Medical malpractice; Timeliness; The discovery rule; MCL 600.5838a(2); The six-year statute of repose; Fraudulent concealment; MCL 600.5855; Sills v Oakland Gen Hosp; A defendant’s silence despite knowledge of a potential cause of action; Kroll v Vanden Berg; Eschenbacher v Hier; Regarding fraud as a continuing affirmative act; Draws v Levin

Holding that plaintiff’s medical malpractice claims were time-barred, the court affirmed summary disposition for defendants. In 2012, defendant-Dr. Castro performed sinus surgery on plaintiff. After he was indicted in 2022 “for performing unnecessary sinus surgeries on other patients[,]” she filed suit. She first contended on appeal that “her complaint was timely under the discovery rule” in MCL 600.5838a(2). The court disagreed, noting the six-year statute of repose included in that statute. Because she filed suit over 10 years after her surgery, she could not rely on the discovery rule “to save her claims.” She further argued the statute of repose did not apply “because Dr. Castro engaged in fraudulent conduct that concealed the existence of her claims as described in MCL 600.5838a(2)(a) and” 600.5855. But as in Sills, plaintiff did not plead fraudulent concealment in the complaint. She asserted “there are two exceptions to the rule requiring her to allege the specific acts or misrepresentations that constituted fraudulent concealment. She first contends that a defendant’s silence despite knowledge of a potential cause of action will constitute fraudulent concealment if the parties have a fiduciary relationship.” But the court found her reliance on Kroll was “misplaced because that case did not establish a broad fiduciary exception to the general rule that mere silence is insufficient to establish fraudulent concealment.” And the court in Eschenbacher “did not state that a doctor’s mere silence was sufficient to establish fraudulent concealment because of the fiduciary relationship between a physician and patient.” In addition, it “relied to a significant extent on the fact that the defendant physician referred the plaintiff to his family doctor, who ultimately discovered the physician’s malpractice.” In this case, court found that plaintiff’s “difficulty breathing and consultation with other specialists following surgery should have alerted her of a possible cause of action, including a claim alleging that her surgery was unnecessary.” Under the facts here, “Dr. Castro’s silence did not constitute fraudulent concealment of plaintiff’s claims . . . .” The court also rejected her argument as to a second exception related to situations where “the basis of a cause of action is fraud[.]” It held that “MCL 600.5855 required plaintiff to file her complaint within two years after she experienced her postsurgical symptoms. Because she failed to do so, her complaint was untimely.”