Michigan Supreme Court

Lansing, Michigan

Bridget M. McCormack, Chief Justice

David F. Viviano,

Chief Justice Pro Tem

Stephen J. Markman

Brian K. Zahra

Richard H. Bernstein

Elizabeth T. Clement

Megan K. Cavanagh,

Justices

Order 

December 6, 2019

159400

WILLIAM McCALLUM,

Plaintiff-Appellee,

v SC: 159400

COA: 345695

Ingham CC: 17-000113-NH

MID-MICHIGAN PHYSICIANS, PC,

DR. DOUGLAS VANDERJAGT,

WILLIAM CLARK, PA, and

WILLIAM JORDAN, PA,

Defendants-Appellants. 

_________________________________________/

On order of the Court, the application for leave to appeal the February 26, 2019 

order of the Court of Appeals is considered, and it is DENIED, because we are not 

persuaded that the question presented should now be reviewed by this Court.

MARKMAN, J. (dissenting). 

I respectfully dissent from this Court’s order denying leave to appeal. The appeal 

in this medical malpractice case centers on whether plaintiff William McCallum timely 

filed his action. In September 2010, plaintiff visited an emergency room and underwent a 

CT scan that revealed a possible metastatic mass in his liver. Plaintiff visited defendant 

Mid-Michigan Physicians PC for follow-up care. In late 2010, plaintiff underwent an 

ultrasound, which was read as evidencing no liver lesion but signs of gallbladder disease. 

In February 2016, plaintiff underwent an MRI, which revealed a neuroendocrine 

carcinoma in his liver, and instituted the instant action, alleging error in the reading of the 

ultrasound and in the follow-up care provided by defendant. 

In the course of discovery, defendant William Jordan, a physicians’ assistant at 

Mid-Michigan Physicians, testified that, upon receiving the ultrasound results in 2010, 

he: (a) called plaintiff, (b) referred plaintiff for gallbladder surgery, and (c) instructed 

plaintiff there was still cause to be concerned about the liver mass on the CT scan and 

that the gallbladder surgeon could visually assess his liver during surgery. A notation in 

plaintiff’s medical chart corroborates Jordan’s testimony that he called plaintiff and 

referred him to a gallbladder surgeon, but plaintiff never scheduled such an appointment. 

And in his deposition in 2017, plaintiff professed a lack of memory concerning: (a) his 

follow-up appointment at Mid-Michigan Physicians, (b) having undergone an ultrasound 

procedure, (c) Jordan having called him following the ultrasound procedure, or (d) Jordan 

having referring him to the gallbladder surgeon. Defendants moved for summary 
2

disposition, contending that plaintiff’s claim was untimely because he should have 

discovered the claim in late 2010.

“In general, a plaintiff in a medical malpractice case must bring his claim within 

two years of when the claim accrued, or within six months of when he discovered or 

should have discovered his claim.” Solowy v Oakwood Hosp Corp, 454 Mich 214, 219 

(1997), citing MCL 600.5805 and 600.5838. Because plaintiff instituted this action more 

than two years after the ultrasound, he must rely upon the six-month discovery rule to 

satisfy the statute of limitations. The six-month discovery rule states in pertinent part:

[A]n action involving a claim based on malpractice may be commenced at 

any time within the applicable period prescribed in sections 5805 or 5851 to 

5856, or within 6 months after the plaintiff discovers or should have 

discovered the existence of the claim, whichever is later. The plaintiff has 

the burden of proving that the plaintiff neither discovered nor should have 

discovered the existence of the claim at least 6 months before the expiration 

of the period otherwise applicable to the claim. [MCL 600.5838(2) 

(emphasis added).]

The “six-month discovery rule period begins to run in medical malpractice cases when 

the plaintiff, on the basis of objective facts, is aware of a possible cause of action.” 

Solowy, 454 Mich at 232. “This occurs when the plaintiff is aware of an injury and a 

possible causal link between the injury and an act or omission of the physician.” Id. 

Defendants argue that plaintiff has not sustained his burden of advancing evidence 

supporting the conclusion that the six-month discovery rule did not commence in 2010 

after the conflicting results from the CT and ultrasound procedures. The trial court 

rejected this argument, relying upon plaintiff’s deposition testimony to conclude there 

was a dispute of fact as to whether Jordan called plaintiff following the ultrasound. For 

two reasons, I would remand to the Court of Appeals as on leave granted to consider the 

reasonableness of that conclusion. First, in order to dispute Jordan’s testimony and the 

partially corroborating medical chart notation, plaintiff relies exclusively upon his 

testimony that he lacks memory regarding the events surrounding his healthcare in late 

2010. But a lack of memory, however genuine, does not constitute affirmative evidence 

of anything. This is particularly true where plaintiff bore the burden of establishing that 

he had not discovered his claim in 2010. Second, even assuming that plaintiff did 

affirmatively testify that Jordan did not call him (or even that he did not remember the

call but that he would have followed Jordan’s advice and scheduled an appointment with 

the gallbladder surgeon had he received such a call), the lack of follow-up after the 

ultrasound should have placed plaintiff reasonably on notice of a possible medical 

malpractice claim. 
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.

 December 6, 2019 

a1203

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Clerk

This, in my judgment, constitutes the Court’s third recent denial of leave in a case 

in which serious questions surround the proper application of the six-month discovery 

rule. See also Jendrusina v Mishra, 501 Mich 958 (2018); Hemphill v Suleiman, 502 

Mich 910 (2018). Rather than denying leave to appeal, I would remand to the Court of 

Appeals as on leave granted.