                           STATE OF MICHIGAN

                            COURT OF APPEALS



KERRY JENDRUSINA,                                                      FOR PUBLICATION
                                                                       August 4, 2016
               Plaintiff-Appellant,                                    9:00 a.m.

v                                                                      No. 325133
                                                                       Macomb Circuit Court
SHYAM MISHRA, M.D. and SHYAM N.                                        LC No. 2013-003802-NH
MISHRA, M.D., P.C.,

               Defendants-Appellees.


Before: GLEICHER, P.J., and JANSEN and SHAPIRO, JJ.

SHAPIRO, J.

        Plaintiff Kerry Jendrusina filed this medical malpractice case against his primary care
physician, Dr. Shyam Mishra, a specialist in internal medicine. Defendant filed a motion for
summary disposition asserting that the Notice of Intent, and therefore the complaint, had not
been timely filed. Plaintiff responded that the claim had been initiated within the six-month
discovery period defined by the Legislature in MCL 600.5938a. That statute provides in
pertinent part: “[A]n 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[.]” MCL 600.5938a(3) (emphasis added). The trial court granted
defendant’s motion finding that claim was not timely. In so ruling, the trial court effectively
substituted the phrase “could have” for “should have” in the statute. Because we are to follow
the text of the statute as written, we reverse and remand.

       On January 3, 2011, plaintiff went to the hospital with flu-like symptoms. He was found
to be dehydrated and after performing various tests, the hospital staff determined that plaintiff
was in irreversible kidney failure. As a result he was placed on lifetime dialysis with its
attendant morbidity and mortality.

        Plaintiff asserts that defendant failed to take action as required by the relevant standard of
care, such as a referral to a nephrologist (kidney specialist), despite the fact that for several years
plaintiff’s blood tests—contained within plaintiff’s medical chart maintained by Dr. Mishra—
demonstrated worsening and eventually irreversible kidney disease. Plaintiff further asserts that
had Dr. Mishra complied with the standard of care, plaintiff’s irreversible kidney failure would
have been avoided.




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        According to plaintiff, he did not discover the existence of his claim until September 20,
2012. On that date, plaintiff was seen by Dr. Jukaku Tayeb, a treating nephrologist. According
to plaintiff’s testimony:

       [Dr. Tayeb] came in and what it was, he got full biopsy, not just a short version
       out of Clinton Henry Ford, out of Detroit. He got that and he read through it and
       reviewed the case and talked to the pathologist, I guess, and he goes, “I got your
       full pathology report here,” and he goes, “Did your doctor—why didn’t you come
       to a nephrologist?” I said I was with an internist. The internist said everything
       was fine . . . . Then he started ranting, saying, “The doctor should have sent you.
       I could have kept you off dialysis. You should have come here years ago. I could
       have prevented you from being on dialysis and you going into full kidney failure,
       if you would have come to a nephrologist early on.”

Plaintiff testified that when Dr. Tayeb told him this, he “was shocked. I was dumbfounded.
That was like someone punching me in the gut.” He testified that before that conversation with
Dr. Tayeb he did not know his kidney failure had developed over years and could have been
avoided with an earlier referral and treatment. He testified that until then “I thought it happens,
it happens.” He testified that immediately after this visit with Dr. Tayeb he called his wife and
said “Oh, my God. I think Mishra screwed up” and the following day he contacted an attorney.
Calculating the six-month discovery period from September 20, 2012, plaintiff timely initiated
this case. The trial court concluded, however, that plaintiff should have discovered the existence
of his claim when he was diagnosed with kidney failure in January 2011.

        In reviewing the trial court’s analysis we must be strictly guided by the language of the
statute. “If the language of a statute is clear and unambiguous, this Court must enforce the
statute as written.” People v Dowdy, 489 Mich 373, 379; 802 NW2d 239 (2011).
        Our function in construing statutory language is to effectuate the Legislature’s
        intent. Plain and clear language is the best indicator of that intent, and such
        statutory language must be enforced as written. [Velez v Tuma, 492 Mich 1, 16-
        17; 821 NW2d 432 (2012).]

Significantly, we note that the legislature chose the phrase “should have” rather than “could
have” in the statutory text. According to the New Oxford American Dictionary (3rd ed), “could”
is “used to indicate possibility” whereas “should” is “used to indicate what is probable.”
(Emphasis added).1 Thus, the inquiry is not whether it was possible for a reasonable lay person
to have discovered the existence of the claim; the inquiry is whether it was probable that a
reasonable lay person would have discovered the existence of the claim.

       Plaintiff’s medical chart maintained by Dr. Mishra includes the results of his routine
blood tests. Beginning in 2007, lab reports filed within the chart consistently contained

1
  Other dictionaries provide consistent definitions. Merriam-Webster’s Collegiate Dictionary
(11th ed) defines “could” as “an alternative to can suggesting less force or certainty” (emphasis
in original) and “should” as “used in auxiliary function to express obligation.” Random House
Webster’s College Dictionary (2nd ed) defines “could” as “used to express conditional
possibility or ability” and “should” as “used to indicate duty, propriety, or expediency.”


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abnormal and worsening levels of two blood measures related to kidney function: creatinine2 and
eGFR.3

        While these test results are clearly relevant to the issue whether Dr. Mishra complied
with the standard of care, they are not relevant to when plaintiff should have discovered his
potential claim unless there is evidence that plaintiff was made aware of the repeated and
increasingly abnormal findings of kidney disease. Defendant offers no evidence that this was the
case. First, on this record it is undisputed that defendant’s office never provided plaintiff with
copies of his lab reports. Second, plaintiff testified that defendant never told him that he had
kidney disease or that he might develop kidney disease. Indeed, given defendant’s failure to
introduce contrary evidence, defendant has not even created a question of fact on the issue.4

        Defendant points out that in a 2008 office note, Dr. Mishra wrote down a diagnosis of
“chronic renal failure.” However, the note contains no reference to a discussion of this with the
patient, i.e. plaintiff, and plaintiff testified that no such discussion ever occurred. Specifically,
plaintiff testified as follows:

              Q. I’m looking at your records from Dr. Mishra’s office, December 22nd,
       2008, so this would have been a few days before Christmas at the end of 2008.
       Dr. Mishra had diagnosed you with chronic renal failure; do you remember that?

               A. No, he never told me that.

               Q. You don’t remember having any discussion with him about that then?

               A. No, not at all.

               Q. You had swelling in your legs at that time. Do you remember that?

               A. Yes. He said it was because of my weight problem.

2
  Creatinine is a waste product of muscle metabolism that is normally filtered out by the kidneys
and discharged in urine. Standard blood test panels include a measure of creatinine in the blood.
According to the record before us, normal blood levels of creatinine are in the range of 0.5 to 1.3.
If creatinine levels go above that range it suggests that the kidneys are not adequately filtering
creatinine which may be a sign of kidney failure. According to Dr. Mishra’s records, plaintiff’s
creatinine level in 2007 was 1.5. Over the next several years, plaintiff’s creatinine level,
according to Dr. Mishra’s chart, grew increasingly elevated until by the end of 2010 it was at
4.99.
3
 The lab measure known as eGFR refers to “estimated glomerular filtration rate” and should
normally be greater than 60. Beginning in 2007, plaintiff’s level fell below 60 and continued to
decrease over the next five years until it was measured at 12 in 2011.
4
 Even if there was a question of fact, it should be resolved by the jury, not by the trial court on a
motion for summary disposition. See Kincaid v Cardwell, 300 Mich App 513, 523; 834 NW2d
122 (2013).


                                                -3-
              Q. So you don’t remember any discussion December 2008 about having
       chronic renal failure?

               [objection omitted.]

               A. No.

              Q. When is the first time you recall having a discussion with Dr. Mishra
       about kidney failure?

               A. He never discussed it with me . . . .

Defendant has not submitted any evidence indicating that, contrary to plaintiff’s testimony, he
discussed this diagnosis with plaintiff. As noted, the office chart does not indicate that the
diagnosis was relayed or discussed with the patient and it is undisputed that plaintiff neither saw
or had copies of those records until after he retained an attorney, immediately following the
September 20, 2012 conversation with Dr. Tayeb5.
        In Solowy v Oakwood Hosp, 454 Mich 214, 221-222; 561 NW2d 843 (1997), our
Supreme Court held that what the claimant discovered or should have discovered is “a possible
cause of action.” This point was critical in Solowy because in that case the plaintiff did not
dispute that she knew her doctor might have committed malpractice. See id. at 225. Instead, she
argued that the six-month timeframe was not triggered until she had, in her own mind, confirmed
that this was the case. Id. at 218-219. The facts of Solowy merit description. In 1986, the
plaintiff had had a skin cancer on her ear. Id. at 216. The defendant excised it and, according to
the plaintiff, he told her in the same year that the cancer was “gone.” Id. at 216-217. Then in
1992, the plaintiff discovered a similar lesion on her ear at the same site, but she took no action
for some time because of the defendant’s assurance that the cancer was gone. Id. at 217-218.
Eventually she went to a new doctor who advised that the new lesion was either a recurrence of
the prior cancer or a benign lesion. Id. at 217. A biopsy showed that it was a recurrence and the
plaintiff claimed that a more invasive surgery was required due to the defendant’s incorrect
assurance to her that the cancer was gone. Id. at 217-218. The plaintiff filed suit less than six
months from the date of the biopsy, but more than six months from the date the second doctor
told her that the lesion might be a recurrence of her cancer. Id. at 218.

        The plaintiff argued that even though she knew that she had a possible cause of action
after being so advised, it was only after the biopsy that she knew or should have known that she
had an actual cause of action. Id. at 224-225. She argued that had the biopsy been benign she
would have learned that her possible cause of action was, in fact, not a cause of action. Id. The
Solowy Court concluded that the discovery date is when the plaintiff learns of a “possible cause
of action” rather than learning of a “certain” cause of action. Id. at 221-222. However, the
Solowy Court continued to apply the “should have” standard, stating:

5
  In addition, despite the fact that defendant obtained an order to conduct ex parte meetings with
plaintiff’s physicians, the record contains no testimony or affidavits from any of these physicians
that prior to the September 20, 2012 conversation with Dr. Tayeb, they advised plaintiff that his
kidney disease could or should have been recognized and treated years earlier by Dr. Mishra.


                                                -4-
       the discovery rule begins to run when, on the basis of objective facts, the plaintiff
       should have known of a possible cause of action. [Id. at 222.]

In Solowy, the time began to run when the plaintiff learned that there was a significant chance—
in Solowy it was 50/50—that her doctor had committed malpractice. She knew that if her
diagnosis was skin cancer that she had grounds to file suit because she had previously had skin
cancer at that location, it had been treated, and her doctor told her that it was “gone.” Id. at 217,
224.

         In the instant case, the record does not support the view that, when diagnosed with kidney
failure, plaintiff “should have known of a possible cause of action.” As far as he knew, he had
no previous history of kidney disease and did not know of the lab reports showing that his kidney
failure was the result of a slowly progressing condition rather than an acute event. In Solowy, the
plaintiff knew that her doctor might have committed malpractice as soon as the tumor grew back;
she was only waiting to learn whether she was in fact injured as a result of his actions. In this
case, the opposite is true; after diagnosis in January 2011, plaintiff knew he was sick, but lacked
the relevant data about his worsening lab reports and the medical knowledge to know that his
doctor might have committed malpractice. The critical difference between the plaintiff in this
case and the plaintiff in Solowy is that in Solowy the plaintiff neither required nor lacked special
knowledge about the nature of the disease, its treatment, or its natural history.6 She knew exactly
what her relevant medical history was at all times. She simply delayed pursuing her claim in
order to wait for final confirmation of what she already knew was very likely true. Moreover,
the Solowy plaintiff had visible symptoms that were clearly recognizable as a likely recurrence of
her skin cancer long before the ultimate diagnosis. Here, plaintiff’s first recognizable symptom,
i.e. urine retention, did not occur until January 2011 when it precipitated his hospitalization.

        “[T]he discovery rule period begins to run when, on the basis of objective facts, the
plaintiff should have known of a possible cause of action.” Id. at 222. An objective standard,
however, turns on what a reasonable, ordinary person would know, not what a reasonable
physician (or medical malpractice attorney) would know. Thus, the question is whether a
reasonable person, not a reasonable physician would or should have understood that the onset of
kidney failure meant that the person’s general practitioner had likely committed medical
malpractice by not diagnosing kidney disease.

       Indeed, defendant does not contend that a reasonable lay person understands the anatomy,
physiology, or pathophysiology of kidneys. One would be hard pressed to find a reasonable,
ordinary person, who is not a medical professional, who knows what creatinine is or what an
abnormal creatinine level means, in addition to knowing how kidneys fail, why they fail, and
how quickly they can fail.7


6
 “Natural history” is a medical term meaning the expected course of a disease absent treatment.
See Merriam-Webster’s Collegiate Dictionary (11th ed). For example, whether kidney failure
can occur suddenly or only over an extended period of time requires knowledge of the “natural
history” of kidney disease.
7
 Our dissenting colleague suggests that any reasonable person would know that kidney failure
must develop over a long period. She offers no grounds for such a conclusion. Moreover, her


                                                -5-
        Moreover, plaintiff did not visit Dr. Mishra specifically for kidney problems. He saw
him as a primary care provider for over 20 years. Unlike the plaintiff in Solowy, plaintiff never
had surgery or even any treatment for the relevant organ or condition. He had routine complete
blood counts and metabolic lab work done, as does virtually every patient who undergoes annual
physicals. There is no evidence that he ever saw the blood test reports that showed the normal
reference ranges, which would have revealed that his creatinine levels were high, or that he was
ever advised of the relationship between creatinine level and kidney disease. Defendant suggests
that because he once ordered a kidney ultrasound for plaintiff after an episode of edema and one
slightly elevated lab report in 2008, plaintiff should have realized upon diagnosis of kidney
failure that he had kidney disease back in 2008. However, the ultrasound was reported as
normal.8 Assuming that a reasonable, ordinary person would even recall a normal ultrasound
performed years earlier, there is no reason that such a person would consider a normal ultrasound
result as evidence that Dr. Mishra was at the time simultaneously committing malpractice in
some manner. Rather, the normal ultrasound rationally supported that Dr. Mishra had made no
errors at all. The mere performance of a non-invasive, commonly-administered kidney imaging
study yielding a normal result, does not constitute an “objective fact” from which plaintiff should
have surmised that he had a possible cause of action when later diagnosed with kidney failure.
See Solowy, 454 Mich at 222.

        It was possible for plaintiff to have discovered the existence of a possible claim shortly
after presenting to the hospital and being told that he had kidney failure. To have done so,
however, he would have had to have undertaken an extensive investigation to discover more
information than he had. Presumably, plaintiff could (1) studied the various causes and speeds


assertion is inconsistent with medical knowledge. Kidney failure can occur very quickly and has
several possible causes such as reduction in blood flow, allergic reaction, infection, adverse
reaction to medication, dehydration, stones, cancer, nerve damage and others.                 See
http://www.mayoclinic.org/diseases-conditions/kidney-failure/basics/causes/con-20024029
(accessed April 28, 2016). And contrary to the dissent’s claim, we do not cite this medical text
to justify plaintiff’s belief; we do so to refute the dissent’s claim that plaintiff’s belief was
inconsistent with science and therefore unreasonable.
8
  The dissent suggests that plaintiff was “consistent[ly]” told by Dr. Mishra that his blood tests
were being done specifically due to concern about his kidneys and that after each test, Dr. Mishra
assured plaintiff that his kidneys were fine. However, this suggestion is not consistent with the
record. As already noted, plaintiff testified that he was told only once, in late 2008, that his
“kidney number” on a single blood test was a little high and that he was correctly advised that an
ultrasound done to follow up was normal. There is no testimony that Dr. Mishra thereafter
discussed plaintiff’s kidney health with him except in notifying him that his annual blood tests,
which included many non-kidney tests, were normal. The dissent’s characterization of these
communications as revealing to plaintiff that he had “abnormal kidney levels (i.e. plural)” is
inaccurate. There is a substantial and striking difference between a single conversation three
years prior to diagnosis and a subject of repeated discussion. Thus, contrary to the dissent’s
argument, the 2012 diagnosis was not “plainly contradictory to everything Dr. Mishra had said
up until that point.” Dr. Mishra likely told plaintiff many things between 2008 and 2012.
Regarding plaintiff’s kidneys, there were but two conversations: one in 2008 referencing a
mildly elevated test, and the accurate report of a normal kidney ultrasound in early 2009.


                                                -6-
of progression of kidney disease, (2) requested copies of his previous years’ blood test reports,
and (3) considered whether there were signs of progressive kidney disease in those reports.
However, there is no basis in statute, common law, or common sense to impute such a duty to
people who become ill.

        Defendant seems to suggest that the diagnosis of any serious illness in and of itself
suffices to place on a reasonable person the burden of discovering a potential claim against a
primary care physician if at any time in the past the physician tested an organ involved in a later
diagnosis and reported normal results.9 Certainly any new diagnosis or worsened diagnosis or
worsened prognosis is an “objective fact,” but it is a substantial leap to conclude that this fact
alone should lead any reasonable person to know of a possible cause of action. We agree that
anytime someone receives a new diagnosis, worsened diagnosis, or worsened prognosis, that
individual could consider whether the disease could or should have been discovered earlier.
Moreover, diligent medical research and a review of the doctor’s notes may reveal that an earlier
diagnosis should have been made. That, however, is not the standard. We must determine what
the plaintiff “should have discovered” on the basis of what he knew or was told, not on the basis
of what his doctors knew or what can be found in specialized medical literature. Thus, the
elevated levels of creatinine in plaintiff’s blood tests during prior years is of no moment given
the absence of any evidence that plaintiff ever saw those reports or that he knew what the word
“creatinine” meant, let alone the pathophysiology of kidney failure, its measures, its causes, its
natural history, or its treatment.10

        To hold as defendant suggests would not merely be inconsistent with the text of the
statute. 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. Had the legislature intended such a result it would have use the phrase
“could have discovered,” not “should have discovered.”

         On the present facts, defendant has demonstrated that before the September 20, 2012
meeting with Dr. Tayeb, plaintiff could have discovered that he had a possible cause of action for
malpractice. However, the statute triggers the six-month discovery period only when plaintiff
should have discovered that he had a possible cause of action. Given the plain language of the
statute, the trial court erred in granting defendant’s motion for summary disposition. 11


9
  The discovery rule does not incorporate the logical fallacy of post hoc, ergo propter hoc (after
this, therefore because of this).
10
   Although plaintiff’s kidney disease was diagnosed after he had undergone tests for kidney
disease (among many other tests), it simply does not follow that the tests were related to his
disease. More information was required to make that link, and that information was supplied by
Dr. Tayeb.
11
  Plaintiff also challenges another ruling which we agree was erroneous. However, in light of
our ruling the issue appears to be moot. Before being deposed plaintiff provided an affidavit to
the trial court, averring, as he later did in his deposition, that he had spoken with Dr. Tayeb on
September 20, 2012, and that, on that date, Dr. Tayeb informed him that had he been referred to
nephrologist earlier, he may have delayed or avoided his current state of renal failure and


                                                -7-
       Reversed and remanded for further proceedings. We do not retain jurisdiction.



                                                              /s/ Douglas B. Shapiro
                                                              /s/ Elizabeth L. Gleicher




dialysis. More specifically, plaintiff averred that Dr. Tayeb stated that defendant’s failure to
refer plaintiff to a nephrologist was inappropriate and was a serious contributor to plaintiff’s
medical condition. Plaintiff presented this affidavit in his brief addressing the timeliness of his
claim. The trial court refused to consider the affidavit on the grounds that it was inadmissible
hearsay. This ruling was erroneous as matter of law given that the affidavit was not offered for
the truth of the matter asserted by the declarant. See People v Eggleston, 148 Mich App 494,
502; 384 NW2d 811 (1986) (holding that statements were not hearsay because they were not
introduced to prove the truth of the matter asserted). Plaintiff did not offer the evidence to prove
that defendant was negligent and whether Dr. Tayeb’s alleged statements were accurate is not
relevant to the present issue. Plaintiff relied on Dr. Tayeb’s alleged statement only to
demonstrate how and why he became aware of his possible malpractice claim, not that Dr.
Mishra was negligent or that his negligence was a proximate cause of any damages. The trial
court, therefore, erred in ruling that the affidavit contained inadmissible hearsay for this purpose.
See id.


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