Whitney v. Gallagher

R. B. Burns, J.

Plaintiff appeals from an order of the Wayne County Circuit Court granting an accelerated judgment based upon the running of the statute of limitations for malpractice. We reverse.

In April, 1969, plaintiff was admitted into defendant Wyandotte General Hospital to test for a possible kidney disorder. On April 25, 1969, defendant Dr. Gallagher attempted an arteriogram, a procedure which enables the investigation of the kidneys without surgery by the insertion of a catheter into the arteries. During the course of the arteriogram, the catheter broke necessitating an immediate operation to retrieve the broken fragment. Although the operation was successful, plaintiff claims that he continues to suffer many physical difficulties because of the incident.

On April 25, 1971, plaintiff filed suit against defendants Gallagher and Wyandotte General Hospital, alleging negligent performance of the arteriogram. In April, 1972, plaintiff amended his complaint to include the Cordis Corporation, manufacturers of the catheter, on the ground of liability for a defective product.

The suit proceeded through preliminary steps until January 15, 1974, when Dr. Gallagher revealed upon deposition that the probable cause of the catheter’s breakage was improper storage prior to the operation. The catheter had been stored under the control of the hospital’s radiology department, operated exclusively by Harris-Birkhill & Associates, concessioners, by their employee, radiologist Dr. Richard Cooper. Dr. Gallagher stated that the abnormal brittleness of the subject *49catheter prompted his post-operative inquiry of Dr. Cooper, who informed him that the implement had been stored in a sterilizing solution. This was contrary to the manufacturer’s express recommendation that catheters remain in their sealed containers until they are used once only and then thrown away. This information came as a complete surprise to plaintiff.

Plaintiff moved to join Dr. Cooper and HarrisBirkhill & Associates as additional defendants, and filed an amended complaint including them on May 20, 1974. The circuit judge granted the motion of these latter defendants for accelerated judgment based upon the running of the statute of limitations, and plaintiff appeals.

MCLA 600.5805(3); MSA 27A.5805(3), states that "The period of limitations is 2 years for actions charging malpractice.”

In Dyke v Richard, 390 Mich 739, 747; 213 NW2d 185, 188 (1973), the Supreme Court said:

"Accordingly we hold that an action based on malpractice by a state licensed person must be brought within two years of the time when such person discontinues treating or otherwise serving the plaintiff, or within two years of the time when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the asserted malpractice, whichever is later.”

This language is straightforward and unequivocal. Our responsibility is to rely thereupon in determining the date on which the statute commenced to run. The circuit judge accepted defendants’ argument that the statute ran from the date on which the plaintiff knew that the catheter had been broken in his body. We disagree.

The circuit judge has implicitly accepted defend*50ants’ argument that the Dyke Court actually intended to employ the word "injury” for the word "malpractice” in prescribing the discovery phase of the test. Defendants contend that the cases applying the discovery rule key the triggering of the statute of limitations to discovery of the injury, and cite Winfrey v Farhat, 382 Mich 380; 170 NW2d 34 (1969), and Cates v Frederick W Bald Estate, 54 Mich App 717; 221 NW2d 474 (1974), in support of this contention. Even cursory review of the facts of these cases reveals this assertion wrong. More significantly, we are convinced that the Supreme Court, had it wished to do so, could have as easily used the word "injury” as the word "malpractice”. In fact, the Court specifically noticed that the last treatment rule was itself "a liberalizing of the general rule that the cause of action accrues at the time of injury”. Dyke v Richard, supra, 747. They then chose to "liberalize” further by reconciling the last treatment rule with the less restrictive discovery rule. In our opinion this is a good rule.

Dr. Gallagher made inquiries right after the accident and discovered that the catheter had been improperly stored by Harris-Birkhill & Associates and Dr. Cooper.

Did Dr. Gallagher go to see the plaintiff, who was his patient and with whom he has a confidential relationship, and say: "John, I have discovered what went wrong with the test. The radiologist stored the catheter improperly and made it brittle.”? No, he chose to remain silent until questioned in a deposition and asked point blank: "What would you determine to make this catheter become friable?” Then he answered: "Improper storage.”

In this case the malpractice is not the injury. It *51is the improper storage of the catheter. The plaintiff did not discover the malpractice until the deposition of Dr. Gallagher. Under Dyke v Richard, supra, the statute of limitations did not start to run until the malpractice was discovered.

The order granting accelerated judgment is vacated, and the cause is remanded to the circuit court for further proceedings.

Costs to plaintiff.

Danhof, P. J., concurred.