           If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
                revision until final publication in the Michigan Appeals Reports.




                          STATE OF MICHIGAN

                           COURT OF APPEALS



VERNON BOWMAN, Individually and as                               UNPUBLISHED
Personal Representative of the ESTATE OF                         August 13, 2019
KELLY M BOWMAN,

             Plaintiff-Appellee,

v                                                                No. 341640
                                                                 Macomb Circuit Court
ST. JOHN HOSPITAL AND MEDICAL                                    LC No. 2017-002159-NH
CENTER and ASCENSION MEDICAL GROUP
MICHIGAN d/b/a ROMEO PLANK
DIAGNOSTIC CENTER,

             Defendants-Appellants,

and

TUSHAR S PARIKH MD,

             Defendant.


VERNON BOWMAN, Individually and as
Personal Representative of the ESTATE OF
KELLY M BOWMAN,

             Plaintiff-Appellee,

v                                                                No. 341663
                                                                 Macomb Circuit Court
ST. JOHN HOSPITAL AND MEDICAL                                    LC No. 2017-002159-NH
CENTER and ASCENSION MEDICAL GROUP
MICHIGAN d/b/a ROMEO PLANK
DIAGNOSTIC CENTER,

             Defendants,



                                             -1-
and

TUSHAR S PARIKH MD,

                  Defendant-Appellant.


Before: LETICA, P.J., and RONAYNE KRAUSE and BOONSTRA, JJ.

RONAYNE KRAUSE, J. (dissenting).

         I respectfully dissent. The trial court correctly apprehended the standard for applying the
“discovery rule,” MCL 600.5838a(2), as whether a reasonable person should have discovered the
existence of a possible claim rather than whether a reasonable person could have discovered the
existence of a possible claim. The majority misconstrues the case law that was in effect when
the trial court entered its order, and the majority misreads this Court’s recent case of Hutchinson
v Ingham Co Health Dep’t, ___ Mich App ___; ___ NW2d ___ (2019) (Docket No. 341249),
which reaffirms the correct standard. I would affirm.

                                           I. BACKGROUND

        As noted by the majority, the facts are simple. On June 12, 2013, defendant Tushar S.
Parikh, M.D. (Dr. Parikh) interpreted as benign a mass on a mammogram of plaintiff Kelly
Bowman’s1 right breast. According to plaintiff, the mass was, in fact, a cancerous lesion. Dr.
Parikh informed Kelly that the findings were benign, so Kelly did not pursue any further
investigation of the mass. As a consequence, a diagnosis of Kelly’s cancer and the
commencement of treatment did not occur until two years later. Kelly was diagnosed with
invasive ductal carcinoma in April 2015. Plaintiff’s complaint avers that Dr. Parikh misread2 the
2013 mammogram, which she did not realize until she obtained a second medical opinion—not
about her 2013 mammogram, but regarding her ongoing treatment plan in August 2016. Her
second doctor, Dr. Dennis Citrin, reviewed her medical records in that context and informed
Kelly that the 2013 mammogram “should have been interpreted as being positive or suspicious
for cancer.” Plaintiff filed her medical malpractice claims against Dr. Parikh and the Hospitals,3
on June 6, 2017; her husband, Vernon Bowman, alleged a claim for loss of consortium. Kelly


1
  This matter was originally brought by Kelly Bowman. Kelly died during the pendency of this
appeal, and her husband, Vernon Bowman as personal representative of Kelly’s estate, was
substituted in her place.
2
 As the majority notes, whether Dr. Parikh actually did misread the mammogram, and whether it
would constitute malpractice if he did, are issues for the trier of fact. I neither draw nor express
any personal opinions on the matter. I merely presume, with no further consideration, that Dr.
Parikh committed malpractice, looking at the evidence in the light most favorable to the non-
moving party, as I must when reviewing a motion brought under MCR 2.116(C)(7).
3
    The Hospitals’ alleged liability is vicarious.


                                                     -2-
died as a consequence of her initially undiagnosed breast cancer on March 11, 2018, and Vernon,
as personal representative of Kelly’s estate, was substituted in her place.

        Defendants argue that plaintiffs’ claim accrued on June 12, 2013, when the 2013
mammogram was performed, so the two-year limitations period expired on the two-year
anniversary of the mammogram at issue in this case, which was June 12, 2015. Defendants
contend that plaintiffs may not rely on the six-month limitations period provided by the
discovery rule, because Kelly’s breast cancer was diagnosed no later than either April 30, 2015,
or May 28, 2015.4 Consequently, defendants conclude that plaintiffs’ claims were time-barred at
least a year before plaintiffs sent a NOI on December 10, 2016, and filed their complaint on June
12, 2017. Plaintiffs contend that, standing alone, the cancer diagnosis was not enough to put
Kelly on notice of the malpractice. Rather, the discovery rule was triggered by the second
medical opinion rendered in August 2016 by Dr. Citrin, who advised Kelly that the 2013
mammogram had been misread. Both parties’ arithmetic is correct. If the discovery rule was not
triggered until Dr. Citrin advised Kelly of the 2013 misreading of the mammogram, plaintiffs’
NOI and complaint would have been timely. However, if the discovery rule was triggered in
April or May of 2015, plaintiffs’ NOI and complaint would have been untimely.

        The trial court denied defendants’ motions for summary disposition, relying on a decision
from this Court, Jendrusina v Mishra, 316 Mich App 621; 892 NW2d 423 (2016), for the
proposition that the critical inquiry was whether plaintiffs should have discovered the existence
of their claim rather than whether plaintiffs could have done so. The trial court found:

          that it is likely that a reasonable person could have understood that a definitive
          finding of cancer in Kelly’s right breast in 2015 meant that Dr. Parikh had
          misread the mammogram of Kelly’s right breast in 2013. Here, Kelly was aware
          of a mass in her right breast in June of 2013, and before her 2015 cancer diagnosis
          in the same breast, she complained to her doctors that the mass had increased in
          size, leading to the 2015 mammogram. . . . But the Court cannot conclude that a
          reasonable person should have discovered the existence of a claim against Dr.
          Parikh solely on the basis of a subsequent cancer diagnosis. There is no evidence
          before the Court that any of Kelly’s treating physicians told her that her 2013
          mammogram was suspicious for cancer until August of 2016, or that a 2015
          cancer diagnosis should put a reasonable person on notice that a benign
          mammogram from 2013 was necessarily the result of a negligent
          misinterpretation.

The trial court therefore held that plaintiffs’ NOI and complaint were timely. Dr. Parikh and the
Hospitals each filed applications for leave to appeal, which this Court granted and consolidated.
This appeal followed.

                                    II. STANDARD OF REVIEW



4
    Defendants disagree as to which date is proper, but the effect of either date is the same.


                                                   -3-
         A grant or denial of summary disposition is reviewed de novo on the basis of the entire
record to determine if the moving party is entitled to judgment as a matter of law. Maiden v
Rozwood, 461 Mich 109, 118; 597 NW2d 817 (1999). Under MCR 2.116(C)(7), where the claim
is allegedly barred, the trial court must accept as true the contents of the complaint, unless they
are contradicted by documentary evidence submitted by the moving party. Id. at 119. The
interpretation and application of statutes, rules, and legal doctrines is reviewed de novo. Estes v
Titus, 481 Mich 573, 578-579; 751 NW2d 493 (2008). If the facts are undisputed, “whether a
plaintiff's action is barred by the statute of limitations is a question of law, to be determined by
the trial judge.” Moll v Abbot Laboratories, 444 Mich 1, 29; 506 NW2d 816 (1993). Likewise,
if the facts are undisputed, “when the plaintiff should have discovered her claim is a question of
law.” Solowy v Oakwood Hosp Corp, 454 Mich 214, 216; 561 NW2d 843 (1997).

                                    III. APPLICABLE LAW

         There is no dispute in this matter that plaintiffs’ claims would be untimely unless saved
by application of the “discovery rule” codified in MCL 600.5838a(2). That statute provides, in
its entirety:

       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. This subsection does not apply, and the
       plaintiff is subject to the period of limitations set forth in subsection (3), under 1
       of the following circumstances:

       (a) If 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.

       (b) There has been permanent loss of or damage to a reproductive organ resulting
       in the inability to procreate.

The operative provisions relevant to the instant matter state that “an action involving a claim
based on medical malpractice may be commenced . . . within 6 months after the plaintiff
discovers or should have discovered the existence of the claim.”




                                                -4-
        Under the discovery rule, “ ‘[a] plaintiff’s cause of action accrues when he discovers or,
through the exercise of reasonable diligence, should have discovered that he has a possible cause
of action.’ ” Moll, 444 Mich at 20, quoting and adopting in part Bonney v Upjohn Co, 129 Mich
App 18, 24; 342 NW2d 551 (1983) (emphasis added by the Moll Court). Thus, “under the
discovery rule, the statute of limitations begins to run when the plaintiff discovers or, through the
exercise of reasonable diligence, should have discovered a possible cause of action.” Moll, 444
Mich at 29. This is an objective standard, and it does not require full knowledge of the entirety
of the harm suffered. Solowy, 454 Mich at 223-224. Nonetheless, a plaintiff must “possess at
least some minimum level of information that, when viewed in its totality, suggests a nexus
between the injury and the negligent act.” Id. at 226. The objective, reasonable-person standard
is applied from the perspective of laypersons, not experts. Jendrusina, 316 Mich App at 632-
635.

        While this case was pending (indeed, only slightly more than a month after oral argument
was held), this Court decided Hutchinson v Ingham Co Health Dep't, ___ Mich App ___, ___;
___ NW2d ___ (2019) (Docket No. 341249). Hutchinson features some similarities to the
instant case. In particular, the plaintiff also alleged malpractice based on a failure to earlier
diagnose breast cancer. In Hutchinson, this Court reiterated that any triggering of the discovery
rule must be based on the reasonable perceptions and understanding of a layperson, not a medical
or legal expert. Hutchinson, ___ Mich App at ___ (slip op at p 17). Due diligence does not
obligate a plaintiff to undertake heroic efforts, and it permits a plaintiff to rely on and trust
assurances made by medical professionals. Id. at ___ (slip op at pp 16-17). This Court
reaffirmed that a plaintiff is not put on notice of a potential claim merely because the results of a
recent diagnostic test differ from the reported results of a prior diagnostic test. Id. at ___ (slip op
at pp 14-15). Patients need not immediately assume malpractice and deceit by a prior
professional whenever a new diagnosis is made on the basis of a repeated diagnostic test, even if
the patient has some subjective suspicions. Id. at ___ (slip op at pp 14-17).

                                        IV. APPLICATION

        As with the instant case, Hutchinson involved a plaintiff’s malpractice claim against a
health professional who had previously misread a mammogram as benign. This Court concluded
that, under the circumstances of that case, the plaintiff had been put on notice of her potential
cause of action when she received a definitive cancer diagnosis. Hutchinson, ___ Mich App at
___ (slip op at pp 17-18). However, that conclusion has no bearing on the instant matter. First,
Hutchinson flatly rejected the contention that a diagnosis, standing alone, was per se notice that a
prior benign finding might have constituted malpractice. Rather, any such new diagnosis must
be considered along with the totality of the other circumstances. Secondly, the plaintiff in
Hutchinson was explicitly told by her doctors, contemporaneously with the definitive diagnosis,
that her earlier mammogram had been mishandled. Id. at ___ (slip op at pp 7-8). Therefore, one
of the circumstances attendant to the definitive diagnosis was an express statement that the
defendants might have committed malpractice. Finally, none of the parties in Hutchinson
apparently disputed whether the plaintiff was on notice by the time of the definitive diagnosis,
but only whether the plaintiff had been put on notice earlier. Consequently, the possibility that
the plaintiff’s definitive diagnosis might not have been sufficient under the totality of the
circumstances was, on the face of the opinion, apparently never considered or analyzed. No such


                                                 -5-
presumption is applicable here, and the circumstances of plaintiff’s diagnosis here clearly differ
radically from the circumstances of the plaintiff’s diagnosis in Hutchinson.

        Similarly, Jendrusina explored a number of relevant distinctions between the situation in
that case and the situation that had been presented in Solowy. In Jendrusina, this Court noted
that a diagnosis or test result could not trigger the discovery rule if the diagnosis or result were
never communicated to the plaintiff. Jendrusina, 316 Mich App at 627-628. The Jendrusina
Court observed that the plaintiff in Solowy had actually known that she had a possible cause of
action when she was told by a doctor that she might have a recurrence of cancer. Id. at 629. As
the majority notes, the plaintiff in Jendrusina, unlike plaintiff in this case, was completely
unaware of any health concerns relevant to his eventual malpractice claim. Id. at 630-633.
However, Jendrusina did not hold that an absolute level of unawareness is the requisite standard.
Furthermore, Jendrusina emphasized that patients were not expected to draw the same diagnostic
conclusions as medical specialists. Id. at 631-633. Furthermore, unlike the plaintiff in Solowy,
plaintiff’s cancer diagnosis here was not a recurrence of symptoms that might suggest the
recurrence of the same underlying cause. See id. at 631-633. Arguably, plaintiff here had
somewhat less reason to be surprised than the plaintiff in Jendrusina, but nevertheless, plaintiff
is not an oncologist5 and not expected to be her own doctor. See id. at 633-634.

       As Jendrusina held, a new or worsened diagnosis could lead a reasonable person to
suspect the possibility of prior malpractice, but is insufficient to establish that a reasonable
person should have discovered any such malpractice. Id. at 634-635. To hold otherwise “would
not merely be inconsistent with the text of the statute, but it would also be highly disruptive to
the doctor-patient relationship for courts to advise patients that they ‘should’ consider every new
diagnosis as evidence of possible malpractice until proven otherwise.” Id. at 635. I believe the
majority extrapolates too much from the fact that plaintiff’s diagnosis here was changed, rather
than wholly novel. Jendrusina unambiguously held that a changed diagnosis is not grounds for
suspecting a prior act of malpractice, and to hold otherwise would inevitably transform the
doctor-patient relationship into an adversarial one.

        Defendants dedicate considerable effort to the argument that this Court’s opinion in
Jendrusina is wrong and—by at least strong implication—should not be followed. This
argument has clearly been rejected by Hutchinson. Even if Hutchinson did not exist, Jendrusina
is a published case of this Court, issued after November 1, 1990, that has not been reversed or
modified by our Supreme Court6 or by a conflict panel of this Court. See MCR 7.215(J)(1).
Furthermore, Jendrusina does not conflict with Moll or Solowy. Moll and Solowy addressed
what a plaintiff must become aware of: “a possible cause of action” rather than “a probable cause
of action.” In Jendrusina, this Court addressed the standard for imputing awareness in the first
place: specifically, “should” rather than “could.” Jendrusina used the same word chosen by the
Legislature in the statute, and it observed that “should” dictates the standard for evaluating a


5
    Nor are we.
6
  Our Supreme Court denied leave to appeal in Jendrusina, 501 Mich 958; 905 NW2d 231
(2018), and denied reconsideration of its denial of leave, 501 Mich 1027; 908 NW2d 306 (2018).


                                                -6-
plaintiff’s constructive awareness of “a possible cause of action.” Additionally, this Court
applied the reasonable-person standard properly: medical knowledge has long been held the
almost exclusive provenance of experts rather than ordinary laypersons. See, e.g., Woodard v
Custer, 473 Mich 1, 6; 702 NW2d 522 (2005).

        Put more simply, Jendrusina is binding and was correctly understood by the trial court.
The limitations period provided by the discovery rule begins running when an ordinary layperson
should have linked some knowledge actually in his or her possession to the possibility of a cause
of action. As Solowy cautioned, “the ‘possible cause of action’ standard is not an ‘anything is
possible’ standard.” Solowy, 454 Mich at 226. Thus, the inquiry is whether an ordinary person
should have become aware of a possibility. Defendants’ formulation would, erroneously, be
whether an ordinary person could have become so aware. The majority accepts this formulation,
despite the fact that every case we agree is binding rejects it. The trial court properly observed
that the statute and Jendrusina required the discovery itself to be more than a mere possibility.
Hutchinson reaffirms that principle.7

        Defendants argue that Kelly should have been aware of a possible cause of action in 2015
when she was diagnosed with cancer. Defendants emphasize that the diagnosis was not made in
a vacuum, and it should be considered in the context of her other knowledge: that the lump had
existed for considerable time, that the lump had grown in size, that Kelly’s concern regarding the
lump was why the 2013 mammogram had been performed in the first place, and it “is common
knowledge that cancer does not metastasize overnight.” It is, however, equally common
knowledge that not all breast lumps are cancerous even if they are uncomfortable or painful, that
lumps may change over time yet remain benign, and that some initially-benign masses can
become cancerous. It is also common knowledge that some cancers can grow significantly faster
than other cancers. As the Hutchinson Court observed, an adverse diagnosis on a test performed
today does not automatically imply malpractice in reporting a benign diagnosis on the same test
performed several years previously. Hutchinson, ___ Mich App at ___ (slip op at pp 14-15, 17-
18). Furthermore, patients are entitled to trust medical professionals. Id. at ___ (slip op at pp
16-17). We are not oncologists, and neither was Kelly.

        I conclude that the trial court’s analysis was entirely correct. Kelly could have become
aware of a possible cause of action against defendants when she received her cancer diagnosis.
However, no facts have been presented warranting an immediate assumption that, instead of
receiving a new diagnosis, she had previously been misdiagnosed. In contrast, the plaintiff in
Hutchinson was explicitly advised of possible earlier malpractice contemporaneously with her
diagnosis.

       The majority’s analysis creates a sad consequence apart from the tragedy of Kelly
Bowman’s death. Patients frequently seek consultation with physicians because they fear that a
condition (a breast lump, a swollen gland, a mole) might harbor cancer. Most breast lumps are


7
  I respectfully disagree with the majority’s apprehension that I “seek to conflate the terms
‘discovers’ with ‘should have discovered.’ ” To the contrary, it appears to me that the majority
seeks to conflate “should have discovered” with “could have discovered.”


                                               -7-
not cancerous, and nor are most swollen glands, or most moles. The majority nevertheless places
on every patient who receives a cancer diagnosis an obligation to immediately go back in time by
launching an investigation into the accuracy of all previous diagnostic testing. Those who fail to
undertake this mission within six months of diagnosis have no legal recourse if they later learn
that a physician’s negligence condemned them to death.

        Perhaps in some cases, a fact surrounding the earlier diagnostic inquiry will have
triggered a reasonable basis for a suspicion of malpractice. That was the case in Solowy, where
the plaintiff herself articulated that the cancer symptoms “started all over again.” Solowy, 454
Mich at 217. That fact sufficed to put the plaintiff on notice that the cancer had recurred, despite
her previous physicians’ assurance that she was cured. Here, however, the majority identifies no
fact that should have put Kelly on notice that the mammogram was misread. The majority
articulates no reason why Kelly should have assumed, contrary to the facts that breast lumps are
common, usually benign, and usually requiring no further treatment, and contrary to the
assurances of a trusted medical professional, that her breast lump was not benign in 2013. The
majority likewise identifies nothing about her first 2015 diagnosis that should have immediately
informed an ordinary person that she did not have a benign lump in 2013. Absent extraordinary
circumstances or a proper motion, we are limited to considering only the record provided to us.
Sherman v Sea Ray Boats, Inc, 251 Mich App 41, 56; 649 NW2d 783 (2002); Hallman v Holy
Cross Hosp of Detroit, 475 Mich 874, 874; 713 NW2d 779 (2006). If such facts exist, they are
not found in this record.

       I reject as unacceptable and legally groundless the notion that every cancer patient must
assume prior negligence or lose their right to sue, even when no reason exists to suspect an error.
The Legislature did not intend such a rule when it used the term “should have discovered.”
Solowy, Jendrusina and Hutchinson understood that the term “should have discovered” is not to
be applied in a vacuum, but only when a plaintiff has notice of some sort that her condition
should have been discovered earlier. There was no such notice or awareness here.

        The trial court correctly determined that the limitations period provided by the discovery
rule began running in August of 2016 when Kelly was specifically advised that Dr. Parikh’s
interpretation of the 2013 mammogram was a misdiagnosis rather than an accurate diagnosis of
Kelly’s condition at the time. The trial court therefore correctly denied defendants’ motions for
summary disposition pursuant to MCR 2.116(C)(7).

       I would affirm.

                                                             /s/ Amy Ronayne Krause




                                                -8-
