On May 22, 2020 the Michigan Supreme Court granted the plaintiffs' application for leave in Bowman v St. John and Medical Cntr. In Bowman, the Court of Appeals reversed the trial court's denial of the defendants' motion for summary disposition based on expiration of the statute of limitations under the six month discovery rule. Bowman is a medical malpractice action involving an alleged delay in the diagnosis of breast cancer. The Bowman panel concluded that the six month discovery period accrued when the plaintiff received a confirmed cancer diagnosis in April of 2015 rather than at the time of a later conversation with a physician in August of 2016 that suggested her 2013 mammogram had been misread. The Michigan Supreme Court's order in Bowman suggests that it intends to explore its adoption of a "possible cause of action standard" in Solowy v Oakwood, 454 Mich 214 (1997) and invites briefing on whether the Court adopted the correct standard in Solowy and if not, what standard the Court should adopt.
The Facts and Procedural History of Bowman:
The plaintiff had a mammogram and ultrasound on 6-12-13. The defendant radiologist interpreted the mammogram and ultrasound as revealing benign cysts. The plaintiff underwent another mammogram and ultrasound on 4-21-15 which revealed that the mass had grown in size. A biopsy was performed on 4-29-15. Pathologic analysis of the biopsy specimen revealed cancer. The plaintiff underwent a double mastectomy on 5-18-15. A bone marrow biopsy performed on 7-28-16 revealed that the cancer had spread to the bone marrow.
The plaintiff served her notice of intent on 12-10-16 and filed suit on 6-12-17. The defendants filed a motion for summary disposition contending that the plaintiff discovered a possible cause of action no later than April of 2015 when her cancer was diagnosed. The plaintiff claimed that she did not become aware of a possible cause of action until August of 2016 when a doctor in Illinois told her that the 2013 mammogram had been misread and should have been interpreted as suspicious for cancer. The plaintiff relied on the majority opinion in Jendrusina v Mishra, 316 Mich App 621 (2016) where judges Gleicher and Shapiro held that the six month discovery period didn't accrue until the plaintiff was told by a nephrologist that the defendant internist should have referred him earlier and that he could have prevented the plaintiff from becoming dependent on dialysis. The Jendrusina majority reached this holding despite the fact that the plaintiff had been advised well over six months prior to serving his notice of intent that he had kidney failure after years of being advised by his internist that his kidney lab levels were not a cause for concern.
The Bowman Trial Court and Court of Appeals Opinions:
The trial court in Bowman denied the defendants' motion ostensibly relying on Jendrusina to conclude that defendants had not established that the plaintiff "should" have discovered a possible cause of action at the time of her cancer diagnosis in 2015 because there was "no evidence before the Court that any of [plaintiff's] treating physicians told her that the 2013 mammogram was suspicious for cancer until August of 2016." The Court of Appeals subsequently granted leave and reversed the trial court's order in a 2-1 unpublished opinion. The Bowman majority found the facts of Solowy analogous and the facts of Jendrusina distinguishable. The majority noted that the plaintiff was aware by April 29, 2015 that she had a breast lump starting in 2013, that it was in the same location in 2015, that it had grown larger in 2015 and that it was cancerous. The plaintiff was fully aware of her breast cancer diagnosis and the fact that it had metastasized well over six months prior to serving her notice of intent. The Bowman majority further found the recently published court of appeals opinion in Hutchinson to support its holding. In Hutchinson, the court of appeals held that the plaintiff should not have discovered a possible cause of action for alleged delay in diagnosis of breast cancer until the date of her actual breast cancer diagnosis. Hutchinson v Ingham Cnty Health Dept, 328 Mich App 108, 141; 935 NW2d 612 (2019) lv denied 937 NW2d 687 (2020). Based on the foregoing, the Bowman majority concluded that the six month discovery period accrued at the time the plaintiff received her cancer diagnosis on 4-29-15. Therefore, her notice of intent was served more than six months after the accrual of the period of limitation and the trial court erred in denying the defendants' motion for summary disposition. Judge Ronayne Krause authored a lengthy dissent contending that the majority misapplied the holdings of Jendrusina and Hutchinson.
Analysis of the Michigan Supreme Court's Order Granting Leave:
The Michigan Supreme Court's order granting the plaintiffs' application for leave in Bowman is a full grant of leave rather than a more limited grant of argument on the application. The order directs the parties to address the following in their briefing:
- whether the Court's decision in Solowy v Oakwood Hosp Corp, 454 Mich 214 (1997), adopted the correct standard for application of the six month discovery rule set forth in MCL 600.5838a(2);
- if not, what standard the Court should adopt; and
- whether the plaintiff timely served her notice of intent and filed her complaint under MCL 600.5838a(2). The order invites amicus briefing of persons or groups interested in the determination of the issues presented in the case.
The Michigan Supreme Court's order leaves the impression that it intends to re-examine the adoption of the objective "possible cause of action" standard for medical malpractice cases in Solowy. The Solowy Court adopted the objective possible cause of action standard recognized by the Michigan Supreme Court in Moll v Abbott Laboratories, 444 Mich 1; 506 NW2d 816 (1993). While the Moll case involved a pharmaceutical products liability claim, the Solowy Court found that the objective "possible cause of action standard" adopted in Moll was not limited to such claims and also applied in the medical malpractice context. In Moll, the Supreme Court analyzed and considered the possibility of different standards including a "likely cause" standard and a subjective rather than objective reasonable person standard. The Moll Court ultimately concluded that applying an objective possible cause of action standard was consistent with Michigan law and the legislative policy underlying statutes of limitation. The Michigan Supreme Court's future opinion in Bowman may have a significant impact on medical malpractice cases involving alleged delayed diagnosis where the plaintiff relies on the six month discovery rule to commence an action.
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