In Michigan, most claims for medical malpractice must be filed within two years of when the negligent act was committed, thereby leading to injury. However, because medical malpractice may not be immediately known to an individual, a suit may be commenced under the “discovery rule” as long as it’s done within 6 years of the act or omission that is the basis of the claim.
A claim brought pursuant to the discovery rule must be commenced at any time within 6 months after the plaintiff discovers or should have discovered the existence of the claim, according to MCL 600.5838a(2).
In a recent published Court of Appeals decision, clarity is provided regarding the “should have discovered,” which has been a hotly contested issue. In reviewing Bowman v. St. John Hosp. & Med. Ctr., the court analyzed the history of the discovery rule and found two factual components. First, the plaintiff “should have discovered” a possible cause of action when the available facts would lead to inference of malpractice. Secondly, a plaintiff should have discovered the possible cause of action when the plaintiff knows facts that should arouse suspicion and doesn’t diligently investigate.
In Bowman, the plaintiff was advised in 2013 that a growth in her breast was benign. For the next two years, she felt the lump grow and sought follow-up care. In 2015, she was diagnosed with metastatic breast cancer. Then, in 2016, soon after learning that the cancer had spread to her bone marrow, she sought a second opinion and learned that the 2013 mammogram might have been misread. The court determined that prior to 2016, the plaintiff had no reason to believe that the misreading of the 2013 mammogram was the cause of her delayed diagnosis.
In other words, the plaintiff in the Bowman case had grounds to file a medical malpractice lawsuit six months after the date she first suspected malpractice in 2016, even though the actual malpractice was committed three years prior. Without the discovery rule, the statute of limitations (or deadline for filing a claim) would have expired before the plaintiff even had a chance to learn of the malpractice.
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