Shane v. Mouw

Mackenzie, J..

(dissenting). I respectfully dissent. Plaintiff’s complaint, filed August 2, 1979, alleged medical malpractice. The circuit judge granted defendant’s motion for accelerated judgment pursuant to GCR 1963, 116.1(5) on the ground that defendant last treated plaintiff on May 3, 1977, and that plaintiff’s action was therefore barred by the two-year statute of limitations for malpractice, MCL 600.5805(4); MSA 27A.5805(4). Accelerated judgment grounded on the statute of limitations is improper where disputed questions of material fact exist. GCR 1963, 116.3. Accordingly, for the purposes of this appeal, we must accept as correct plaintiff’s version of the facts. Plaintiff claimed that she last saw defendant in July, 1977. On August 7, 1977, plaintiff’s son contacted defendant on plaintiff’s behalf and asked that plaintiff be hospitalized. Defendant declined *742to permit plaintiffs hospitalization and suggested that he prescribe additional medication for plaintiff. Plaintiff was then admitted to a hospital under the care of another doctor.

MCL 600.5838(1); MSA 27A.5838(1) provides in relevant part:

"A claim based on the malpractice of * * * a member of a state licensed profession * * * accrues at the time that person discontinues treating or otherwise serving the plaintiff in a professional or pseudoprofessional capacity as to the matters out of which the claim for malpractice arose.”

In Dyke v Richard, 390 Mich 739, 744; 213 NW2d 185 (1973), the Court explained that the foregoing statute was based on the rule stated in DeHaan v Winter, 258 Mich 293, 296-297; 241 NW 923 (1932):

"When did plaintiff’s cause of action accrue? Until treatment of the fracture ceased the relations of patient and physican continued, and the statute of limitations did not run. Schmit v Esser, 183 Minn 354 (236 NW 622), and reported with annotations in 74 ALR 1312. While decisions are not in accord upon this question, we are satisfied that in such an action as this the statute of limitations does not commence to run while treatment of the fracture continues. Failure to give needed continued care and treatment, under opportunity and obligation to do so, would constitute malpractice. During the course of treatment plaintiff was not put to inquiry relative to the treatment accorded him.”

In some cases, a telephone conversation between physician and patient which takes place after the last examination of the patient may constitute "treatment or other services”. DeGrazia v Johnson, 105 Mich App 356; 306 NW2d 512 (1981). In *743DeGrazia, the Court emphasized that it was dealing with a unique factual situation. The Court noted that the conversation took place approximately one month after the last examination, referred to the patient’s knee on which the doctor had operated, and did not appear to have been a device, when it occurred, for prolonging the period of limitations. In view of the DeGrazia Court’s emphasis on the unique nature of the factual situation it faced, we cannot read DeGrazia as establishing a rule that all telephone conversations between physician and patient which refer to the patient’s condition constitute "treatment or other services”. Whether such a conversation constitutes "treatment or other services” depends on the nature of the conversation.

In Kelleher v Mills, 70 Mich App 360, 365-366; 245 NW2d 749 (1976), the Court said:

"We reject any suggestion that refusal to treat is 'treating or otherwise serving the plaintiff within the meaning of MCL 600.5838; MSA 27A.5838. To hold as such, would for all practical purposes, extend the statute of limitations indefinitely. Plaintiffs could continually request treatment to extend the statute of limitations against a doctor who had previously terminated service to the plaintiff.” (Footnote omitted.)

Plaintiff attempts to distinguish Kelleher here by pointing to defendant’s offer to prescribe additional medication. Kelleher is distinguishable; what happended in the present case was not that defendant refused to treat, but that plaintiff refused treatment. However, I am not persuaded that such a distinction should make a difference to the outcome of the case. DeHaan shows that the statute was designed to prevent the running of the period of limitations during the existence of the *744physician-patient relationship. Such a relationship is consensual; it is no more established by a refusal to accept treatment than by a refusal to treat.

Plaintiffs reliance on Thomas v Golden (Amended Opinion), 51 Mich App 693, 695; 214 NW2d 907 (1974), is similarly misplaced. In that case, the Court said:

"The crucial issue for decision is whether the granting of an appointment by defendant to plaintiff at her request constitutes 'otherwise serving’ within the meaning of the statute. We hold that it does, even though the appointment was not kept and defendant did nothing further for plaintiff.”

The activity which the court in Thomas found to constitute "otherwise serving” plaintiff was an activity which defendant performed at plaintiffs request. Thomas would seem to be of uncertain precedential value since the Supreme Court affirmed the decision but declined to adopt the reasoning set forth in the Court of Appeals opinion. Thomas v Golden, 392 Mich 779 (1974). To the extent that Thomas is inconsistent with the result I reach here, I would decline to follow that opinion. I would affirm.