Michigan Supreme Court Lansing, Michigan
Megan K. Cavanagh, Chief Justice Brian K. Zahra Richard H. Bernstein Elizabeth M. Welch Kyra H. Bolden Kimberly A. Thomas Noah P. Hood,
Justices
Order
June 6, 2025
167904
TRACIE WOODFORD,
Plaintiff-Appellant, v SC: 167904
COA: 366267
Calhoun CC: 2023-000297-NH
DAN J. CASTRO, M.D., BRONSON BATTLE
CREEK HOSPITAL, BRONSON HEALTH CARE
GROUP, INC., BRONSON HEALTHCARE
MIDWEST, d/b/a BRONSON HEALTHCARE
MIDWEST OTOLARYNGOLOGY (ENT) HEAD
& NECK SURGERY, and BRONSON OTOLARYNGOLOGY HEAD & NECK SURGERY SPECIALISTS - BATTLE CREEK, Defendants-Appellees.
___________________________________________/ On order of the Court, the application for leave to appeal the November 7, 2024 judgment of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the questions presented should be reviewed by this Court. WELCH, J. (dissenting).
I would have ordered oral argument on the application because I am concerned that the Court of Appeals might have misapplied existing precedent to bar plaintiff's medical malpractice lawsuit.
Plaintiff alleges that in 2012, defendant Dan J. Castro, M.D., performed a bilateral endoscopic sinus surgery that he knew was medically unnecessary. Plaintiff alleges that the recommendation for surgery was contrary to a maxillofacial CT scan and that for three weeks following the surgery she had constant difficulty breathing. Plaintiff later sought separate treatment for sleep apnea, but she did not commence a medical malpractice lawsuit within two years of the surgery.
Instead, plaintiff filed her complaint in February 2023, and she filed a notice of intent to sue before filing the complaint. In addition to Dr. Castro, various other entities, including the doctor's former employer (Bronson Battle Creek Hospital), were named as
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defendants. Acknowledging that her suit would otherwise be time-barred, plaintiff pleaded that she learned about criminal matters and civil litigation involving Dr. Castro performing medically unnecessary surgeries and fraudulently billing Medicaid. These allegations extended back to 2012 or earlier. Plaintiff also points to a February 2022 press release from the United States Attorney's Office for the Western District of Michigan, which discusses the factual basis for the indictment of Dr. Castro for alleged violations of 18 USC 1347. Plaintiff's notice of intent was served on defendants within six months of Dr. Castro's indictment.
Rather than answering the complaint, defendants filed a motion to dismiss under MCR 2.116(C)(7), arguing that the lawsuit was untimely. In response, plaintiff argued that the underlying fraud by Dr. Castro (i.e., silence or misrepresentation as to the necessity of the surgery and failure to later disclose the same) triggered the discovery rule exception or fraudulent concealment exception to the two-year statute of limitations and the six-year statute of repose. In other words, plaintiff claimed that her lawsuit was timely filed following discovery of the fraudulently concealed claim.
Although there may be a reasonable debate as to whether plaintiff's pleadings were sufficiently specific to the factual basis for her claim of fraud, I do not think her legal theory is without merit. A plaintiff usually must commence a medical malpractice action within two years of the accrual of a claim or "within 6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later." MCL 600.5838(2). A medical malpractice claim "accrues at the time of the act or omission that is the basis for the claim of medical malpractice, regardless of the time the plaintiff discovers or otherwise has knowledge of the claim." MCL 600.5838a(1).
Section 5838a includes a six-year statute of repose but contains an exception for a case in which "discovery of the existence of the claim was prevented by the fraudulent conduct of the health care professional against whom the claim is made . . . ." MCL 600.5838a(2)(a) (emphasis added). Similarly, the fraudulent concealment exception, MCL 600.5855, states:
If a person who is or may be liable for any claim fraudulently conceals the existence of the claim or the identity of any person who is liable for the claim from the knowledge of the person entitled to sue on the claim, the action may be commenced at any time within 2 years after the person who is entitled to bring the action discovers, or should have discovered, the existence of the claim or the identity of the person who is liable for the claim, although the action would otherwise be barred by the period of limitations. [Emphasis added.]
When a claim has been fraudulently concealed, the lawsuit can be commenced "at any time within the applicable period prescribed in section 5805 or sections 5851 to 5856, or within
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6 months after the plaintiff discovers or should have discovered the existence of the claim, whichever is later." MCL 600.5838a(3).
The issue here, as the Court of Appeals framed it, was whether plaintiff could establish that discovery of the potential claim was concealed by fraudulent conduct without pleading some additional postsurgery action or misrepresentation that was designed to prevent plaintiff from subsequently discovering the unnecessary surgery. The panel held that plaintiff's pleadings were insufficient because she alleged that the only fraudulent conduct that occurred was the performance of an improper medical procedure; nothing independent was done to conceal the fact that the procedure may have been unnecessary. The panel here relied upon Eschenbacher v Heir, 363 Mich 676 (1961), which stated that "[i]t is the cause of action which must be fraudulently concealed by failing to disclose the fact of injury resulting from the malpractice, by diverting the patient from discovering the malpractice, or the party responsible therefor, or by other means the effect of which is to conceal from the patient his right to sue." Id. at 682.
The panel reasoned that because plaintiff here knew that Dr. Castro intended to perform a bilateral surgery despite symptoms being limited to one side, she should have been alerted to the possibility of malpractice. Therefore, any alleged fraud by silence or claims related to the performance of other surgeries were irrelevant. The panel also noted that plaintiff's postsurgery symptoms should have been indicative of a possible claim. I am concerned that the Court of Appeals may have overextended the precedent that it relied on. First, the panel distinguished Kroll v Vanden Berg, 336 Mich 306 (1953). In Kroll, the defendant surgeon left part of a broken surgical needle in the abdominal cavity of the plaintiff following a medical procedure, and the defendant never disclosed this error to the plaintiff. Kroll, 336 Mich at 307-308. The needle was discovered more than five years later following an x-ray taken by a different doctor. Id. at 310. There was a factual dispute as to whether the defendant knew of the alleged error, but the trial court directed a verdict for the defendant. Id. at 307. This Court observed that the defendant's
"withholding" of knowledge of the needle could have met the existing fraudulent concealment statute as "fraudulently concealing from the plaintiff her cause of action." Id. at 312. But the directed verdict was affirmed because the plaintiff did not file a lawsuit within two years of first being verbally informed of the stray needle by a different doctor. Id.
Next, in Eschenbacher, the plaintiff alleged a failure to diagnose and treat a fractured skull following an automobile crash but filed the lawsuit outside the two-year limitations period. Eschenbacher, 363 Mich at 678. The plaintiff claimed that fraudulent concealment should have extended the limitations period. Id. This Court observed that courts must "critically examine the relationship between patient and doctor, the disparities between them in knowledge and experience and the reliance placed upon the doctor by the
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patient in determining whether there has been fraudulent concealment of a cause of action."
Id. at 680.
The Eschenbacher Court found it significant that the plaintiff's claim was that the doctor should have taken an x-ray of the skull and that if he had, the fracture might have been discovered. Id. The plaintiff did not plead that the fracture had been discovered and then concealed; in fact, the first doctor referred the plaintiff to the person who discovered the fracture. Id. at 680, 682-683. On those facts, there was no evidence of an intent or purpose to conceal. Id. at 682-683. As a result, the suit was untimely. Id. at 684. Then, in Sills v Oakland Gen Hosp, 220 Mich App 303 (1996), the plaintiff argued that the defendants made an improper diagnosis, prescribed excessively high doses of steroids, and neglected to provide an adequate warning of the risks associated with steroids. Id. at 306. The only alleged fraud pleaded by the plaintiff was that one doctor misrepresented her condition by diagnosing arthritis rather than necrosis. Id. at 309. The Court of Appeals held that such an allegation was not a claim that the doctor "acted fraudulently to conceal her potential cause of action" because a "misdiagnosis is not an affirmative act to conceal a claim." Id. at 310.
Kroll and Eschenbacher make clear that in some instances, the silence of a treating physician as to improper medical treatment can constitute fraudulent concealment. Both decisions suggest that there must be some evidence that the physician knew of a medical error and chose not to disclose it. Kroll implies that leaving a broken surgical needle in a patient without disclosing it is a known medical error that is fraudulently concealed by silence. Eschenbacher suggests that silence resulting from the failure to discover and diagnose a medical condition is not fraudulent concealment in the absence of evidence suggesting knowledge of the medical condition. The decision in Sills merely reaffirms Eschenbacher's holding that making a medically erroneous diagnosis is not fraudulent concealment absent evidence that the physician knew that the diagnosis was incorrect. In other words, the negligent practice of medicine (i.e., malpractice) does not alone constitute fraudulent conduct, but silence about known or intentional medical errors can be fraudulent concealment.
None of these decisions are directly analogous to the situation in this case. Plaintiff here is not merely alleging negligence by Dr. Castro. Rather, she asserts that Dr. Castro knowingly misdiagnosed her condition and ordered a bilateral endoscopic sinus surgery when Dr. Castro knew that it was not medically necessary. It seems to me that if a physician knows a medical procedure is unnecessary but prescribes and performs it anyway, then the very act of making the prescription and performing the procedure is an act of fraud that conceals or misrepresents the existence of a possible malpractice claim. If not, then patients would seemingly be required to second-guess their doctors before receiving treatment. And a plaintiff could obtain relief after the statute of limitations expired if a
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I, Larry S. Royster, Clerk of the Michigan Supreme Court, certify that the foregoing is a true and complete copy of the order entered at the direction of the Court. June 6, 2025
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Clerk doctor affirmatively covered up a surgical mistake, but a plaintiff whose surgery was never needed could not.
Accepting plaintiff's allegations as true, I am not certain that the Court of Appeals correctly applied the existing precedent. As a result, I would have ordered oral argument on the application. I respectfully dissent from the Court's decision not to do so. HOOD, J., did not participate.
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