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Court hands down rare decision upholding patient's right to pursue late-discovered malpractice

In 2011, Valerie Rohde pursued a claim against several doctors and Standish Community Hospital for malpractice that allegedly occurred in 2008, causing her husband's death.  The defendants argued that the case should be dismissed because the statute of limitations had run.  The "normal" statute of limitations in medicine is two years, however, a patient can bring a claim after that time if he or she acts within six months of "reasonable suspicion" of malpractice.  These delayed claims based on the "discovery" exception to the statute of limitations are routinely dismissed by Michigan Courts, sometimes on very flimsy evidence that the patient should have suspected or discovered the claim.  In one case, a patients "itching" in the area of a skin cancer surgery during the two-year period was identified to support a claim that the patient should have suspected malpractice, despite the defendant's statements to the patient that the "itching" was not unusual.

In Rohde's case, her husband attended the ER in 2007 with chest pain and his x-ray revealed a density.  The x-ray was read to suggest no abnormalities, however, and the radiologist later testified that he thought the density was "benign."  In follow-up with his family doctor, the diagnosis was angina and benign hypertension.  Rohde went to the ER with similar complaints again in 2008, and on this visit, it was determined that he had fractured ribs. A "scar" was also identified on his lung, but not recorded in the ER record.

When a radiologist reviewed the x-rays later, he determined that there were no rib fractures and that the lung lesion visible on both x-rays was probably just a scar, but that cancer should be ruled out.   He recommended follow-up x-rays in three months. Rohde testified that no one informed him of the possibility of cancer or the need to follow-up.  In November of 2008, Rohde again saw his physician with complaints of back and rib pain.   He was back again in December of '09 for a physical.  The parties' recollection of the latter appointment vary dramatically.  The family doctor claimed he warned of cancer and recommended a January, 2009 MRI; Rohde denied any mention of cancer or a follow-up test.

In July of 2010, Rohde was diagnosed with lung cancer.  He sued for malpractice in July of 2011, after filing a Notice of Intent and waiting the mandatory six-month waiting period.  He died in January of 2012 and his wife as Personal Representative was substituted as the Plaintiff in the case.  The trial judge ruled that since Rohde was informed that the scar constituted a "spot" on his lung in the fall of 2008, he should have suspected cancer and malpractice at that time and the statute of limitations had run.

On appeal, the higher court rejected the trial judge's analysis.  It pointed to the diametrically opposed testimony regarding the events of 2008 and the evidence suggesting that Rohde was in fact misinformed about his condition.  Under the circumstances, the Appeals' Court judges concluded that a question of fact for the jury had been raised by Rohde's testimony.  It will be up to jurors to decide the credibility of the witnesses and to determine just exactly when Rohde "should have suspected" that he had been victimized by malpractice.

Judge David Sawyer dissented from the high court's decision.  He would hold that Rohde was required to act within six months of the December physical where his family doctor claimed to have informed him of potential cancer.  Judge Sawyer accepted the doctor's claims of his advice, while rejecting the testimony cited by the majority to the effect that Rohde was never informed of a cancer potential.

Thompson O’Neil, P.C.
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Traverse City, Michigan 49684
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