Opinion
No. 112856.
October 22, 1999.
On order of the Court, the application for leave to appeal from the July 24, 1998 decision of the Court of Appeals is considered, and it is DENIED, because we are not persuaded that the question presented should be reviewed by this Court.
I would grant leave to appeal because the inconsistent decisions in the lower courts warrant our further scrutiny. The trial court granted summary disposition on grounds that the statute of limitation for medical malpractice applied. The Court of Appeals reversed, finding that plaintiff's claim sounded in ordinary negligence.
Defendant-physician treated plaintiff for chemical dependency. Plaintiff alleged his employment was terminated when defendant failed to timely "complete and submit" a medical report to plaintiff's employer. The trial court granted summary disposition to defendant because plaintiff's claim sounded in medical malpractice and had not been filed within the two-year limitation period. MCL 600.5805(4); MSA 27A.5805(4). The Court of Appeals reversed, holding that plaintiff's claim sounded in ordinary negligence, making it timely under the three-year limitation period. MCL 600.5805(8); MSA 27A.5805(8).
A claim sounds in medical malpractice, rather than ordinary negligence, when it raises issues involving medical judgment that are beyond the common knowledge and experience of the jury. Dorris v Detroit Osteopathic Hosp Corp, 460 Mich. 26, 45-46 (1999). Key to this determination is whether the alleged negligence occurred within the course of a professional relationship. Id., p 45. Moreover, a plaintiff may not evade the medical malpractice limitation period by artful drafting. Simmons v Apex Drug Stores, Inc, 201 Mich. App. 250, 253 (1993).
The trial judge appropriately read the party's claim as a whole, looking beyond the procedural labels to determine the exact nature of the claim. See MacDonald v Barbarotto, 161 Mich. App. 542 (1987). The trial court opined that the omitted report could be completed only by the "attending physician," which cannot be disassociated from the physician-patient relationship. Quoting the definition of "malpractice" found in MacDonald — a failure of a member of the medical profession, employed to treat a case professionally, to fulfill the duty to exercise that degree of skill, care and diligence exercised by members of the same profession, practicing in the same or similar locality, in light of the present state of medical science — the trial court concluded that the question was whether plaintiff's complaint alleged that defendant failed to exercise the degree of diligence exercised by other physicians.
The trial court summarized plaintiff's complaint, concluding that the allegations arose from the physician-patient relationship, and that the allegations constituted a failure of a member of the medical profession, employed to treat a case professionally, to fulfill the duty to exercise that degree of skill, care and diligence exercised by members of the same profession. The court concluded:
This case may be compared to that of Antal v Porretta, 165 Mich. App. 238 (1987), in which the Court of Appeals stated, "[T]he mere transmission of records or reports to facilitate the referral or a subsequent incidental contact between plaintiff and the physician will not constitute treating or otherwise serving [the patient]," (at p 241). In Antal, the court determined that "the mailing of the prescription . . . was merely to facilitate insurance payment," and did not extend the physician-patient relationship. Id. In other words, the physician-patient relationship exists first and foremost, and subsequent paperwork is ancillary to that relationship. Similarly, the paperwork in the instant case was to facilitate Plaintiff returning to work, and was ancillary to both Plaintiff's last date of treatment, and the relationship between Plaintiff and Defendant. That relationship was one of physician-patient. Plaintiff's allegation that Defendant owed him a duty is based on a duty that only the treating physician, Defendant, can perform: completion of an attending physician's report.
The trial court's cogent reasoning persuades me that the Court of Appeals conclusion that the conduct involved mere ordinary negligence is suspect. While mailing a medical report may be a ministerial act, its completion or preparation obviously requires the exercise of medical judgment.
In fact, plaintiff alleged that the report could only be completed by a treating physician. But for the professional relationship between them, plaintiff would have no cause of action without regard to the date of the filing of plaintiff's complaint. I am not persuaded that the trial court erred in holding that the duty to complete the report sounded in professional malpractice.
The only claim of duty alleged in the complaint arises from the physician-patient relationship. Plaintiff approached defendant as his attending physician and sought his professional opinion regarding his ability to return to work. It is only because of the relationship that the report could have, would have, or should have been filed. Because the alleged duty can only arise from the doctor-patient relationship, the resulting tort claim appears to be one for malpractice only. The Court of Appeals contrary conclusion is suspect.
Moreover, the trial court concluded that the act of completing the attending physician's report could only be completed with the exercise of professional judgment. The report could not be completed by a nurse, nurse's aide or even another doctor with whom defendant might be associated. The report required the inclusion of defendant's professional recommendations regarding plaintiff's diagnosis and ability to return to work. Thus, the act of completing the report was not incidental to defendant's role as plaintiff's treating physician, but goes to the heart of that role. It involved defendant's considered judgment and expertise as to plaintiff's diagnosis and prognosis for plaintiff's return to work.
Weaver, C.J., joins in the statement of Justice Corrigan.
Court of Appeals No. 194781.