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Court refuses to apply "discovery" extension where Doctor's employment is misrepresented in chart

Gary Tyson went the the VA Medical Center in Ann Arbor for x-rays on his ankle.  One Dr. Ebrahim was identified as his "Primary Interpreting Staff" and "Attending Radiologist," and it turns out that Ebrahim mis-read the x-ray.  Tyson continued to ambulate on a fractured ankle for several weeks, before the mis-diagnosis was discovered.  Under the Federal Tort Claims Act, he filed a claim against the VA Medical Center.  Under that Act, the veteran cannot sue the individual practitioner and must look only to the Federal Government for compensation.  To his surprise, the VA eventually responded--after the two-year statute of limitations for malpractice claims--by notifying Tyson that it was not responsible under the FTCA for the error made by Ebrahim, because Ebrahim was not employed on staff by the VA:  he was an employee of the University of Michigan working under contract for the VA.

Tyson immediately filed a lawsuit against Ebrahim's actual employer, The U of M Board of Regents, relying upon the six-month "discovery rule" to justify suit after the two-year deadline.  The suit was dismissed based on the statute of limitations, and two of the three Court of Appeals judges concurred in the dismissal. 

The third, Judge Shapiro, filed a heartfelt dissent lamenting the complicated, impractical and unreasonable impact of enforcing arbitrary rules that deflect the parties and the courts from the efficient resolution of claims.  He noted that the majority would deny Tyson's right to pursue the University because it "was not completely impossible" for Tyson to identify Tyson's involvement, even though he and his attorneys may have exercised "due diligence" in investigating a claim involving an apparent "staff physician" of the VA. He pointed to a 1997 decision of the Supreme Court which had emphasized that "courts should be guided by the doctrine of reasonableness and the standard of due diligence, and must consider the totality of information available to the [injury victim]."

Finally, the Judge noted that the natural consequence of a holding like the one denying Tyson's claim would be to encourage attorneys to file legal notices against every health care provider or agency in a county or region----simply to assure that unknown contract relationship would not deprive the injury victim of his right to seek redress.  Judge Shapiro  concluded that it was far more practical to enforce the six-month discovery rule to allow a diligent plaintiff to add an undisclosed principal promptly upon discovery of his or her identity--rather than reserving the discovery rule for application only where the victim was not previously aware of his injury. 

The contricted interpretation of so-called "discovery exceptions" to the statute of limitations in Michigan, generally, has its genesis in a decision by the so-called "Engler Majority" of the Supreme Court, denying recourse against the employer of a rapist/murderer.  In the latter case, it took years to identify the perpetrator of the crime, so there was acknowledgement that the family could not sue the perpetrator or his employer within the operative statute of limitations.  The Engler activists reversed existing Michigan law to rule that the statute would be extended only if there was late discovery of the injury---not in the situation where the crime was known but the identity of the perpetrator was not.

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