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Court reaffirms holding that continuing misdiagnosis or mis-treatment does not extend statute of limitations

Brown v. Dr. Karen Milner and Dr. Dan Andrews, et al., is a very unattractive malpractice claim brought by a Ph.D., Mr. Kenneth Brown, against his treating physicians.  Brown claimed that inadequate or substandard care by his physicians contributed to a dysfunctional decade that included multiple job changes, multiple failed business ventures, three bankruptcy declarations, two divorces, and perhaps two criminal sexual conduct crimes. It will shock very few readers to learn that his malpractice claim was dismissed.  It is unfortunate, however, that the justification for the dismissal was the Michigan judiciary's refusal to consider "continuing wrong" liability.

Brown claimed that he was misdiagnosed and mis-treated over the course of years and that his most recent claims accrued during treatment rendered within the two year statute of limitations.  After the Court in 2007 threw out his claim as "stale", he sought to amend to sue over the more recent failure to diagnose and treat.  It was his argument that he should at least be able to sue over the current alleged errors.

The court rejected Brown's claim, holding that Michigan will not recognize a suit against a doctor [or anyone else, for that matter], even for treatment during the previous two years, if the original mistake in diagnosis or treatment is more than two years old and "there were no new, distinct negligent acts or omissions."  The Court has applied this very harsh standard even to a physician's repeated failure to investigate a breast lump that ultimately became Stage III breast cancer, where his original mis-diagnosis was fibrocystic disease.  While Brown's claim is certainly not a very persuasive vehicle upon which to build this argument, we strongly believe that a professional should not be immunized from the consequences of a serious error, simply because he has persisted in the error for more than two years. 

In the case of a physician, simply for example, we believe that the professional owes his patient a duty to perform a complete examination and conform to the standard of care with each new presentation of a medical condition warranting a full-workup.  That does not mean that a breast lump should be biopsied each month, or that a manic-depressive should receive a full psychological work-up at every visit.  It does mean, however, that if a lump persists, or psychological treatment continues to be ineffective, at some point a professional meeting the standard of care owes a duty to re-examine his patient and his diagnosis:  when that date arrives (in the opinion of professionals practicing the same specialty) a new duty is created and should be recognized by the law.  The current analysis, authored by the insurer-friendly Engler majority just a few years ago, is manifestly wrong, unfair, and inadequately reasoned.

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