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How Long Do I Have to File a Medical Malpractice Case in Michigan If I Just Discovered My Injury?

July 28, 2021

If you want to bring an action against a doctor, surgeon, or hospital in Michigan for medical malpractice, there’s a time limit. Michigan has a statute of limitations on medical negligence or medical malpractice cases. As a result, there’s only so much time after a medical malpractice injury in which an injured victim can file a lawsuit. Once this time expires, the injured patient can’t being an action for that claim. After the expiration of the statute of limitations, he or she is forever barred from suing for damages.

What is the Discovery Rule?

The statute of limitations for a medical malpractice claim is two years from the date of the negligent act or omission or six months from the date when the claimant discovered or should have discovered the existence of the claim, provided the case is brought within six years of the act or omission.

The discovery rule can extend the statute of limitations when the patient’s injury wasn’t obvious or known. The discovery rule says that the statute of limitations or time to file a lawsuit deadline starts when the patient discovers or reasonably should have discovered the injury.

Note that this rule is inapplicable when the harm is obvious, like if the surgeon operated on the wrong hip.

What Did a Recent Michigan Court Say About the Discovery Rule?

The Michigan Court of Appeals recently decided a case where it held that state law prevents a patient from pursuing a clear case of medical malpractice after he discovered the mass in his abdomen was actually a surgical towel inadvertently left behind from a surgery 17 years earlier.

In Gatz v. Heinzelmann, Docket No. 351278 (Mich. App. February 18, 2021), the appellate court affirmed the decision of the Saginaw Circuit Court to dimiss the case in favor of the surgeon because the action for the 17-year-old injury was barred by Michigan’s discovery rule.

Lloyd Gatz underwent surgery at Covenant Healthcare on February 4, 2000, to remove a mass in his bowel. The mass was determined to be noncancerous and benign. The discharge papers Gatz received said that the surgery was performed without any complications. But it eventually became apparent that a surgical towel was inadvertently left in his abdomen. Nine years later, in 2009, Gatz sought medical treatment for an unrelated issue. Gatz had surgery to remove the towel in 2017. Gatz filed a complaint against the surgeon, Dr. Heinzelmann, and the members of the surgical staff who assisted him in the 2000 surgery. Gatz alleged medical malpractice by the surgeon, medical neglect, and vicarious liability of the hospital.

The defendants filed motions arguing that the claims were time-barred. The trial court agreed and granted summary disposition in the defendants’ favor, holding that a two-year limitations period applies to malpractice claims.

Plaintiff Argues Fraudulent Concealment on Appeal

On appeal, Gatz argued that his medical malpractice complaint was timely filed because the claim was started later than six years after the act or omission that was the basis for the malpractice claim. Moreover, he said that Michigan Statute § 600.5838a(2)(a) provides an exception that says a claim isn’t barred “[i]f discovery of the existence of the claim was prevented by the fraudulent conduct of the health care professional against whom the claim is made or a named employee or agent of the health professional against whom the claim is made, or of the health facility against whom the claim is made or a named employee or agent of a health facility against whom the claim is made.” Therefore, if, because of fraudulent conduct, a plaintiff is prevented from discovering the existence of a claim, the plaintiff has additional time to file. Gatz contended that this exception applied to his case and that the deadline to file was extended.

The Court of Appeals explained that unless MCL § 600.5838a(2)(a) is applicable, a plaintiff’s complaint is untimely and their claim is barred by the statute of limitations.

Establishing Fraudulent Concealment

The Court said that to establish fraudulent concealment, the plaintiff must prove that the defendant committed affirmative acts or misrepresentations that were designed to prevent subsequent discovery. But there’s an exception to this rule that there’s an affirmative duty to disclose where the parties are in a fiduciary relationship. In those cases, fraudulent concealment can be shown when the plaintiff alleges facts that indicate that the defendant intentionally failed to disclose information so as to mislead the plaintiff, which would allow the period of limitations to expire before the plaintiff realizes he or she has a claim. However, the Court of Appeals said that the fiduciary must have knowledge or be aware, of that which wasn’t disclosed.

The Court found that a fiduciary relationship existed between Gatz and Dr. Heinzelmann. However, the Court held that Gatz failed to present facts establishing fraudulent conduct by any of the defendants in the case. The record demonstrated that no one on the surgical team, including Dr. Heinzelmann, knew that a towel had gone missing during the surgery, or that a towel was retained inside his body. Without the required knowledge about the retained towel, the fiduciary exception to fraudulent conduct was inapplicable because “the fiduciary must have knowledge of that which was not disclosed,” the Court held. In other words, even if a fiduciary relationship existed between the plaintiff and each defendant, the fact that none of the defendants were aware of the undisclosed knowledge (the retention of a towel) means that plaintiff couldn’t show fraudulent concealment by the surgeon or the hospital.

As a result, the decision of the Saginaw Circuit Court dismissing Gatz’s case was affirmed.

Contact Us

For a free consultation with an experienced Michigan medical malpractice attorney, contact Buchanan Firm. We can discuss your situation if you believe you’ve been serious injured as the result of a medical mistake and make sure your claim is not barred by Michigan’s statute of limitations.

Our firm proudly serves people all across Michigan, including major cities like Grand Rapids, Muskegon, Detroit, Lansing, Holland, St. Joe, and Ann Arbor, and rural towns such as Lowell, Ada, Fremont, Newaygo, Grand Haven, Rockford, and Cedar Springs. We will meet you after-hours, at home or in the hospital to accommodate you.