No Separate Post-Treatment Concealment, No Tolling: Fraudulent-Concealment Tolling Narrowly Applied in Michigan Medical Malpractice After Woodford v. Castro

Introduction

This commentary analyzes the Michigan Supreme Court’s June 6, 2025 order in Tracie Woodford v. Dan J. Castro, M.D., et al. (SC 167904), which denied leave to appeal from a Court of Appeals judgment affirming dismissal of a medical malpractice action as untimely. The order itself sets no new binding precedent; however, Justice Welch issued a substantial dissent signaling concern that the Court of Appeals misapplied longstanding authority on fraudulent concealment in the medical-malpractice limitations and repose framework. The dissent urges a more searching look at whether the alleged performance of a knowingly unnecessary surgery can itself amount to “fraudulent conduct” that prevents discovery of a claim, thereby tolling the two-year statute of limitations and defeating the six-year statute of repose under Michigan law.

The parties are plaintiff-appellant Tracie Woodford and defendants-appellees Dr. Dan J. Castro and related Bronson entities. The underlying dispute centers on a 2012 bilateral endoscopic sinus surgery that plaintiff alleges was medically unnecessary, followed by postoperative breathing difficulties. Plaintiff did not sue within two years, but after learning in 2022 of Dr. Castro’s federal indictment for healthcare fraud—and other allegations of unnecessary surgeries—she served a notice of intent and filed suit in 2023, invoking Michigan’s discovery rule and fraudulent-concealment doctrines to avoid both the statute of limitations and the statute of repose.

Key issues include:

What a plaintiff must plead and prove to trigger the fraudulent-concealment tolling provision in medical-malpractice cases (MCL 600.5855 and MCL 600.5838a(2)-(3)).
Whether the alleged intentional recommendation and performance of an unnecessary procedure, coupled with nondisclosure, can itself constitute “fraudulent conduct” that prevents discovery of a claim, even absent a separate, post-treatment cover-up.
How older precedents—Kroll v Vanden Berg (1953) and Eschenbacher v Heir (1961)—and the Court of Appeals’ decision in Sills v Oakland General Hospital (1996) fit within the modern statutory framework governing accrual, discovery, limitation, and repose in medical-malpractice litigation.

Summary of the Opinion

The Michigan Supreme Court denied the application for leave to appeal the Court of Appeals’ November 7, 2024 judgment. As a result, the Court of Appeals’ decision stands: plaintiff’s complaint—filed in 2023 over a 2012 surgery—was dismissed under MCR 2.116(C)(7) as time-barred. The intermediate court concluded plaintiff had not sufficiently pleaded fraudulent concealment because the only “fraudulent” conduct alleged was the unnecessary surgery itself; no distinct, post-surgery act was alleged that was designed to conceal the malpractice or divert the plaintiff from discovering the claim.

Justice Welch dissented from the denial of leave, stating she would have ordered oral argument on the application. She expressed concern that the Court of Appeals may have overextended older precedents to require an independent act of concealment beyond the alleged intentional performance of an unnecessary procedure and nondisclosure of its lack of necessity. In Justice Welch’s view, if a physician knows a procedure is unnecessary yet prescribes and performs it, the act coupled with silence can itself be “fraudulent conduct” that prevents discovery of a malpractice claim within the meaning of MCL 600.5838a(2)(a) and the fraudulent-concealment statute, MCL 600.5855. Justice Hood did not participate.

Analysis

Precedents Cited and Their Influence

Kroll v Vanden Berg, 336 Mich 306 (1953)

In Kroll, a surgeon allegedly left part of a broken needle in the patient’s body and failed to disclose it. The needle was discovered over five years later by another physician. Although the Court affirmed a defense verdict because the plaintiff had not sued within two years of learning of the needle’s presence, the opinion recognized that a physician’s “withholding” of known information about a surgical error can constitute fraudulent concealment of a cause of action. The gravamen is knowledge of the error and a failure to disclose it to the patient.

Eschenbacher v Heir, 363 Mich 676 (1961)

In Eschenbacher, the plaintiff alleged a missed diagnosis and failure to treat a skull fracture and sought to rely on fraudulent concealment to overcome the limitations bar. The Court emphasized that the doctor-patient relationship and knowledge disparities must be critically examined, but it rejected fraudulent concealment on those facts because the physician had not discovered the fracture, had not concealed it, and had actually referred the patient to a doctor who ultimately discovered it. Thus, absence of knowledge of the condition—paired with an absence of purposeful concealment—defeated tolling.

Sills v Oakland General Hospital, 220 Mich App 303 (1996)

In Sills, the Court of Appeals held that a misdiagnosis, standing alone, is not an affirmative act to conceal a claim. The plaintiff alleged that her condition was mischaracterized as arthritis rather than necrosis, but she did not plead independent fraudulent acts intended to conceal the claim. Reiterating the Eschenbacher principle, the court held that negligent diagnosis itself does not constitute fraudulent concealment.

How these cases shaped the Court of Appeals’ approach

Collectively, these precedents differentiate between:

Negligent medical care or misdiagnosis (which, without more, is not fraudulent concealment), and
Knowing errors or intentional misconduct that are not disclosed to the patient (which can be fraudulent concealment if they prevent discovery of the claim).

The Court of Appeals read Eschenbacher and Sills to require an act separate from the underlying negligence—some postsurgery deception, diversion, or cover-up—to qualify as concealment. It stressed that plaintiff knew a bilateral procedure was planned despite unilateral symptoms and experienced postoperative breathing issues—facts the court considered sufficient to put her on inquiry notice. On that framing, the indictment and broader allegations of unnecessary surgeries did not convert the initial malpractice into concealment as to this plaintiff’s claim.

Justice Welch’s view of these precedents

Justice Welch reads Kroll and Eschenbacher together to mean: silence about a known or intentional medical error can be fraudulent concealment; mere failure to discover a condition, standing alone, is not. She sees plaintiff’s allegations here as qualitatively different from Sills-type misdiagnosis: the complaint asserts that Dr. Castro knew the surgery was unnecessary and nevertheless recommended and performed it, all while failing to disclose that lack of necessity. In her view, that combination—an intentional lack of medical necessity and nondisclosure—is itself fraudulent conduct that prevents discovery. She cautions that demanding a separate, additional “cover-up step” risks forcing patients to second-guess their physicians before consenting to treatment and creates a perverse asymmetry: patients could toll when a doctor conceals a postsurgery mistake but not when a doctor intentionally subjects them to medically unnecessary surgery.

Legal Reasoning and Doctrinal Context

Michigan’s medical-malpractice timing rules

Accrual: A medical-malpractice claim accrues “at the time of the act or omission that is the basis for the claim,” regardless of when the plaintiff discovers it (MCL 600.5838a(1)).
Limitations: The action must be commenced within two years or within six months after discovery or when discovery should have occurred, whichever is later (MCL 600.5838a(2)).
Repose: Normally, no filing later than six years after the act or omission (MCL 600.5838a(2)), subject to specified exceptions.
Fraudulent-concealment exception: The six-year repose “does not apply if discovery of the existence of the claim was prevented by the fraudulent conduct of the health care professional” (MCL 600.5838a(2)(a)), and the plaintiff may sue within the periods referenced in MCL 600.5838a(3) and MCL 600.5855 after discovery.
General fraudulent-concealment statute: If a liable person “fraudulently conceals the existence of the claim or the identity” of a liable person, the action may be commenced within two years after discovery, even though it would otherwise be time-barred (MCL 600.5855).

The Court of Appeals’ rule preserved by the denial of leave

Because the Supreme Court denied leave, the Court of Appeals’ analytical approach remains the operative guidance in this case: to trigger fraudulent-concealment tolling, the plaintiff must allege more than the underlying medical negligence itself; there must be some independent act or omission designed to conceal the cause of action after the malpractice—such as an affirmative misrepresentation, diversion, or a failure to disclose a known error—with sufficient particularity to show that discovery was prevented. On the panel’s reasoning, knowledge of a planned bilateral surgery, unilateral symptoms, and postoperative breathing issues were all warning signs, and the later 2022 indictment did not retroactively transform the original malpractice into concealment.

Justice Welch’s proposed framing

The dissent emphasizes the distinction between negligent care (not concealment) and intentional misconduct coupled with non-disclosure (potential concealment). If a physician knows a surgery is unnecessary, that physician’s recommendation and performance of it is, in effect, a misrepresentation of medical necessity that masks the existence of a malpractice claim, particularly where the doctor’s silence deprives the patient of the essential fact that would have revealed the claim. On a motion under MCR 2.116(C)(7), courts accept well-pleaded allegations as true and draw reasonable inferences in the nonmovant’s favor. Given that posture, the dissent would not foreclose tolling as a matter of law without fuller consideration of whether the combination of alleged knowledge, intentional unnecessary treatment, and silence fits the statutory phrase “fraudulent conduct” that “prevented” discovery.

Pleading particularity and proof

Fraud and fraudulent concealment must be pleaded with particularity in Michigan. While the dissent acknowledges there may be “reasonable debate” over whether the complaint here had enough specificity tying the alleged pattern of unnecessary surgeries to this plaintiff’s procedure, she rejects a categorical legal rule that the underlying intentional unnecessary surgery and silence can never constitute concealment. Rather, the question should be whether the physician’s knowledge and nondisclosure prevented discovery—an inquiry rooted in the facts and the fiduciary nature of the doctor-patient relationship.

Impact and Practical Implications

Immediate effect: No new Supreme Court precedent, but the Court of Appeals’ narrow approach stands

The denial of leave leaves intact a reading that generally requires an act of concealment distinct from the malpractice itself to invoke tolling.
Claims predicated on “unnecessary surgery” that occurred long ago may continue to face dismissal unless plaintiffs can identify and plead with particularity post-treatment misrepresentations, diversions, or nondisclosures of known errors aimed at preventing discovery.

The dissent as a roadmap for future cases

Justice Welch’s opinion invites litigants to develop a record and plead facts showing the physician’s knowledge that the procedure was unnecessary and the physician’s nondisclosure of that fact—arguing those together can amount to “fraudulent conduct” under MCL 600.5838a(2)(a) and MCL 600.5855.
Plaintiffs will likely bolster complaints with specific patient-level facts: what the doctor knew and when; test results or CT findings contradicting necessity; statements made to obtain consent; and how those statements prevented discovery.
Defendants will focus on “red flags” that should have alerted a reasonable patient, on the absence of post-procedure concealment, and on distinguishing negligent misjudgment from knowing misconduct.

Doctrinal clarity needed

How to reconcile Kroll (silence about a known surgical error is concealment) with Sills (misdiagnosis alone is not) when the alleged misconduct is an intentionally unnecessary procedure.
Whether the statutory phrase “fraudulent conduct” in MCL 600.5838a(2)(a) can be satisfied by the recommendation and performance of an unnecessary surgery coupled with nondisclosure, without more.
What constitutes sufficient particularity at the pleading stage to survive an MCR 2.116(C)(7) motion when concealment is alleged.

Policy considerations

Requiring patients to identify an additional, post-procedure “cover-up” risks placing an unrealistic burden on patients to second-guess their doctors in real time, undermining trust inherent in the physician-patient relationship.
Conversely, a lax standard could blur the line between negligent care and fraud, expanding tolling beyond what the Legislature contemplated and weakening repose.

Complex Concepts Simplified

Statute of limitations: The time limit to file a lawsuit after a claim “accrues.” In Michigan medical malpractice, typically two years from the act/omission, or six months from when the plaintiff discovers (or should have discovered) the claim, whichever is later (MCL 600.5838a(2)).
Statute of repose: An outer limit that bars suits a set number of years after the event, regardless of discovery. For medical malpractice, generally six years from the act/omission, with specific exceptions (MCL 600.5838a(2)).
Discovery rule: A rule permitting filing within a short period (six months) after the plaintiff actually discovers, or should have discovered, the existence of the claim (MCL 600.5838a(2)); it does not, by itself, extend the six-year repose.
Fraudulent concealment (tolling): If a defendant prevents discovery of a claim through fraudulent acts or silence where there is a duty to disclose, the plaintiff may file within two years after discovery (MCL 600.5855). In medical-malpractice cases, the six-year repose does not apply if the health professional’s fraudulent conduct prevented discovery (MCL 600.5838a(2)(a)), and MCL 600.5838a(3) describes the resulting filing window.
Negligence vs. fraud: Negligence is a failure to exercise reasonable care. Fraud requires deception—an intentional or knowing misrepresentation or concealment of a material fact, or silence in the face of a duty to disclose, with the purpose or effect of preventing discovery.
MCR 2.116(C)(7): A procedural rule allowing dismissal when a claim is barred by an applicable statute (like limitations or repose). Courts may consider documents beyond the complaint and must accept well-pleaded allegations as true, resolving reasonable inferences in the plaintiff’s favor.
Notice of Intent (NOI): A pre-suit notice requirement in Michigan medical-malpractice cases (MCL 600.2912b). Serving an NOI can toll the limitations period for a defined period, but it does not revive claims extinguished by repose unless an exception applies.

Conclusion

The Michigan Supreme Court’s denial of leave in Woodford v. Castro leaves in place the Court of Appeals’ narrow application of fraudulent-concealment tolling in medical-malpractice cases: absent specific, independent acts of concealment beyond the malpractice itself, plaintiffs may not avoid the two-year limitations period or the six-year statute of repose. That approach relies on Eschenbacher and Sills and treats misdiagnosis or negligent treatment, without more, as insufficient to constitute concealment.

Justice Welch’s dissent, however, articulates a competing and consequential view: when a physician knowingly recommends and performs an unnecessary procedure and fails to disclose its lack of necessity, that combination may itself constitute “fraudulent conduct” that prevents discovery under MCL 600.5838a(2)(a) and MCL 600.5855—without any additional, post-procedure “cover-up.” The dissent underscores the fiduciary nature of the doctor-patient relationship and the impracticality of demanding that patients second-guess their physicians at the point of care.

For now, practitioners should assume rigorous pleading burdens: specify what the physician knew, what was said or not said, why nondisclosure impeded discovery, and how those facts fit the statutory phrase “fraudulent conduct” that prevented discovery. Defense counsel will continue to argue that awareness of the procedure’s scope, symptomatic discrepancies, and postoperative complications place a patient on inquiry notice and that any later indictment or pattern evidence does not, by itself, establish concealment as to the plaintiff’s claim.

Though the order sets no new Supreme Court precedent, the dissent marks a clear invitation for future litigants to present well-developed records on intentional unnecessary procedures, physician knowledge, and nondisclosure. The next properly framed case could give the Court an opportunity to reconcile Kroll, Eschenbacher, and Sills within the modern statutory scheme and to clarify when, precisely, “fraudulent conduct” prevents discovery in Michigan medical-malpractice litigation.