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Michigan Supreme Court Decides Medical Misdiagnosis Case on Discovery Rule

September 1, 2021

Recently, the Michigan Supreme Court heard a medical malpractice case in which the issue concerned the discovery rule, which extends the time a plaintiff has to file a lawsuit.


Kelly Bowman and her husband brought a negligence action based on medical malpractice in the Macomb Circuit Court against St. John Hospital, Ascension Medical Group Michigan, and Tushar Parikh, M.D. The patient claimed that her doctor erroneously advised her that a growth in her breast was benign from his interpretation of a mammogram. For the next two years, she felt the lump grow and sought follow-up care. In 2015, she underwent a biopsy, which revealed invasive ductal carcinoma with lobular features. In May 2015, she was diagnosed with metastatic breast cancer and underwent a double mastectomy, which revealed that the cancer had spread to a lymph node. In 2016, soon after learning that the cancer had spread to her bone marrow, she sought a second opinion from a specialist and learned that the 2013 mammogram might have been misread. In late 2016, she brought a medical malpractice lawsuit.

The Discovery Rule

The defendants moved for summary disposition, arguing that the two-year statutory limitations period had lapsed in June 2015 and that the complaint was untimely under the “discovery rule” found in Michigan Statute § 600.5838a(2). That rule permits plaintiffs alleging medical malpractice to sue within six months after they discover or should have discovered the existence of the claim. The defendants said that because Bowman should have discovered her medical malpractice claim by May 2015, when tests revealed metastatic cancer, she filed her claim too late.

The Michigan Court of Appeals Finds for the Defendants

The Michigan Court of Appeals reversed, finding that Ms. Bowman knew a great deal about her condition over six months before sending the notice of intent:

Kelly at all times knew exactly what her medical history was. She knew of her breast lump, knew that it was in the same location as it was at the time of the 2013 mammogram, and knew that it had grown larger. She did not lack any relevant data about her condition. Although  she had not previously been diagnosed with cancer, she was fully aware of her cancer diagnosis, was fully aware her breast cancer had metastasized, and had undergone a mastectomy, all more than six months before she served her notice of intent or filed her complaint.

The Court of Appeals held that the defendants were entitled to summary disposition because Ms. Bowman’s complaint was untimely.

During the litigation in the Court of Appeals, Ms. Bowman died, and she was replaced in her case by her estate. The estate appealed.

The Michigan Supreme Court’s Decision

Judge Elizabeth T. Clement wrote the opinion for the court and explained:

Except as otherwise provided in this subsection, an action involving a claim based on medical malpractice may be commenced at any time within the applicable period prescribed in section 5805 or sections 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. However, except as otherwise provided in section 5851(7) or (8), the claim shall not be commenced later than 6 years after the date of the act or omission that is the basis for the claim. The burden of proving that the plaintiff, as a result of physical discomfort, appearance, condition, or otherwise, neither discovered nor should have discovered the existence of the claim at least 6 months before the expiration of the period otherwise applicable to the claim is on the plaintiff. A medical malpractice action that is not commenced within the time prescribed by this subsection is barred.

The estate didn’t dispute that the complaint was filed after the two-year limitations period in § 5805(8), and so the complaint was timely only if it was filed “within 6 months after [Ms. Bowman] discover[ed] or should have discovered the existence of the claim.”

To evaluate whether the facts should arouse her suspicion and thus trigger her duty to investigate—whether a plaintiff is “put to inquiry”—the court must use a “flexible,” “fact-specific” inquiry, fueled by “common sense and reason.”

Application of the Discovery Rule

Judge Clement of the Michigan Supreme Court said the question was whether Ms. Bowman should have discovered her medical malpractice claim. The Supreme Court found that Ms. Bowman “seems to have done just what the medical community asked of her.” She examined herself and found a lump. But according to her complaint, “when she passed the baton to the professionals, they dropped it.”

Judge Clement found that the record didn’t show that Ms. Bowman sent the notices of intent to the defendants over six months after she discovered or should have discovered the existence of her claim. As a result, the Court of Appeals’ judgment was reversed. Bowman v. St. John Hosp. & Med. Ctr., 2021 Mich. LEXIS 1335 *; 2021 WL 3266790 (Mich. July 30, 2021).

Contact a Michigan Medical Negligence Attorney

If you or someone you know has recently suffered an injury that may be medical negligence resulting in injury or death, speak with an experienced and knowledgeable medical negligence attorney immediately to protect your interests or those of your loved one.

Buchanan Firm retains medical professionals who are available to immediately investigate your claim to determine if the deviation was caused by medical negligence. Buchanan Firm’s team has Michigan medical malpractice attorneys, doctors, nurses, and paralegals to assist you in this difficult time.

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.