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
MYLES ROBERTSON, UNPUBLISHED
May 26, 2022
Plaintiff-Appellant,
v No. 356923
Oakland Circuit Court
WILLIAM BEAUMONT HOSPITAL, doing LC No. 2019-174111-NH
business as BEAUMONT HOSPITAL ROYAL
OAK, BEAUMONT HEALTH, doing business as
BEAUMONT BOTSFORD OAKWOOD, INC., and
KIMBERLY A. LES, M.D.,
Defendants-Appellees.
Before: BORRELLO, P.J., and SHAPIRO and HOOD, JJ.
PER CURIAM.
In this medical malpractice case, plaintiff appeals as of right the trial court’s order granting
summary disposition to defendants under MCR 2.116(C)(7) (statute of limitations) on the ground
that plaintiff failed to bring his action within the six-month discovery period set forth in MCL
600.5838a(2). We affirm.
I. BACKGROUND
In May 2013, plaintiff, then 19 years old, presented to Dr. Kimberly Les, M.D., with
complaints of painful masses in his right hip and left shoulder. A biopsy showed chondrosarcoma,
a form of bone cancer, in plaintiff’s pelvis and shoulder. The shoulder tumor was removed with a
resection obtaining “negative margins,” and there were no recurrences of the shoulder cancer. Dr.
Les resected the pelvis tumor on July 17, 2013. The pathology report showed “positive margins,”
meaning that the tumor was not completely excised. After this surgery plaintiff underwent
monitoring of his right hip, including monthly x-rays. Beginning in January 2015, there were
multiple recurrences and resections in plaintiff’s right hip.
Plaintiff asserts that Dr. Les violated the relevant standard of care in several respects,
including: (1) that she failed to adequately review and appreciate the pathology report showing
that the July 2013 surgery did not obtain negative margins of the pelvic tumor; and (2) she failed
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to fully inform plaintiff that the surgery did not obtain negative margins and to take the appropriate
action such as reoperation.
There are no medical records documenting any discussion between Dr. Les and plaintiff
regarding the results of the July 2013 surgery. And their testimonies regarding those conversations
differ substantially. Plaintiff testified that Dr. Les told him that the July 2013 procedure “was
successful. That she had removed the cancer.” Dr. Les, however, testified that plaintiff was aware
that this procedure did not obtain a “wide margin.” Dr. Les also testified that after receiving the
pathology report showing positive margins, she again recommended a hemipelvectomy surgery to
plaintiff. An external hemipelvectomy involves removal of the pelvis and, in this case, amputation
of plaintiff’s right leg. Dr. Les testified that this procedure was necessary to “provide a true wide
margin” of plaintiff’s pelvic tumor and that “from the start” plaintiff “adamantly refused it.”
Plaintiff’s deposition testimony indicates that Dr. Les presented amputation of his leg as a surgical
option before the July 2013 surgery and that he declined it. He testified, “I made the decision I
didn’t want to try the amputation.”
In January 2015, plaintiff reported a mass on his right hip, which was confirmed to be a
recurrence of his chondrosarcoma. Dr. Les testified that she again recommended a
hemipelvectomy but plaintiff declined and so she performed a surgical resection of the right hip
mass instead. An MRI in May 2015 indicated a second recurrence of chondrosarcoma in plaintiff’s
right hip. Another resection was performed and the tumor was confirmed to be chondrosarcoma.
Dr. Les performed five more resections over the course of 2016 and 2017 to treat plaintiff for
recurrences of cancer in his right hip. Dr. Les characterized these resections as “debulkings,” and
indicated that they were done for palliative rather than curative purposes. Dr. Les testified that she
continued to discuss with plaintiff that his tumor was going to keep recurring and that his best
chance to lessen the chance of recurrence was a hemipelvectomy.
On May 11, 2018, plaintiff met with Dr. Geoffrey Siegel, M.D., at the University of
Michigan for a second opinion on Dr. Les’s recommendation of a hemipelvectomy. Dr. Siegel
then consulted with the University of Michigan Tumor Board, who initially concurred with that
recommendation. However, after new MRIs were obtained showing metastatic spread of cancer,
the Board recommended against proceeding with the hemipelvectomy. In a June 7, 2018 phone
call, Dr. Siegel informed plaintiff and his mother that he was now recommending against the
procedure.
Plaintiff sent defendants a notice of intent, dated November 20, 2018, to file a medical
malpractice action. The action itself was filed in May 2019.
After some discovery, defendants moved for summary disposition under MCR
2.116(C)(7). They argued that the action was untimely under the six-month discovery rule
contained in MCL 600.5838a(2) because plaintiff discovered or should have discovered that he
had “a possible cause of action,” Solowy v Oakwood Hosp Corp, 454 Mich 214, 221; 561 NW2d
843 (1997), against defendants when his cancered recurred in 2015. Alternatively, defendants
argued that even if plaintiff did not discover his possible cause of action until his May 11, 2018
meeting with Dr. Siegel, he still failed to commence his action within six months of that date. In
response, plaintiff and his mother attested in affidavits that they did not become aware until a June
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2018 discussion with Dr. Siegel that Dr. Les had been “cutting around the tumor” and that a
different and more involved operation should have been performed at an earlier time.
The trial court ordered that the parties complete the deposition of Dr. Siegel before it would
rule on the motion for summary disposition. In a supplemental response after the deposition,
plaintiff argued for the first time that the fraudulent-concealment exception contained in MCL
600.5838a(2) applied in this case. Specifically, plaintiff claimed that Dr. Les fraudulently
concealed that negative margins were not obtained in the July 2013 surgery. The trial court issued
an opinion and order in December 2020 granting summary disposition to defendants. The court
determined that plaintiff’s claim was time barred because he should have known that he had a
possible cause of action against Dr. Les when his cancer first recurred in January 2015. The court
declined to address the fraudulent-concealment argument on the ground that plaintiff failed to
plead that claim. The court denied plaintiff’s motion for reconsideration, and this appealed
followed.
II. ANALYSIS
A. SIX-MONTH DISCOVERY PERIOD
Plaintiff first argues that the trial court erred by granting summary disposition to defendants
because there were material questions of fact as to when the six-month discovery period
commenced. We disagree.1
There is no dispute in this case that plaintiff did not comply with the two-year statute of
limitations for medical malpractice actions. See MCL 600.5805(8); Haksluoto v Mt Clemens
1
We review de novo a trial court’s decision to grant summary disposition. Dell v Citizens Ins Co
of America, 312 Mich App 734, 739; 880 NW2d 280 (2015). “Subrule (C)(7) permits summary
disposition when the claim is barred by an applicable statute of limitations.” Nuculovic v Hill, 287
Mich App 58, 61; 783 NW2d 124 (2010). In RDM Holdings, Ltd v Continental Plastics Co, 281
Mich App 678, 687; 762 NW2d 529 (2008), this Court summarized the standards for analyzing a
motion brought under that subrule:
Under MCR 2.116(C)(7) . . . , this Court must consider not only the pleadings, but
also any affidavits, depositions, admissions, or other documentary evidence filed
or submitted by the parties. The contents of the complaint must be accepted as true
unless contradicted by the documentary evidence. This Court must consider the
documentary evidence in a light most favorable to the nonmoving party. If there is
no factual dispute, whether a plaintiff's claim is barred under a principle set forth
in MCR 2.116(C)(7) is a question of law for the court to decide. If a factual dispute
exists, however, summary disposition is not appropriate. [Citations omitted.]
See also Solowy, 454 Mich at 230 (“[I]n the absence of disputed facts, the question whether a
plaintiff’s cause of action is barred by the statute of limitations is a question of law to be determined
by the trial judge.”) (quotation marks and citation omitted).
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Regoinal Med Ctr, 500 Mich 304, 310; 901 NW2d 577 (2017). But a medical malpractice action
brought beyond the two-year limitations period is nonetheless timely if it was commenced “within
6 months after the plaintiff discovers or should have discovered the existence of the claim,
whichever is later.” MCL 600.5838a(2). The parties agree that the question before this Court is
whether plaintiff should have discovered his cause of action before May 20, 2018, i.e., six months
before he sent the notice of intent dated November 20, 2018.2 If so, his claim is untimely under
MCL 600.5838a(2).
In Solowy, 454 Mich 214, the Supreme Court adopted the “possible cause of action”
standard to determine when a plaintiff should have discovered a claim for purposes of the six-
month discovery rule. Under this standard, “[t]he six-month discovery rule period begins to run
in medical malpractice cases when the plaintiff, on the basis of objective facts, is aware of a
possible cause of action,” which “occurs when the plaintiff is aware of an injury and a possible
causal link between the injury and an act or omission of the physician.” Id. at 232. “Once a
plaintiff is aware of an injury and its possible cause, the plaintiff is equipped with the necessary
knowledge to preserve and diligently pursue his claim.” Id. at 223.
After the trial court granted summary disposition in this case, the Supreme Court decided
Bowman v St John Hosp & Med Ctr, ___ Mich ___; ___ NW2d ___ (2021) (Docket Nos. 160291,
160292), which clarified the role of diligence in determining when the sixth-month discovery
period begins to run. The Court explained that when “the facts compel an inference of an injury’s
possible cause, diligence has little role to play in evaluating whether a plaintiff should have
discovered a possible cause of action.” Id. at __; slip op at 15. But “when the facts don’t compel
an inference of a possible cause but do arouse suspicion, we require diligence.” Id. To determine
whether the facts should have aroused suspicion, courts apply “a flexible, fact-specific inquiry,
fueled by common sense and reason.” Id. at ___; slip op at 16 (quotation marks and citation
omitted). “[F]acts arouse suspicion when they make a plaintiff wonder whether the defendant is
responsible.” Id.
In granting defendants’ motion for summary disposition, the trial court determined that this
case was analogous to Solowy, 454 Mich 214. In that case, Ms. Solowy had a cancerous lesion
removed from her left ear, and one of her treating doctors “assured her during the course of her
treatment that the cancer was ‘gone’ and that there was no chance of it recurring.” Id. at 216-217.
About five years later, she “discovered a similar lesion on her left ear at approximately the same
site” and experienced nearly identical symptoms that she experienced with the prior lesion. Id.
at 217. Two months later, on March 27, 1992, she visited a dermatologist who advised her that
the lesion was either cancerous or benign. Id. On April 9, the dermatologist informed Ms. Solowy
that the biopsy showed that the lesion was a recurrence of cancer. Id.
The Supreme Court held that the six-month discovery period commenced on March 27,
rather than April 9, which rendered Ms. Solowy’s medical malpractice action untimely. Id. at 233.
The Court reasoned that on March 27 “the plaintiff knew of an injury, i.e., the progression of the
lesion on her ear, and its possible cause, i.e., the failure of [her doctors] to inform her that the
2
The filing of the notice of intent tolls the limitations period for medical malpractice actions.
Haksluoto, 500 Mich at 307.
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cancer could recur and that she should seek follow-up treatment.” Id. at 224. In Bowman, the
Supreme Court reaffirmed that holding, explaining Ms. Solowy learned information on March 27
that contradicted what she was told in 1986, “i.e., that ‘there was no chance of [the cancer]
recurring,’ and so Ms. Solowy had enough information at her disposal to know that her former
doctors might have committed malpractice.” Bowman, ___ Mich at ___; slip op at 13. Stated
differently, Ms. Solowy “could have inferred the possibility of medical malpractice when the
dermatologist’s statements directly contradicted those she’d received from her former doctors.”
Id. at ___; slip op at 15.
In this case, plaintiff was aware of an “injury” when he learned in January 2015, and
multiple times thereafter, that his cancer had recurred. The injury in this case is much clearer than
Solowy, where the Court held that Ms. Solowy suffered an injury before it was even confirmed
that her lesion was cancerous. In contrast, plaintiff here knew of an actual injury, as opposed to
possible injury, in January 2015 and on all the subsequent dates that he was diagnosed with a
recurrence of cancer.
The next question is whether plaintiff should have inferred medical malpractice from this
injury. On this aspect, this case is substantially similar to Solowy. Plaintiff testified that Dr. Les
told him “[t]hat she had removed the cancer” in the July 2013 surgery, and that he “should not get
cancer again.” As in Soloway, the subsequent recurrence of cancer in January 2015 directly
contradicted Dr. Les’s alleged statements. Thus, plaintiff should have inferred from the recurrence
of cancer that Dr. Les might have committed malpractice. More specifically, the recurrence less
than a year-and-a-half after the initial surgery compelled the inference that Dr. Les failed to
completely resect the tumor as she had claimed. The facts of this case are even stronger for the
defense than Solowy because defendants do not argue that plaintiff should have discovered a cause
of action before it was confirmed that his cancer had recurred in January 2015.3
Because the recurrence directly contradicted what Dr. Les allegedly told plaintiff following
the July 2013 surgery, he should have inferred a possible causal link between the injury and a
negligent act or omission by Dr. Les. The trial court correctly analogized this case to Solowy,
which according to Bowman is the type of case where diligence plays a minimal role because the
3
Solowy observed that flexibility to the “possible cause of action” standard is warranted in
“delayed diagnosis” cases, but nonetheless concluded that, given Ms. Solowy’s prior experience
with cancer, “her observations of the discomfort and of the appearance and condition of her ear
should have aroused some suspicion in her mind that the lesion might be cancer.” Solowy, 454
Mich at 227-228. Here, defendants rely on plaintiff’s reoccurring symptoms and family history of
bone cancer to argue that he should have discovered a possible action. However, this is a not a
“delayed diagnosis” case like Solowy, where the question is essentially whether the plaintiff should
have been aware of or anticipated his or her diagnosis before it was confirmed. Rather, it is
inconsequential if the six-month discovery period commenced when plaintiff’s symptoms first
reappeared or when the biopsy confirmed that his right hip mass was a recurrence of cancer.
Accordingly, we do not view plaintiff’s prior experience with bone cancer as being relevant in this
case.
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facts compel an inference of the injury’s possible cause. See Bowman, ___ Mich at ___; slip op
at 15. Plaintiff argues that this Court should reverse the trial court on the basis of Bowman, which
reiterated that a plaintiff may rely on a doctor’s medical advice and is not required to second-guess
a doctor’s decisions and expertise. See id. at ___; slip op at 16-17, 21. From this, plaintiff argues
that he was entitled to accept Dr. Les’s assessment that the cancer was removed by the July 2013
surgery until he learned contradicting information from Dr. Siegel in 2018. But although a plaintiff
may rely on their doctor’s advice, Bowman was clear that there comes a point where the facts
arouse suspicion and “trigger [the] duty to investigate . . . .” Id. at ___; slip op at 16. And here,
plaintiff received repeated contradicting information from his recurrences that occurred well
before he met with Dr. Siegel. Thus, we conclude that no reasonable juror could find that there
was not a basis to become suspicious or that plaintiff thereafter exercised reasonable diligence to
determine if he had a cause of action against Dr. Les.4
Plaintiff points out that there is a factual dispute as to what Dr. Les told plaintiff following
the July 2013 surgery. But for purposes of a subrule (C)(7) motion, plaintiff’s version of events is
accepted as true. See RDM Holdings, Ltd v Continental Plastics Co, 281 Mich App 678, 687; 762
NW2d 529 (2008). Accepting plaintiff’s testimony regarding Dr. Les’s statements as true, and
considering the undisputed timeline of the recurrences, there was no material factual dispute
precluding the trial court from deciding as a matter of law when the discovery period commenced.
See Solowy, 454 Mich at 230-231 (holding that the trial court correctly decided the commencement
of the discovery period as a matter of law when “the facts before the trial court relevant to the
resolution of the discovery rule issue were undisputed.”) (emphasis added).
In sum, plaintiff should have discovered a possible cause of action in January 2015, or at
least well before his meeting with Dr. Siegel, because the recurrence of cancer was directly
inconsistent with Dr. Les’s alleged statements following the July 2013 surgery that the cancer had
been removed and should not return. Alternatively, the recurrences were sufficient to arouse
plaintiff’s suspicion and he failed to exercise reasonable diligence to discover a possible cause of
action. Accordingly, the trial court correctly granted defendant’s motion for summary disposition
as it pertained to six-month discovery rule.5
4
The facts of Bowman are also distinguishable from the instant case. In Bowman, the Court
declined to hold on the limited record before it that the plaintiff should have known that a 2013
mammogram was misread on the basis of her cancer diagnosis in 2015 because doing so would
have required imputing medical knowledge to the plaintiff, i.e., that a benign breast lump in 2013
could not reconciled with a malignant breast lump in 2015. See Bowman, ___ Mich at ___; slip
op at 19. In this case and in Soloway, however, the recurrence of cancer directly contracted the
doctor’s prior statements that the cancer had been removed and would not return. Medical
knowledge is not required to infer a possible cause action under those circumstances.
5
Because we agree with the trial court that the six-month discovery period began in January 2015,
we need not address the parties’ arguments regarding the alternative discovery date arising from
Dr. Siegel’s alleged statements to plaintiff in 2018.
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B. FRAUDULENT CONCEALMENT
Plaintiff also argues that the trial court should have allowed him the opportunity to amend
the complaint include a claim for fraudulent concealment. We disagree because any such
amendment would be futile.6
MCL 600.5838a(2)(a) provides that the “period of limitations set forth in subsection (3)”
apply “[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 of the health facility against whom
the claim is made . . . .” For this provision to apply, “the plaintiff must plead in the complaint the
acts or misrepresentations that comprised the fraudulent concealment,” and “must prove that the
defendant committed affirmative acts or misrepresentations that were designed to prevent
subsequent discovery.” Sills v Oakland Gen Hosp, 220 Mich App 303, 310; 559 NW2d 348
(1996).
On appeal, plaintiff requests the opportunity to amend the complaint to include a
fraudulent-concealment claim but does not address the substance or merits of that claim. Before
the trial court, plaintiff argued that Dr. Les fraudulently concealed the fact that negative margins
were not obtained in the original surgery and continuously thereafter. After the trial court rejected
this claim on the basis that plaintiff failed to plead it, plaintiff argued in his motion for
reconsideration that he had pleaded facts constituting fraudulent concealment, pointing to the
allegation in the complaint that Dr. Les failed to provide full and informed consent to plaintiff and
his family regarding her failure to obtain negative margins.
To maintain a claim of fraudulent concealment, plaintiff must allege that Dr. Les made a
misrepresentation that was designed to prevent discovery of the medical malpractice claim. But
the factual allegations in the complaint do not amount to a claim that Dr. Les intentionally
concealed the results of the July 2013 surgery from plaintiff and his family. To the contrary, the
complaint alleges that Dr. Les was negligent by failing “to fully appreciate the surgical pathology
report results . . . and inform Mr. Robertson and his family that negative and/or clear margins had
not been obtained.” In other words, the complaint does not allege that Dr. Les knew she did not
obtain negative margins and then intentionally misrepresented to plaintiff that she had. Rather,
the complaint alleges that Dr. Les failed to realize that she did not obtain negative margins. Thus,
while plaintiff tries to bootstrap a fraudulent-concealment claim to the underlying medical
malpractice claim, the latter alleges only negligence, not fraud.
This case is somewhat similar to Sills, where the plaintiff alleged that her doctor failed to
warn her of the risks of steroids and misdiagnosed her condition. Sills, 220 Mich App at 306. The
plaintiff also alleged fraudulent concealment on these grounds, i.e., “that defendants prevented her
from discovering the existence of her claim by failing to inform her of the risk of steroids” and
6
We review a trial court’s ruling regarding a motion to amend for an abuse of discretion.
Wolfenbarger v Wright, 336 Mich App 1, 14; 969 NW2d 518 (2021). “A court abuses its discretion
when it selects an outcome that falls outside the range of reasonable and principled outcomes.” Id.
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misrepresented her condition. Id. at 309. This Court concluded that these allegations did not show
fraudulent concealment:
In her complaint, plaintiff did not claim that defendants affirmatively acted
or made misrepresentations to prevent her from discovering the alleged
malpractice. Although plaintiff claimed that defendants failed to inform her of the
risks of steroids, that allegation was part of her general claim of malpractice, not
a claim of fraud. While [the doctor] may have misdiagnosed plaintiff’s condition,
plaintiff did not show that he acted fraudulently to conceal her potential cause of
action. A misdiagnosis is not an affirmative act to conceal a claim. Plaintiff has
not sufficiently asserted that defendants committed fraudulent conduct so as to toll
the statute of limitation. [Id. at 310 (emphasis added.]
Similar to Sills, plaintiff is merely repeating his medical malpractice allegations in an
attempt to show fraudulent concealment. But those allegations do not claim that Dr. Les made
affirmative acts or representations designed to prevent plaintiff from discovering the alleged
malpractice. A litigant may engage in alternative pleading, but here plaintiff has not expressly
pleaded or argued that Dr. Les intentionally misrepresented the pathology report of the July 2013
surgery. In the absence of such a claim, plaintiff’s fraudulent-concealment claim is legally
insufficient on its face and therefore amendment of the complaint would be futile. See Hakari v
Ski Brule, Inc, 230 Mich App 352, 355; 584 NW2d 345 (1998) (“An amendment is futile where,
ignoring the substantive merits of the claim, it is legally insufficient on its face.”) (quotation marks
and citation omitted).
Affirmed.
/s/ Stephen L. Borrello
/s/ Douglas B. Shapiro
/s/ Noah P. Hood
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