otherwise serving” within the meaning of § 5838 until both the doctor and his or her agent(s) have discontinued treating or otherwise serving a plaintiff.

Our holding is based in part upon the purpose of the "last treatment” rule, which is:

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Whitmore v. Fabi
399 N.W.2d 520 (Michigan Court of Appeals, 1986)

Cite This Page — Counsel Stack

Bluebook (online)
399 N.W.2d 520, 155 Mich. App. 333, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whitmore-v-fabi-michctapp-1986.