A person shall not bring or maintain an action to recover damages for injuries to person or property unless, after the claim first accrued to the plaintiff or to someone through whom the plaintiff claims, the action is commenced within two years for an action charging malpractice.
A claim based on the malpractice of a person who is, or holds himself or herself out to be, a member of a state licensed profession accrues at the time that person discontinues serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.
An action involving a claim based on malpractice may be commenced at any time within the applicable period prescribed in sections 5805 or 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. The burden of proving that the plaintiff 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 shall be on the plaintiff. A malpractice action which is not commenced within the time prescribed by this subsection is barred.
For purposes of this act, a claim based on the medical malpractice of a person or entity who is, or who holds himself or herself out to be, a licensed health care professional, licensed health facility or agency, or an employee or agent of a licensed health facility or agency who is engaging in or otherwise assisting in medical care and treatment, whether or not the licensed health care professional, licensed health care facility or agency, or their employee or agent is engaged in the practice of the health profession in a sole proprietorship, partnership, professional corporation, or other business entity, accrues at the time of the act or omission that is the basis for the medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim.
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 care 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.
An action involving a claim based on medical malpractice under circumstances described in subsection (2)A. or B. may be commenced at any time within the applicable period prescribed in section 5805 or section 5851 to 5856, or within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later. 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.
Stapleton v. City of Wyandotte, 177 Mich. App. 339, 441 N.W.2d 90 (1989). (The plaintiff filed a malpractice action two years and one day after she was discharged from the defendant hospital. The two-year statute of limitations was not extended by the advice of an unidentified physician to schedule another appointment in two weeks when the plaintiff did not go to the defendants for the checkup. The day of the discharge was not counted, but the last day of the two year period was counted. The plaintiff's action was barred where she discovered the improper treatment more than six months before filing her claim.)
Ross v. Roth, 131 Mich. App. 57, 345 N.W.2d 602 (1983). (In an action for negligence in performing a hysterectomy, the plaintiff's affidavit as to her visits to the doctor's office for symptoms that the defendant told her were caused by the surgery raised a question for the jury as to whether such visits constituted a termination of treatment for the purpose of the statute of limitations, or whether the treatment ended earlier, as the doctor contended, when he released her for work.)
Berrios v. Miles, Inc., 574 N.W.2d 677 (Mich. Ct. App. 1997). (The court affirmed the dismissal as time-barred of a complaint brought by the plaintiff, a hemophiliac, against the defendant, a manufacturer or blood factor concentrate product, after the plaintiff was diagnosed with AIDS. The court held that the action accrued for limitations purposes when the plaintiff was informed that he had tested positive for HIV, even though he did not begin to suffer symptoms associated with AIDS until seven years later. Even if the plaintiff's damages would not have been precisely known at that time, the court said, the plaintiff testified that his hematologist had told him that everyone who was HIV-positive would develop AIDS, that he felt social restrictions as a result of the infection, and that he had discussed the possibility of suing the defendant four years before developing AIDS.)
Hardwick v. Reddy, 184 Mich. App. 529, 459 N.W.2d 13 (1990). (A psychiatrist prescribed Desyrel to a patient for treatment of his periodic impotence in October 1981. The plaintiff alleged it caused chronic and permanent impotence. The plaintiff contacted an attorney in October 1986, but claimed that he learned of the malpractice in April 1987. The defendant appealed the court's failure to grant summary judgment based on the statute of limitations. On appeal, the lower court was affirmed because the plaintiff's contacting the attorney did not necessarily mean that he was aware or should have been aware of any malpractice.)
Moss v. Pacquing, 183 Mich. App. 574, 455 N.W.2d 339 (1990), cert. denied, 435 Mich. 1204, 465 N.W.2d 916 (1990). (A female brought a products liability and medical malpractice action dealing with the use of a Cu-7 intrauterine device (IUD). Her husband brought a loss of consortium claim. The plaintiffs alleged the IUD caused permanent sterility. Summary judgment was granted on all claims because of the statute of limitations. On appeal, the court reversed the summary judgment and remanded for the jury to decide when the plaintiff discovered or should have discovered the products liability and medical malpractice claims. The husband's claim was derivative of the wife's claim, and the court held it was not automatically barred by the fact he married her subsequent to the tortious injury. The husband's claim would be barred only if he knew or reasonably should have known of the claim at the time of the marriage.)
Griffith v. Brant, 177 Mich. App. 583, 442 N.W.2d 652 (1989). (Despite the fact that the plaintiff had continued pain after her foot surgery, she waited more than two years after the surgery to file a malpractice action. The Court of Appeals reversed the trial court's denial of the defendant's motions for summary judgment, holding that the plaintiff could not rely on the six-month discovery rule because she should have known that there was a problem when she continued to experience pain after the surgery.)
McGuire v. Bradley, 137 Mich. App. 287, 358 N.W.2d 4 (1984). (The statute of limitations bars an action for misdiagnosis of a fracture brought more than two years after the plaintiff learned of the correct diagnosis from a specialist, notwithstanding the contention that the plaintiff did not learn until later of the arthritic consequences of the delay in treatment occasioned by the original misdiagnosis.)
If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations.
Tonegatto v. Budak, 112 Mich. App. 575, 316 N.W.2d 262 (1982). (Fraudulent concealment must be alleged in the complaint if it is to toll the running of the statute. The hospital's failure to inform the patient of the nature and risks of the surgery does not constitute fraudulent concealment so as to toll the statute. Fraudulent concealment refers to the deception of the plaintiff as to the existence of a cause of action.)
Sheldon v. Sisters of Mercy Health Corp., 102 Mich. App. 91, 300 N.W.2d 746 (1980). (In an action for negligence in treating the fracture of an ankle, the mere fact that the physician told the plaintiff that his leg was healing is not fraudulent concealment, where the physician did nothing to mislead or hinder the patient's acquisition of information which would disclose that he had a right of action.)
Ellis v. Lauter, 93 Mich. App. 584, 287 N.W.2d 192 (1979). (An action against a physician for negligently severing a nerve (the superficial right nerve of the neck) was held not to be barred by the lapse of the statutory period in view of the plaintiff's complaints to the doctor of numbness and the doctor's answer that he had not done anything wrong in the surgery. Such circumstances present a factual question precluding an accelerated judgment.)