Dyke v. Richard, 40 Mich. App. 115

Summary

The Michigan Court of Appeals addressed whether Michigan's two-year medical malpractice limitations period barred claims against a physician and hospital arising from an allegedly missed pelvic fracture diagnosis. The court affirmed judgment for the physician, reversed in part as to the hospital's alleged independent negligence and the negligence of an X-ray technician, and rejected the plaintiffs' fraudulent-concealment and contract theories.

Holdings

1. Under MCLA 600.5838, a malpractice claim accrued when Dr. Feller discontinued treating or otherwise serving Ruth Dyke. Because treatment ended no later than October 17, 1965, and suit was filed on February 9, 1968, the two-year malpractice limitations period barred the claim.
2. The limitations bar against the physician also barred the plaintiff's claim that the hospital was vicariously liable for the physician's malpractice.
3. The two-year malpractice statute of limitations did not apply to claims alleging the hospital's own negligence or negligence by an X-ray technician who was not a licensed professional. The trial court therefore erred in relying on that statute to grant summary judgment for the hospital.
4. The complaint did not allege sufficient facts to establish fraudulent concealment by Dr. Feller.
5. The action against Dr. Feller was one for malpractice and could not avoid the two-year limitations period merely because plaintiffs characterized it as sounding in contract as well as tort.

Questions Presented

1. Whether the two-year malpractice statute of limitations accrued under Michigan's statutory last-treatment rule and barred the claim against Dr. Feller.
2. Whether the limitations bar applicable to the physician's malpractice claim also barred the hospital's vicarious-liability claim.
3. Whether the two-year malpractice limitations period applied to claims alleging the hospital's own negligence or negligence by an unlicensed X-ray technician.
4. Whether the complaint sufficiently alleged fraudulent concealment to toll the statute of limitations.
5. Whether characterizing the action as arising in contract avoided the two-year malpractice limitations period.

Disposition

other