Prostate cancer malpractice case is dismissed due to delay in filing
Andrew Paluda died in 2011 as a result of prostate cancer. Before dying, however, he sued Stephen A. Williams, M.D., alleging that Williams, his Internist, had wrongfully failed to inform him of a November, 2005, elevated Prostate Specific Antigen (PSA) test that should have resulted in earlier treatment. Williams claimed he did inform Paluda of the 2005 result and that he recommended follow-up which Paluda declined.
Paluda saw Williams for a general health evaluation in 2007, but no action was taken on the PSA test and Williams admitted that it was not discussed at that time. In July of 2008, however, Paluda saw Williams complaining of difficulty urinating, and the process of investigating his complaints and diagnosing prostate cancer began. Cancer was diagnosed in August of that year, however, Paluda did not sue Williams until November of 2010, after filing a Notice of Intent and starting the six-month "waiting period" in May of 2010.
Williams sought dismissal of Paluda's claim, not on its merits, but rather based on violation of the statute of limitations. Under holdings of the Republican majority of Michigan's Supreme Court, the "continuing tort" theory has been repudiated and the general theory of "discovery tolling" of claims to delay the running of the statute of limitations, has been severely restricted. As a result, Paluda has no legal claim for any errors in failing to investigate the PSA test in 2007, if he made the same mistake two years earlier: the statute of limitations began to run with his 2005 error--even if the consequences weren't apparent to the patient.
In the instant case, the normal two-year statute of limitations for a malpractice claim expired two years after the abnormal PSA test. That left Paluda with two options: either proving that he filed his Notice of Intent (NOI) within six months of reasonable discovery, or proving that Williams fraudulently hid his error from Paluda. Paluda's attorneys argued that both claims applied, pointing out that as Paluda's doctor, Williams owed a fiduciary duty to Paluda that obligated him to disclose any error in treatment.
The trial judge rejected both of Paluda's arguments for extending or "tolling" the statute of limitations. It held that Paluda had reasonable suspicion of poor care when he was diagnosed with cancer in 2008, even though Paluda denied that he had been informed of the 2007 test results. The judge also held that the Paludas had not adequated pleaded facts documenting fraudulent concealment by Williams.
Rather surprisingly, even in this atmosphere of catering to medical malpractice insurers, the Court of Appeals sustained the lower court's ruling. As to the fraud claim, it held that Williams owed no duty to disclose an error if he was unaware of the underlying claim. And the Court apparently decided that he was, although that would appear to be a question of fact, given the PSA test result and the evidence that it was not discussed at two pertinent physician visits.
Even more surprising, however, was the Court's decision that Paluda had reasonable grounds to suspect malpractice when the cancer was diagnosed, given Paluda's claim that he was never told of the concerning 2007 PSA test: he argued that he was unaware of the need to investigate prostate cancer in 2007 until he ordered his medical records from Williams in 2010 and found the suspect test result. The reviewing court apparently concluded that simply being diagnosed with cancer should have prompted Paluda to suspect poor medical care and to order his medical chart immediately, so that he could file an NOI within six months. We know of very few "reasonable" patients whose first reaction to a cancer diagnosis would be to immediately suspect their doctor of having failed to alert them to years-old cancer warnings. The allegations in this case should have resulted in a jury assessment of the truth of Paluda's and William's conflicting claims about whether Paluda was informed of his 2005 PSA test.