Michigan Supreme Court orders argument on pair of plaintiff applications concerning malpractice law.
Last week, the Michigan Supreme Court signaled that it’s considering a tectonic shift in malpractice law. It granted the plaintiff leave to appeal in one malpractice case and ordered argument on the plaintiff’s application for leave to appeal in another. The issues involve the amount of time a plaintiff has to file a malpractice action and how plaintiffs must comply with the pre-suit notice requirements for medical-malpractice cases. While the second issue is unique to medical-malpractice cases, the first issue is not and could affect any type of malpractice claim.
Leave granted to revisit the standard for the six-month discovery rule
In Bowman v St John Hospital and Medical Center, Supreme Court Nos. 160291-2, the Court granted the plaintiff’s application. It stated that the parties should address whether Solowy v Oakwood Hosp Corp, 454 Mich 214 (1997) “adopted the correct standard for application of the six-month discovery rule” in MCL 600.5838a and, “if not, what standard the Court should adopt.” It’s a statute-of-limitations issue. Usually, the statute of limitation for malpractice claims is two years. The six-month discovery rule is an exception. It allows plaintiffs to file an action “within 6 months after [they] discover or should have discovered the existence of the claim ….”
In Bowman, the Court of Appeals held that the plaintiff should have discovered her claim that the defendant misdiagnosed a breast lump as benign when the lump was diagnosed as cancerous about two years later. The plaintiff argued that she shouldn’t have discovered her claim until a doctor told her that the defendant misread a mammogram about a year and four months after her cancer diagnosis.
Notably, the Supreme Court didn’t grant leave to consider a new or novel issue in Bowman. Instead, it appears to be putting its own precedent in the crosshairs. Solowy held that “the discovery rule period begins to run when, on the basis of objective facts, the plaintiff should have known of a possible cause of action.” Solowy, 454 Mich at 222. “Once a claimant is aware of an injury and its possible cause, the plaintiff is aware of a possible cause of action.” Id. (citation omitted). In Bowman, the Court will consider whether that decades-old, unanimous precedent is correct.
Solowy and Bowman are medical-malpractice cases, but Bowman implicates all other types of malpractice claims because they’re subject to an identical six-month discovery rule. See MCL 600.5838; Gebhardt v O’Rourke, 444 Mich 535 (1994) (unanimous opinion applying the same standard in a legal-malpractice case).
Argument on whether plaintiffs must send a notice of intent to sue to each defendant who they intend to sue
In Marquardt v Umashankar, Supreme Court No. 160772, the Court ordered argument on the plaintiff’s application. It directed the parties to address “whether the decedent failed to give Dr. Umashankar notice as required by MCL 600.2912b … on the ground that the notice was not addressed or directed to him.” The statute prohibits plaintiffs from filing a medical-malpractice action “against a health professional or health facility unless the person has given the health professional or health facility written notice under this section ….” The plaintiff must send the notice to “the last known professional business address or residential address of the health professional or health facility who is the subject of the claim.”
The plaintiff in Marquardt sent a notice of intent to sue to the risk manager at the University of Michigan Health System. The notice said that he intended to sue Dr. Umashankar, but he didn’t separately send the notice to Dr. Umashankar. The trial court held that the plaintiff didn’t send Dr. Umashankar the notice required by MCL 600.2912b and, as a result, the limitation period on his claim expired. The Court of Appeals affirmed. The Supreme Court will hear argument on whether sending the notice to U of M’s risk manager was sufficient.